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Commercial Terms of Sale

Unless otherwise agreed to by MetrologyWorks in writing, the Commercial Terms of Sale apply to direct commercial purchasers (including Small, Medium and Large Business, and Government and Public sector customers) of MetrologyWorks Products and commercial end-users who purchase through a reseller. By placing your order, you accept and are bound to the Commercial Terms of Sale below.

1. Introduction

These Commercial Terms of Sale (the “Agreement”), made between you (“you” or “Customer”) and MetrologyWorks, govern your purchase and use of Products and Services from MetrologyWorks. “MetrologyWorks” means MetrologyWorks Inc. or the MetrologyWorks Affiliate identified on the MetrologyWorks sales documentation. “MetrologyWorks Affiliate” means a direct or indirect subsidiary of MetrologyWorks Inc. This Agreement is effective upon the earliest of (i) your issuance of a purchase order to MetrologyWorks, (ii) your acceptance of these terms, or (iii) your agreement with a reseller that references this Agreement. The Products and Services are solely for your internal use and may not be resold. If you purchased through a reseller or distributor, final prices and sales terms will be between you and the reseller or distributor; however, this Agreement applies to your possession and use of Products and Services.

2. Quotes, Ordering, and Payment

Except for subsection B, this Section applies only to direct purchases from MetrologyWorks.

A. Quotes and Orders. “Order” means your order of Products or Services, either through MetrologyWorks.com or other online process, by submitting a purchase order that references a MetrologyWorks quote, or by executing a MetrologyWorks order form. Your Order is subject to acceptance by MetrologyWorks. Acceptance of one Order is independent from any other Order. Quoted prices are effective until the expiration date of the quote, but may change due to shortages in materials or resources, increase in the cost of manufacturing, or other factors. Orders for Third-Party Products are subject to availability and are cancellable only by MetrologyWorks. MetrologyWorks is not responsible for pricing, typographical, or other errors in any offer, and may cancel orders affected by such errors.

B. Changed or Discontinued Products or Services. MetrologyWorks may revise or discontinue Products and Services at any time, including after Customer places an Order, but prior to MetrologyWorks’s shipment or performance. As a result, Products and Services Customer receives might differ from those ordered. However, MetrologyWorks-branded Products will materially meet or exceed all published specifications for the Products. Parts used in repairing or servicing Products may be new, equivalent-to-new, or reconditioned.

C. Shipping Charges; Title; Risk of Loss. Shipping and handling charges are not included in Product prices unless expressly indicated at the time of sale. Title to Hardware passes from MetrologyWorks to Customer upon shipment. Delivery of Software is FOB Origin. Loss or damage that occurs during shipping (including returns) is the responsibility of the party that selected the carrier. Shipping and delivery dates are estimates only. You must notify MetrologyWorks within 14 days of your invoice date if you believe any part of your Order is missing, wrong, or damaged.

D. Payment. Invoices are due and payable within the time period stated on your invoice.

3. Returns

MetrologyWorks Products are sensitive measurement instruments and are therefore provided under a limited return policy and subject to a 30% restocking fee unless defective. You have 14 days from the date of purchase to email or call us for a return merchandise authorization number (RMA#). No return will be accepted without a RMA#.

Defective Items – if you receive an item that is damaged or defective, please contact us immediately. Defective returns will be accepted for exchange or repair, at our discretion, within 14 days from the date of purchase. If there is no exchange or repair we will impose a 30% restocking fee. No refunds or credit will be granted after 14 days. Items must be returned to us in the original packaging with all accessories and labels, in the identical condition as received.

A product must be diagnosed “defective” by a member of our Technical Support Staff before we can accept it as a defective return.

4. Limited Warranty

A. THE LIMITED WARRANTIES FOR METROLOGYWORKS PRODUCTS SHALL BE AS STATED IN THE DOCUMENTATION PROVIDED WITH THE PRODUCTS. IF THERE IS NO SUCH DOCUMENTATION, THEN THE WARRANTIES SHALL BE AS STATED AT METROLOGYWORKS.COM/WARRANTYTERMS (“EXPRESS WARRANTIES”).

