Terms and Conditions of Sale


 

1.  TERMS AND CONDITIONS:
This contract for sale of goods by EmCal Scientific Inc, hereinafter EmCal, shall be only upon the terms stated herein. Any additional or different terms proposed by the Customer, (whether in any purchase order, acknowledgment or other document now or hereafter submitted by the Customer), will be of no effect upon EmCal unless expressly agreed to in writing by an authorized representative at EmCal’s business office in Poway, California. The terms “contract” and “agreement” are used interchangeably throughout this Exhibit.

2.  ENTIRE AGREEMENT, MODIFICAITON:
This contract constitutes the entire and only agreement between EmCal and the Customer concerning the subject matter covered herein. No modification of this contract shall be binding on EmCal unless agreed to in writing by an authorized representative of EmCal.

3.  PRICES TAXES AND FEES:
Up to date prices are available by contacting EmCal directly. Existing prices are current at the time of publication and are subject to change without notice. All prices quoted are in United States dollars, hereinafter, USD. EmCal reserves the right to correct printing errors and/or out of date prices appearing on its website or literature. EmCal will notify the customer before shipping, if a current price is higher than the price indicated on a customer’s purchase order.

Unless otherwise noted on EmCal’s quotation or proforma invoice, prices do not include applicable sales tax, excise tax, use or other taxes, duties, customs fees, tariffs, Customer’s bank fees, or any other fees now in effect or hereafter levied, which EmCal may be required to pay or collect in connection with the sale of goods to the Customer. Whether or not expressly set forth herein, or in any quotation furnished with respect to the goods, all such taxes, duties, and fees shall be for the account and responsibility of the Customer. Customer agrees to promptly reimburse EmCal, upon request for any such fees, levied on Emcal, as described above.

4.  QUOTATIONS:
EmCal will be happy to provide sales prospects with quotations. Our standard quote is valid for thirty days unless otherwise noted on the quotation or proforma invoice. All requests for quotes should include specific quantities for each line item, any specific shipping instructions, your physical shipping address, your contact phone number, e­mail address, and your desired date of delivery. Note: Our standard shippers are UPS, FedEx and USPS. Only USPS delivers goods to PO Boxes.

5.  EVALUATIONS:
Thirty day product evaluations are available under certain circumstances, and are strictly controlled. They are available only to US or Canadian institutions or companies with established credit. A request for evaluation must be accompanied by a bona fide purchase order form or on a printed letterhead request with an authorized signature agreeing to the terms and conditions. Customers are required to pay the shipping costs, (both ways if it is returned). Returned products must be double boxed, with all materials in the original shipment including packing material, and all instruction manuals. All components and ‘unit of sale’ packaging must be in new, resalable condition. Products and packaging sent back to EmCal in a condition that, in EmCal's sole judgment, are not resalable, will be returned to the Customer and will be invoiced appropriately. It will be the customer’s sole responsibility to return the evaluation product(s) within the allotted evaluation time. Unless a time extension has been requested and agreed to in writing before the evaluation expiration date, any products submitted for evaluation will be considered sold if they have not been returned on or before the evaluation expiration date. “Returned” will be defined as received at EmCal’s shipping address.

6.  PURCHASE ORDERS:
All purchase orders must be in writing and signed, preferably with a purchase order number. They must be accompanied by a “Ship to ”address and a “Bill to” address with any desired delivery times or methods indicated. A bona fide purchase order will be deemed an agreement to these terms and conditions and to any other terms contained in any quotation provided by EmCal.

7.  DEPOSITS AND CANCELLATIONS:
Custom made products and products that require excessive or rarely used inventory, may require a cash deposit from the Customer upon EmCal’s acceptance of the order. The acceptance date will be the date that appears on the Confirming Sales Order sent by EmCal to the Customer. Once EmCal begins work on such products or components the deposit becomes non­refundable for any reason.

If the Customer wishes to cancel an entire order prior to shipment, written notice of cancellation must be submitted to EmCal. If the notice is received by EmCal within fifteen (15), calendar days from the date the order is accepted, the paid invoice amount will be refunded, less any deposit noted above and any bank fees or other expenses, noted in item #3 above, that EmCal has paid to date. If written notice of cancellation is received at EmCal more than fifteen (15), calendar days after the date the order is accepted, ten (10), percent of the invoice amount will be retained by EmCal as liquidated damages for the Customer’s defaulting cancellation hereunder. Once shipment of any part of the order has begun, an order cancellation by the Customer will result in a restocking charge of fifteen (15) percent of the net invoice total, will be incurred plus all shipping amounts and fees that EmCal may have paid to date. A shipment will be deemed to have begun when Emcal’s designated carrier accepts delivery from EmCal or, in the case of a drop shipment, from EmCal’s supplier.

