Terms & Conditions
1. CONTRACT AND ACCEPTANCE
CUSTOMER and MLS TECHNOLOGIES, INC. (MLS) agree that, unless otherwise expressly agreed in writing signed by both parties, any purchase orders and subsequent sales of MLS products are made under these terms and conditions and that MLS SHALL NOT BE BOUND BY CUSTOMER’S TERMS AND CONDITIONS. The failure of CUSTOMER to object within a reasonable time in writing to the terms shall constitute acceptance of these terms and conditions.
2. CANCELLATION/CHANGE
CUSTOMER may, with written notification to MLS thirty (30) days prior to the scheduled delivery date, cancel without charge any products scheduled for shipment. Any cancellation of deliveries less than thirty (30) days prior to the scheduled shipping date shall be subject to a cancellation charge as set forth in the table below.
Cancellation Notice Charge
1-30 Days 15% Charge
BY MUTUAL AGREEMENT, an order may be suspended or changes may be made in quantity, designs, specifications, place of delivery, methods of shipment and packaging. If any such change causes an increase or decrease in the price of the equipment or in the time required for performance, MLS shall make an equitable adjustment and notify the buyer within thirty (30) days from the date the change is agreed upon. In any event, changes shall not be binding upon nor be put into effect by MLS unless confirmed by MLS’s appropriate representative.
3. WARRANTY
MLS warrants that products delivered hereunder shall be free from defects in material and workmanship from the receipt date of the product at CUSTOMER’S facility for a period as stated in the product manual. MLS does not warrant that the operation of products will be uninterrupted or error free. The sole and exclusive remedy for breach of any warranty concerning the goods shall be repair or replacement of defective parts, or a refund of the purchase price, to be determined at the option of MLS. MLS shall not be liable for injury to property other than the goods themselves. Product(s) returned for warranty repair or replacement, which are found to be non-defective or damaged due to improper use,
installation or handling will be returned to CUSTOMER with a handling charge of $100 per unit plus materials and labor. Products returned to MLS must be shipped prepaid. An “RMA” (return material authorization) number must be obtained from MLS prior to shipment to MLS.
The above warranties do not apply to defects resulting from improper or inadequate maintenance, installation, repair or calibration by Customer; Customer or third party supplied hardware or software, interfacing or supplies; unauthorized modification; improper use or operation outside of the Specifications for the product; abuse, negligence, accident, loss or damage in transit; or improper site preparation.
OTHER THAN THE LIMITED WARRANTY STATED ABOVE, MLS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE QUALITY OF PRODUCT BEYOND THE DESCRIPTION OF THE GOODS ON THE FACE OF THIS CONTRACT. MLS SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
4. SHIPMENT
All shipments are to be made F.O.B. point of shipment, freight collect, at MLS’s facility located in Redmond, Washington, and title shall pass upon tender of product to the carrier specified by CUSTOMER at the aforementioned shipping point and in good condition. In all cases, risk of loss or damage to any such product in transit shall fall upon CUSTOMER, whose responsibility it shall be to file claims with the carrier, wherein the carrier shall be deemed to be the agent of CUSTOMER. MLS accepts no responsibility and shall not be responsible for such claims filed with the carrier. The scheduled delivery date is MLS’s best estimate of the time the order will be shipped from our factory and we assume no liability for loss, damage, or consequential damages due to delays.
5. PRICES
The sales price(s) for products will include the costs of MLS’s usual factory test and inspections, as well as the cost of packing and crating in accordance with the standards of MLS. Clerical errors are subject to correction. Stated prices are exclusive of any federal, state and municipal or other government tax now or hereinafter imposed upon production, storage, sale, transportation, or use of the products described herein.
Such taxes applied directly to the sale hereunder shall be paid by the CUSTOMER, or in lieu thereof the CUSTOMER shall provide a tax exemption certificate acceptable to the taxing authorities.
6. PAYMENTS
Terms of payment shall be according to customer credit evaluation by MLS and it will writing on the quote and invoice. Interest accrues on overdue invoices at 1.5% per month from the original due date of the invoice.