B. THE ABOVE WARRANTIES DO NOT COVER DAMAGE DUE TO EXTERNAL CAUSES, SUCH AS ACCIDENT, ABUSE, MISUSE, FAILURE TO OBSERVE SMR CLEANING INSTRUCTIONS, SERVICES NOT PERFORMED OR AUTHORIZED BY METROLOGYWORKS, USAGE NOT IN ACCORDANCE WITH PRODUCT INSTRUCTIONS, NORMAL WEAR AND TEAR, OR USE OF PARTS AND COMPONENTS NOT SUPPLIED OR INTENDED FOR USE WITH THE PRODUCTS OR SERVICES. ANY WARRANTY FOR A THIRD-PARTY PRODUCT IS PROVIDED BY THE PUBLISHER, PROVIDER, OR ORIGINAL MANUFACTURER. ALL THIRD-PARTY PRODUCTS ARE PROVIDED
BY METROLOGYWORKS “AS IS.”

C. EXCEPT AS EXPRESSLY STATED ABOVE OR IN THE EXPRESS WARRANTIES, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, METROLOGYWORKS (INCLUDING AFFILIATES, CONTRACTORS, AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AND OFFICERS), ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO ANY OF THE PRODUCTS OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY (i) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY, OR NON-INFRINGEMENT; (ii) FOR ANY THIRD-PARTY PRODUCTS; (iii) FOR THE PERFORMANCE OF OR RESULTS TO BE OBTAINED FROM ANY PRODUCTS OR SERVICES; OR (iv) THAT THE PRODUCTS OR SERVICES WILL OPERATE OR BE PROVIDED WITHOUT INTERRUPTION OR ERROR. The MetrologyWorks-branded Products and Services are not fault-tolerant and are not designed or intended for use in hazardous environments requiring fail-safe performance, such as any application in which the failure of the Products or Services could lead directly to death, personal injury, or severe physical or property damage (collectively, “High-Risk Activities”). MetrologyWorks expressly disclaims any express or implied warranty of fitness for High-Risk Activities.

5. Confidentiality

“Confidential Information” means information that is designated as confidential or should reasonably be understood to be confidential. Confidential Information may only be disclosed to the receiving party’s personnel, professional advisors, agents, and subcontractors (“Representatives”), on a “need-to-know” basis in connection with this Agreement. Representatives shall be bound to treat the Confidential Information under terms at least as restrictive as those herein, and the receiving party shall be liable for unauthorized disclosures by its Representatives. Each party will use at least the same degree of care as it employs with respect to its own Confidential Information, but not less than a commercially reasonable standard of care. The foregoing shall not apply to information that (i) is independently developed without use of the other party’s Confidential Information; (ii) has been obtained from a source which is not under a confidentiality obligation; or (iii) is or becomes publicly available without fault of the receiving party. If receiving party must disclose Confidential Information as required by law, it shall give reasonable prior notice to the disclosing party. These obligations shall continue for 3 years from the initial date of disclosure, except that obligations related to information about a party’s intellectual property shall never expire.

6. Indemnification

A. If you purchased Products or Services directly from MetrologyWorks, MetrologyWorks shall defend and indemnify you against any third-party claim that MetrologyWorks-branded Products or Services (excluding Third-Party Products and open source software) infringe or misappropriate that third party’s United States (“U.S.”) patent, copyright, trade secret, or other intellectual property rights (“Claim(s)”). In addition, if MetrologyWorks receives prompt notice of a Claim that MetrologyWorks believes is likely to result in an adverse ruling, then MetrologyWorks shall at its option, (i) obtain a right for you to continue using such Products or Deliverables or for MetrologyWorks to continue performing the Services; (ii) modify such Products or Services to make them non-infringing; (iii) replace such Products or Services with a non-infringing equivalent; or (iv) if you purchased directly from MetrologyWorks, refund any pre-paid fees for the allegedly infringing Services that have not been performed or provide a reasonable depreciated or pro rata refund for the allegedly infringing Product or Deliverables. MetrologyWorks shall have no obligation for any claim arising from (a) modifications of the Products and Services that were not performed by or on behalf of MetrologyWorks; (b) misuse, or the combination or use with Third-Party Products (the combination of which causes the claimed infringement); or (c) MetrologyWorks’s compliance with your written specifications, including the incorporation of any software or other materials or processes you provide or request. MetrologyWorks’s duty to indemnify and defend the Claim is contingent upon: (x) your prompt written notice of the Claim; (y) MetrologyWorks’s right to solely control the defense and resolution of the Claim; and (z) your cooperation in defending and resolving the Claim. These are your exclusive remedies for any third-party intellectual property claim, and nothing in this Agreement or elsewhere will obligate MetrologyWorks to provide any greater indemnity.