8a.  PAYMENT - DOMESTIC ORDERS:
For the purposes of this contract, ”DOMESTIC ORDERS”, means any order that will be shipped and intended for use or resale within the United States or Canada. Each invoice for goods shipped to an approved account shall be paid net 30 days from the date of invoice, unless otherwise specified. Accounts that have not established credit with EmCal require prepayment by check. EmCal no longer accepts credit cards. EmCal reserves the right to change the terms of payment or to require payment prior to or at the time of delivery if, in EmCal’s opinion, the Customer’s financial condition, the Customer’s failure to pay EmCal for previous invoices in a timely manner, or if other circumstances, in EmCal’s sole judgment, so warrant. Overdue payments shall be subject to a service charge at the rate of 1.5% per month or the maximum permitted by applicable law, whichever is less. If EmCal retains a collection agency or attorney to collect overdue payments all collection costs, including attorney’s fees and court costs, shall be payable by the Customer. Furthermore, the Customer’s failure to pay EmCal for goods sold hereunder shall entitle EmCal, without prior notice to the Customer, to withhold, without penalty, service on such goods.

8b.  PAYMENT - INTERNATIONAL ORDERS:
For the purposes of this agreement,” INTERNATIONAL ORDERS”, means any order that is to be shipped or intended for use or resale outside of the United States or Canada. All international orders must be paid in advance by interbank wire transfer of funds, commonly referred to as T/T. On some occasions EmCal will, if available, accept an international customer’s confirmed, irrevocable letter of credit drawn on a United States bank. All international orders are shipped FOB EmCal’s shipping point in Poway CA.

All taxes, fees, duties, tariffs, charges, including but not limited to fees for certifying any “Certificate of Origin”, or other expenses of any kind that may accrue in connection with any Contract will be for the Customer’s account. If EmCal receives a valid invoice or notice of a charge for any such expense(s), EmCal will notify the Customer in a timely manner. If the charge(s) is/are determined to be valid EmCal will pay the charges and the Customer agrees to promptly reimburse EmCal for any and all such expenses. It is agreed that any fees that EmCal’s bank charges to receive a wire transfer of funds will be for EmCal’s account and EmCal’s responsibility to pay. 

It will be the sole responsibility of the Customer to assure compliance with all international, federal, state, or local laws, regulations, codes, rulings, which are applicable by any regulatory or certifying governmental agencies that, in any manner, affect the Goods or the shipment thereof, set forth in any Contract. All permits, licenses, approvals and inspection fees and sales or use taxes mandated under this Contract shall be secured by the Customer. 

Customers submitting international purchase orders may use the services of a “freight forwarder”. The customer should advise EmCal of their intent to use this shipping method prior to issuing a request for quotation. The Customer will be required to provide EmCal with complete contact information of their “freight forwarder” including the company name, contact name, physical address, e­mail address and website if applicable. When using a “freight forwarder”, the Customer understands and agrees that the “freight forwarder” is acting as Customer’s agent and that EmCal, upon delivery of the goods to Customer’s designated “freight forwarder”, has completed its shipping obligation, and that the entire risk of loss has, at that point, passed to the Customer. Under no circumstance will EmCal initiate or perfect any negotiations, agreements or documents that would involve EmCal’s participating in any direct financial arrangements or creation of any account payable or receivable with the Customer’s “freight forwarder”.

9.  SECURITY INTEREST:
The Customer hereby grants to EmCal a purchase money security interest in and the right to possession of the goods upon the Customer’s default in payment therefore until all payments hereunder have been made in full. Customer agrees to execute any documents requested by EmCal to perfect such security interest. If the Customer fails to pay any amount when due hereunder, EmCal, or its authorized representative, may, without limitation, and without prior notice to the Customer, peacefully enter any premises in which the goods may be found and render them inoperable and/or remove the same. Neither the foregoing nor any provision of this agreement shall constitute an election or limitation of remedies on the part of EmCal.

10. SHIPPING AND DELIVERY:
Unless otherwise agreed to in writing, goods shall be delivered FOB Point(s) of Origin. Title to and risk of loss of all goods shall pass to the Customer on EmCal’s delivery of the goods to the carrier(s). Unless otherwise agreed to in writing all shipping costs shall be on a “prepay and add” basis and be for the account of the Customer. EmCal shall have the right to make shipments and/or deliveries in separate lots and each such shipment or delivery may at EmCal’s option, constitute a distinct and separate contract. EmCal’s primary shipper is UPS and, unless requested otherwise, all shipments are by UPS ground. For international orders, expedited shipping, and other carrier options, please contact EmCal directly before ordering.

