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TERMS AND CONDITIONS OF SALE

Unless otherwise expressly agreed in writing, all sales are subject to the following terms and conditions:

 

GENERAL

Radiation Products Design, Inc. (“RPDinc”) hereby offers for sale to the buyer on the express condition that the buyer agrees to accept and be bound by the terms and conditions set forth herein. Any provisions contained in any document issued by the buyer are expressly rejected and if the terms and conditions in this Agreement differ from the terms of the buyer’s offer, this document shall be construed as a counter offer and shall not be effective as an acceptance of the buyer’s document. The buyer’s receipt of products provided will constitute the buyer’s acceptance of this Agreement. This is the complete and exclusive statement of the contract between RPDinc and the buyer with respect to the buyer’s purchase of the products. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by RPDinc and the buyer. RPDinc’s failure to object to terms contained in any subsequent communication from the buyer will not be a waiver or modification of the terms set forth herein.

 

PRICE

All prices published by RPDinc or quoted by RPDinc’s representatives may be changed at any time without notice. All prices quoted by RPDinc or RPDinc’s representatives are valid for thirty (30) days, unless otherwise stated in writing. All prices for the products will be as specified by RPDinc or, if no price has been specified or quoted, will be RPDinc’s price in effect at the time of shipment. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions which are not part of RPDinc’s original price quotation.

 

TAXES AND OTHER CHARGES

Prices for the products exclude all sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any products covered hereby, all of which taxes and duties must be paid by the buyer. If the buyer claims any exemption, the buyer must provide a valid, signed certificate or letter of exemption for each respective jurisdiction.

 

TERMS OF PAYMENT

RPDinc may invoice the buyer upon shipment for the price and all other charges payable by the buyer in accordance with the terms on the sales order, quote or pro-forma invoice. If no payment terms are stated on the sales order, quote or pro-forma invoice, payment shall be net thirty (30) days from the date of invoice. If the buyer fails to pay the amount when due, the buyer shall pay RPDinc interest thereon at a periodic rate of two percent (2%) per month (or, if lower, the highest rate permitted by law), together with all costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) incurred by RPDinc in collecting such overdue amounts or otherwise enforcing RPDinc’s rights hereunder. RPDinc reserves the right to require from the buyer full or partial payment in advance, or other security that is satisfactory to RPDinc, at any time that RPDinc believes in good faith that the buyer’s financial condition does not justify the terms of payment specified. All payments shall be made in U.S. Dollars.

 

DELIVERY, CANCELLATION OR CHANGES BY THE BUYER

The products will be shipped to the destination specified by the buyer, F.O.B. RPDinc's shipping point. RPDinc will have the right, at its election, to make partial shipments of the products and to invoice each shipment separately. RPDinc reserves the right to stop delivery of products in transit and to withhold shipments in whole or in part if the buyer fails to make any payment to RPDinc when due or otherwise fails to perform its obligations hereunder. All shipping dates are approximate only, and RPDinc will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond RPDinc’s reasonable control. In the event of a delay due to any cause beyond RPDinc’s reasonable control, RPDinc reserves the right to terminate the order or to reschedule the shipment within a reasonable period of time, and the buyer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay. Products as to which delivery is delayed due to any cause within the buyer’s control may be placed in storage by RPDinc at the buyer’s risk and expense and for the buyer’s account. Orders in process may be canceled only with RPDinc’s written consent and upon payment of RPDinc’s cancellation charges. Orders in process may not be changed except with RPDinc’s written consent and upon agreement by the parties as to an appropriate adjustment in the purchase price therefore. Credit will not be allowed for products returned without the prior written consent of RPDinc and upon payment of RPDinc’s restock charges.

 

TITLE AND RISK OF LOSS

Notwithstanding the trade terms indicated above and subject to RPDinc’s right to stop delivery of products in transit, title to and risk of loss of the products will pass to the buyer upon delivery of possession of the products by RPDinc to the carrier.