B. You shall defend and indemnify MetrologyWorks against any third-party claim resulting or arising from: (i) your failure to obtain any appropriate license, intellectual property rights, or other permissions, regulatory certifications, or approvals associated with technology or data provided by you, or associated with software or components requested by you to be used with, or installed or integrated as part of the Products or Services; (ii) your violation of MetrologyWorks’s intellectual property rights; (iii) any inaccurate representation regarding the existence of an export license or any allegation made against MetrologyWorks due to your alleged violation of applicable export laws; or (iv) your transferring or providing access to Excluded Data (as defined below) to MetrologyWorks.

C. Each party shall defend and indemnify the other against any third-party claim for personal bodily injury, including death, where the injury has been exclusively caused by the indemnifying party’s gross negligence or willful misconduct in connection with this Agreement.

7. Compliance with Laws

A. In performing its obligations under this Agreement, each party agrees to comply with all laws and regulations applicable to such party including the customs and export control laws and regulations of the U.S.; and the country in which the Products or Services are delivered or performed. Customer is subject to and solely responsible for compliance with the export control and economic sanctions laws of the United States and other applicable jurisdictions, as well as comply with MetrologyWorks’s trade compliance policies. Customer’s purchase may not be used, sold, leased, exported, re-exported, or transferred except with prior written authorization by MetrologyWorks’s trade compliance and/or legal teams and in compliance with such laws, including, without limitation, export licensing requirements, end-user, end-use, and end-destination restrictions, and prohibitions on dealings with sanctioned individuals and entities, including but not limited to persons on the Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List or the U.S. Department of Commerce Denied Persons List. Customer represents and warrants that it is not the subject or target of, and that Customer is not located in a country or territory that is the subject or target of, economic sanctions of the United States and other applicable jurisdictions.

B. Customer certifies that all items (including hardware, software, technology and other materials) it provides to MetrologyWorks for any reason that contain or enable encryption functions either (i) satisfy the criteria in the Cryptography Note (Note 3) of Category 5, Part 2 of the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies or (ii) employ key length of 56-bit or less symmetric, 512-bit asymmetric or less, and 112-bit or less elliptic curve. MetrologyWorks is not responsible for determining whether any Third-Party Product to be used in the Products and Services satisfies regulatory requirements of the country to which such Products or Services are to be delivered or performed, and MetrologyWorks shall not be obligated to provide any Product or Service where the resulting Product or Service is prohibited by law or does not satisfy the local regulatory requirements.

C. MetrologyWorks’s privacy policies explain how MetrologyWorks treats your personal information and protects your privacy and can be found at MetrologyWorks.com/privacy.

8. Termination or Suspension

A. Suspension or Modification of Services. MetrologyWorks may suspend, terminate, withdraw, or discontinue all or part of the Services when MetrologyWorks believes, in its sole judgment, that you are involved in any fraudulent or illegal activities.

B. Termination. Either party may terminate a Service Agreement or Software Agreement if the other party commits a material breach and the breach is not cured within 90 days of receipt of written notice. Termination of any Service Agreement will not terminate other Service Agreements, and termination of all Service Agreements will not terminate this Agreement. MetrologyWorks may terminate this Agreement and all Service Agreements and Software Agreements immediately, if (i) you fail to make any payment when due; (ii) you declare bankruptcy or are adjudicated bankrupt; (iii) a receiver or trustee is appointed for you or substantially all of your assets; or (iv) you purchased through a reseller and, as applicable, the agreement between you and such reseller expires or is terminated, the agreement between MetrologyWorks and such reseller expires or is terminated, or your reseller is delinquent on its payment obligations to MetrologyWorks. Further, MetrologyWorks may terminate a Service Agreement immediately if you are acquired by or merge with a competitor of MetrologyWorks. Upon termination of this Agreement, all rights and obligations under this Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations, and any obligations that expressly or by implication are intended to survive termination.