11. INSPECTION
The Customer shall promptly inspect the goods upon receipt. The Customer will be deemed to have accepted the goods if the Customer fails to give EmCal written notice of damage, missing or wrong parts, or any other irregularities, within seven (7), days of receipt of goods. In the event of visible damage to the package(s) upon delivery, the Customer is to notify the carrier, and EmCal, before opening the package.

12. DELAYS:
EmCal shall be excused from any delay or failure in performance of this agreement due to acts of God, perils of the sea, fire, flood, epidemic, war, acts of terrorism, civil disorder, government acts or restrictions, accidents, plant conditions, strikes, labor disputes, failure of or delay in transportation, shortages of fuel, energy, labor or materials, failure of EmCal’s supplier(s) to perform its contractual obligations with EmCal, or any other causes beyond EmCal’s reasonable control affecting production, transportation or delivery of the goods.

13. WARRANTY AND LIMITATION OF CONTRACT REMEDIES:
The standard warranty on EmCal”s manufactured products or components is three years and is limited to the replacement or repair of a product found to be defective prior to shipping. Other warranty conditions and restrictions apply. Please see our Warranty Information, for more details. EmCal warrants that the goods, at the time of delivery, shall be free from defects in material and workmanship. The warranty is conditioned upon the Customer’s giving EmCal written notice of any defect within the warranty period of the goods. EXCEPT AS EXPRESSLY STATED HEREIN, EMCAL MAKES NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND TRADE. MINOR COSMETIC IMPERFECTIONS ARE NOT COVERED UNDER THE WARRANTY. EmCal’s obligation and liability under this warranty are limited solely, at EmCal’s option, to: (a) repair or replace the defective product(s), or (b) issue a refund for the purchase price of the defective item(s). EmCal shall not be liable to the Customer for any special, indirect, incidental or consequential damages resulting from breach of warranty or any other provision of this agreement, or for any liability of the Customer to any third party. EmCal’s warranties and obligation hereunder shall terminate without notice to the Customer if the goods are subjected to misuse or alteration, including changes on removal of any serial numbers or identifying marks, or are repaired by other than an EmCal authorized service representative. Brand name products, that EmCal sells, or bundles with their own systems, carry warranties applicable to their own manufactured products. These warranties pass to the customer at the time of delivery. They are in lieu of and take precedence over any conflicting language that may exist under EmCal's standard “Warranty Information”. EmCal will always assist, as needed, in processing these claims.

14. INDEMNITY:
The Customer agrees, by entering into this agreement, regardless of coverage provided by any insurance policy, to pay all costs necessary to indemnify, defend, and hold EmCal harmless from any and against all claims, demands, actions, suits, judgments, losses, damages, attorney’s fees, costs, and/or expenses based upon or arising out of any acts, errors, omissions, fault or negligence of the Customer or its principals, employees, subcontractors, including, but not limited to, its “freight forwarder(s)”, or other agents while performing activities, duties, or use of the goods set forth in this contract. Further, the Customer shall indemnify EmCal in like manner even if the allegations of the claim(s) are groundless, false or fraudulent.

15. RETURNS AND REFUNDS:
EmCal does not accept returns without prior written authorization and in no case if the customer has had the product in excess of 30 days after the ship date. If the circumstances of a return are deemed valid, in the sole discretion of EmCal, a store credit will be issued and an RMA number will be assigned. Cash refunds are issued only if EmCal has made a mistake in shipping the product(s) as ordered and has shipped the wrong item(s). In such a case, Customer agrees to allow Emcal to correct the mistake, at EmCal’s expense before exercising its right to a refund. The customer is responsible for returning any equipment, freight prepaid, in its original unit­of­sale package with all packing materials. All returns, except mistakes made by EmCal, are subject to a 15% restocking fee. Some products, special orders and products containing software may not be returned except to repair or replace a defective or damaged product covered under the manufacturer's warranty.

16. AGREEMENT:
No assignment of rights or delegation of duties under this agreement shall be binding upon EmCal without EmCal’s written consent executed by an authorized representative at EmCal’s offices in Poway, California.

17. DAMAGED ITEMS:
If a shipment arrives with obvious damage do not unpack it. Contact the carrier immediately so they may examine the package, and advise you on filing your claim. If there is hidden damage you should also contact the carrier and photograph the damaged items. In either case notify EmCal as soon as the damage is discovered and we will assist you in any way we can, to expedite your claim with the carrier.

18. BIDS:
EmCal submits dozens of domestic institutional bids every year and we would like to participate in your bids as well. Please include us on your bid list and send us the necessary forms.

19. UPGRADES AND TRADE-INS:
Unless otherwise specified in writing, the price(s) of all upgrades will assume the return of the replaced components in resalable condition and in the original undamaged packaging.

20. APPLICABLE LAW:
This contract shall be governed by the laws of the State of California. The parties expressly consent to the jurisdiction of the Supreme Court, State of California, and County of San Diego.

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