 

WARRANTY

RPDinc warrants that the products will operate or perform substantially in conformance with RPDinc’s published specifications and be free from defects in material and workmanship, when subjected to normal, proper and intended usage by properly trained personnel, for one year from date of shipment. RPDinc agrees during the Warranty Period, to repair or replace, at RPDinc’s option, defective products so as to cause the same to operate in substantial conformance with said published specifications; provided that the buyer shall (a) promptly notify RPDinc in writing upon the discovery of any defect, which notice shall include the product model and serial number (if  applicable) and details of the warranty claim; and (b) after RPDinc’s review, RPDinc will provide the buyer with service data and/or a Return Material Authorization (“RMA”) number, then, if applicable, the buyer may return the defective products to RPDinc with all costs prepaid by the buyer. Replacement parts may be new or refurbished, at the election of RPDinc. All replaced parts shall become the property of RPDinc. Shipment to the buyer of repaired or replacement products shall be made in accordance with the delivery provisions of  RPDinc’s Terms and Conditions of Sale. Consumables are expressly excluded from this warranty.

Notwithstanding the foregoing, products supplied by RPDinc that are obtained by RPDinc from an original manufacturer or third party supplier are not warranted by RPDinc, but RPDinc agrees to assign to the buyer any warranty rights in such product that RPDinc may have from the original manufacturer or third party supplier, to the extent such assignment is allowed by such original manufacturer or third party supplier.

In no event shall RPDinc have any obligation to make repairs, replacements or corrections required, in whole or in part, as the result of (i) normal wear and tear, (ii) accident, disaster or event of force majeure, (iii) misuse, fault or negligence of or by the buyer, (iv) use of the products in a manner for which they were not designed, (v) causes external to the products such as, but not limited to, power failure or electrical power surges, (vi) improper storage and handling of the products or (vii) use of the products in combination with equipment or software not supplied by RPDinc. If RPDinc determines that products for which the buyer has requested warranty services are not covered by the warranty hereunder, the buyer shall pay or reimburse RPDinc for all costs of investigating and responding to such request at RPDinc’s then prevailing time and materials rates. If RPDinc provides repair services or replacement parts that are not covered by this warranty, the buyer shall pay RPDinc therefore at RPDinc’s then prevailing time and materials rates. Any installation, maintenance, repair, service, relocation or alteration to or of, or other tampering with, the products performed by any person or entity other than RPDinc without RPDinc’s prior written approval, or any use of replacement parts not supplied by RPDinc, shall immediately void and cancel all warranties with respect to the affected products.

The obligations created by this warranty statement to repair or replace a defective product shall be the sole remedy of the buyer in the event of a defective product. Except as expressly provided in this warranty statement, RPDinc disclaims all other warranties, whether express or implied, oral or written, with respect to the products, including without limitation all implied warranties of merchantability or fitness for any particular purpose. RPDinc does not warrant that the products are error-free or will accomplish any particular result.

 

INDEMNIFICATION BY RPDINC

RPDinc agrees to indemnify, defend and save the buyer, its officers, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney’s fees) (“Indemnified Items”) for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of RPDinc, its employees, agents or representatives or contractors in connection with the performance of services at the buyer’s premises under this Agreement and (ii) claims that a product infringes any valid United States patent, copyright or trade secret; provided, however, RPDinc shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of the buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a product in combination with equipment or software not supplied by RPDinc where the product would not itself be infringing, (iv) compliance with the buyer’s designs, specifications or instructions, (v) use of the product in an application or environment for which it was not designed or (vi) modifications of the product by anyone other than RPDinc without RPDinc’s prior written approval. The buyer shall provide RPDinc prompt written notice of any third party claim covered by RPDinc’s indemnification obligations hereunder. RPDinc shall have the right to assume exclusive control of the defense of such claim or, at the option of RPDinc, to settle the same. The buyer agrees to cooperate reasonably with RPDinc in connection with the performance by RPDinc of its obligations in this Section.

Notwithstanding the above, RPDinc’s infringement related indemnification obligations shall be extinguished and relieved if RPDinc, at its discretion and at its own expense (a) procures for the buyer the right, at no additional expense to the buyer, to continue using the product; (b) replaces or modifies the product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the product; or (c) in the event (a) and (b) are not practical, refund to the buyer the amortized amounts paid by the buyer with respect thereto, based on a five (5) year amortization schedule. The foregoing indemnification provision states RPDinc’s entire liability to the buyer for the claims described herein.