11. Limitation of Liability

A. METROLOGYWORKS WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS OR SERVICES. EXCEPT FOR YOUR BREACH OF SECTIONS 3(D) OR 7, OR YOUR VIOLATION OF METROLOGYWORKS’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL HAVE LIABILITY FOR THE FOLLOWING: (i) LOSS OF REVENUE, INCOME, PROFIT, OR SAVINGS; (ii) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF A SYSTEM OR NETWORK OR THE RECOVERY OF SUCH; (iii) LOSS OF BUSINESS OPPORTUNITY; (iv) BUSINESS INTERRUPTION OR DOWNTIME; (v) THE PRODUCTS, DELIVERABLES OR THIRD-PARTY PRODUCTS NOT BEING AVAILABLE FOR USE; OR (vi) THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES.

B. METROLOGYWORKS’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING PRODUCTS AND SERVICES) IN ANY 12 MONTH PERIOD SHALL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY METROLOGYWORKS DURING THE PRIOR 12 MONTHS OF THIS AGREEMENT FOR THE SPECIFIC PRODUCT OR SERVICE GIVING RISE TO SUCH CLAIM(S).

C. THESE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR METROLOGYWORKS’S SALE OF PRODUCTS OR SERVICES TO CUSTOMER, AND WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.

9. Additional Terms

A. Independent Subcontractor Relationship; Assignment; Subcontracting. The parties are independent contractors. Neither party will have any rights, power or authority to act or create an obligation on behalf of the other party except as specified in this Agreement. Neither party’s employees, agents, nor consultants shall be considered under any circumstances to be employees of the other party. MetrologyWorks has the right to assign, subcontract, or delegate in whole or in part this Agreement, or any of its rights, duties, obligations or liabilities provided that if it subcontracts its duties in providing Services, MetrologyWorks shall remain responsible for the performance of such Services under this Agreement. You may not assign this Agreement without MetrologyWorks’s permission.

B. Excused Performance. A party shall not be liable to the other for any delay in performing its obligations if the delay is caused by circumstances beyond its reasonable control, provided that the other party is promptly notified in writing. If the circumstance lasts longer than 30 days, then the other party may terminate, in whole or in part, this Agreement by giving written notice to the delayed party. This Section shall not relieve either party of its obligations under this Agreement (including payment), but rather will only excuse a delay in performance.

C. Governing Law. This Agreement and any related Service Agreement(s), and ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND METROLOGYWORKS, including their affiliates, contractors, and agents, and each of their respective employees, directors, and officers (a “Dispute”) will be governed by the laws of the State of Missouri, without regard to conflicts of law. The UN Convention for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply.

D. Venue. The parties agree that any Dispute shall be brought exclusively in the state or federal courts located in Jackson County, Missouri. The parties agree to submit to the personal jurisdiction of such courts.

E. Limitation Period. NEITHER PARTY Shall be liable for any claim brought more than 2 years after the cause of action for such claim first arose.

F. Notices. Notice to MetrologyWorks under this Agreement or any related Service Agreement must be in writing and sent by registered or certified mail (postage prepaid first-class mail and return receipt requested) by overnight delivery service or by electronic mail to the address below, and will be effective upon receipt.

MetrologyWorks Inc.
27208 E US HWY 24, Buckner, Missouri 64016
sales@metrologyworks.com

G. Entire Agreement; Severability. This Agreement is the entire agreement with respect to its subject matter and supersedes all prior or contemporaneous communications or agreements that may exist. In entering into this Agreement, neither party is relying upon any representations or statements of the other that are not fully expressed in this Agreement; rather each party is relying on its own judgment and due diligence and expressly disclaims reliance upon any representations or statements not expressly set forth in this Agreement. If you purchased directly from MetrologyWorks, any preprinted terms on your purchase order shall be of no force or effect. Modifications to this Agreement will be made only through a written amendment signed by both parties. If any provision of this Agreement is found to be void or unenforceable, such provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of this Agreement will remain in full force. No rights may arise by implication or estoppel, other than those expressly granted herein.

Commercial Terms of Sale (United States)

Page update: 29 Mar 2018

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