MLS may at any time, when, in its opinion the financial condition of CUSTOMER warrants, either modify or suspend the terms of credit, demand payment before delivery and suspend performance until such time as these revised terms are met. Payment shall be made in U. S. dollars.
7. DESIGN RIGHTS
By the acknowledgment or acceptance of this order, MLS does not relinquish, sell, or transfer, or in any way release any of the designs, design drawings or data, or any other information or rights relating to the subject matter of this order.
8. INDEMNITY AND LIMITATION OF LIABILITY
No action shall be brought for any breach of this order or contract more than one (1) year after the accrual of such cause of action. IN NO EVENT SHALL MLS BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES. CUSTOMER’S SOLE REMEDY FOR ANY BREACH HEREUNDER SHALL BE LIMITED TO REMEDIES SET FORTH HEREIN. MLS recommends against the use of its products as critical components in any life support devices or systems whose failure to perform can reasonably be expected to cause significant injury to a human. CUSTOMER assumes all risk for such application and agrees to indemnify MLS for all damages which may be incurred due to the use of MLS’S devices in transportation, diagnosis or treatment of humans.
9. PATENT INFRINGEMENT PROTECTION
MLS shall, at its own expense, defend any litigation resulting from sales of MLS’s equipment to the extent that such litigation alleges that MLS’s products or any part thereof infringes any United States patent, copyright, or trademark, provided that such claim does not arise from the use of MLS’s equipment in combination with equipment or devices not made by MLS or from modification of MLS’s equipment, and further provided that CUSTOMER notifies MLS immediately upon its obtaining notice of such impending claim and cooperates fully with MLS in preparing a defense. If CUSTOMER provides to MLS the authority, assistance, and information MLS needs to defend or settle such claim, MLS shall pay any final award of damages in such suit and any expense CUSTOMER incurs on MLS’s written request, but MLS shall not be liable for a settlement made without its prior written consent. If MLS’s equipment is held to be infringing and the use thereof is enjoined, MLS shall, at its option, either (i) procure for the CUSTOMER the right to use MLS’S equipment, (ii) replace it with equipment which does not constitute patent infringement, or (iii) remove such equipment and refund the payment(s) made therefore by CUSTOMER. The foregoing states the CUSTOMER’s sole remedy for, and MLS’S entire liability and responsibility for, infringement of any patent, trademark, or copyright relating to MLS’s equipment provided hereunder.
THIS PATENT INDEMNITY IS IN LIEU OF ANY OTHER STATUTORY OR IMPLIED WARRANTY AGAINST INFRINGEMENT.
10. PROPRIETARY INFORMATION
All proprietary information, which is specifically designated as such, disclosed by either party to the other in connection with this order, shall be used solely for installation, operation, maintenance, and support of equipment furnished under this order only and shall be protected by the recipient from disclosure to others with the same degree of care as that which is accorded to its own proprietary information. Information will not be subject to this provision if it is or becomes a matter of public knowledge without the fault of the recipient party, if it was a matter of written record in the recipient party’s files prior to disclosure to it by the other party, or if it was or is received by the recipient party from a third person under circumstances permitting its disclosure.
11. ATTORNEY FEES AND COSTS
The prevailing party will be entitled to all costs and reasonable attorney fees in any collection, action, arbitration, suit or appeal arising from Customer’s default hereunder.
12. DISPUTES
Any dispute, controversy or other contested issue related to or arising out of this agreement, shall be settled by binding arbitration before a single arbitrator sitting in King County, Washington, pursuant to the then current rules of the American Arbitration Association.
13. CONFIDENTIALITY
MLS technologies acknowledges and agrees that if, in the performance of the Services provided during the term of the Agreement, confidential information is received by MLS technologies, it shall hold all such confidential information in the strictest confidence as a fiduciary and shall not use or disclose to any third persons such confidential information or any portion thereof.
14. EXPORT
The products which are the subject of this Agreement may be export-controlled under the rules and regulations of the U.S. Department of State and/or U.S. Department of Commerce. The CUSTOMER is responsible for obtaining the appropriate licenses for conducting such activity and holds MLS harmless for any violation of such export rules and regulations.
(Rev. 0106)