 

INDEMNIFICATION BY BUYER

The buyer shall indemnify, defend with competent and experienced counsel and hold harmless RPDinc, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of the buyer, its agents, employees, representatives or contractors; (ii) use of a product in combination with equipment or software not supplied by RPDinc where the product itself would not be infringing; (iii) RPDinc’s compliance with designs, specifications or instructions supplied to RPDinc by the buyer; (iv) use of a product in an application or environment for which it was not designed; or (v) modifications of a product by anyone other than RPDinc without RPDinc’s prior written approval.

 

LIMITATION OF LIABILITY

Notwithstanding anything to the contrary contained herein, the liability of RPDinc under these terms and conditions (whether by reason of breach of contract, tort, indemnification, or otherwise, but excluding liability of RPDinc for breach of warranty (the sole remedy for which shall be as provided under WARRANTY above)) shall not exceed an amount equal to the lesser of (a) the total purchase price theretofore paid by the buyer to RPDinc with respect to the product(s) giving rise to such liability or (b) one million dollars ($1,000,000). Notwithstanding anything to the contrary contained herein, in no event shall RPDinc be liable for any indirect, special, consequential or incidental damages (including without limitation damages for loss of use of facilities or equipment, loss of revenue, loss of data, loss of profits or loss of goodwill), regardless of whether RPDinc (a) has been informed of the possibility of such damages or (b) is negligent.

 

EXPORT RESTRICTIONS

The buyer acknowledges that each product and any related software and technology, including technical information supplied by RPDinc or contained in documents (collectively “Items”), is subject to export controls of the U.S. government. The export controls may include, but are not limited to, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries. The buyer shall comply with the EAR and all other applicable laws, regulations, laws, treaties, and agreements relating to the export, re-export, and import of any Item. The buyer shall not, without first obtaining the required license to do so from the appropriate U.S. government agency; (i) export or re-export any Item, or (ii) export, re-export, distribute or supply any Item to any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the U.S. government. The buyer shall cooperate fully with RPDinc in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and shall indemnify and hold RPDinc harmless from, or in connection with, any violation of this Section by the buyer or its employees, consultants, agents, or customers.

 

MISCELLANEOUS

(a) The buyer may not delegate any duties nor assign any rights or claims hereunder without RPDinc’s prior written consent, and any such attempted delegation or assignment shall be void. (b) The rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of Minnesota, without reference to its choice of law provisions. Each party hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts located in Hennepin County, Minnesota, USA, in any action arising out of or relating to this Agreement and waives any other venue to which it may be entitled by domicile or otherwise. (c) In the event of any legal proceeding between the RPDinc and the buyer relating to this Agreement, neither party may claim the right to a trial by jury, and both parties waive any right they may have under applicable law or otherwise to a right to a trial by jury. Any action arising under this Agreement must be brought within one (1) year from the date that the cause of action arose. (d) The application to this Agreement of the U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded. (e) In the event that any one or more provisions contained herein shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall remain in full force and effect, unless the revision materially changes the bargain. (f) RPDinc’s failure to enforce, or RPDinc’s waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision. (g) Unless otherwise expressly stated on the product or in the documentation accompanying the product, the product is intended for research only and is not to be used for any other purpose, including without limitation, unauthorized commercial uses, in vitro diagnostic uses, ex vivo or in vivo therapeutic uses, or any type of consumption by or application to humans or animals. (h) The buyer agrees that all pricing, discounts and technical information that RPDinc provides to the buyer are the confidential and proprietary information of RPDinc. The buyer agrees to (1) keep such information confidential and not disclose such information to any third party, and (2) use such information solely for the buyer’s internal purposes and in connection with the products supplied hereunder. Nothing herein shall restrict the use of information available to the general public (i) Any notice or communication required or permitted hereunder shall be in writing and shall be deemed received when personally delivered or three (3) business days after being sent by certified mail, postage prepaid, to a party at the address specified herein or at such other address as either party may from time to time designate to the other.

 

ACCEPTABLE PAYMENT METHODS

RPDinc prefers to receive payment via ACH or other electronic interface methods that directly exchange funds between the buyer’s and RPDinc’s bank accounts. RPDinc also accepts checks mailed to its location in Albertville, Minnesota. RPDinc does accept credit card payments upon preauthorization at the time of purchase, it does not accept credit card payments after the point of sale.  If the order is originating from a free, web-based, or e-mail forwarding address, prepayment by electronic interface method is the only accepted method of payment.