THESE ARE THE CURRENT TERMS AND CONDITIONS OF SALE (“TERMS”) OF ADVANCED TECHNOLOGY SYSTEMS, INC. D/B/A ADVANCEDTEK AND/OR ITS AFFILIATES (COLLECTIVELY, “ADVANCEDTEK”), WHICH APPLY TO ANY SALE OF PRODUCTS, LICENSING OF ACCOMPANYING SOFTWARE, AND/OR THE PROVISION OF SERVICES (THE TERMS “PRODUCTS”, SOFTWARE” AND “SERVICES”, AS DEFINED BELOW). YOU, ON BEHALF OF YOURSELF AS AN INDIVIDUAL, YOUR EMPLOYER, OR ANOTHER ENTITY WHICH HAS NOT PREVIOUSLY ACCEPTED THESE TERMS (YOU AND SUCH ENTITIES, COLLECTIVELY, “CUSTOMER”), REPRESENT AND WARRANT THAT CUSTOMER HAS AUTHORITY TO ACCEPT, AND HAS READ, UNDERSTOOD AND AGREED TO, THESE TERMS. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ANY DOWNLOAD, ACCEPTANCE OR USE BY CUSTOMER OF ANY PRODUCTS, SOFTWARE, AND/OR SERVICES SHALL CONSTITUTE AN IRREVOCABLE ACCEPTANCE OF THESE TERMS. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THESE TERMS, THEN CUSTOMER SHALL PROMPTLY RETURN PRODUCTS, DELETE OR RETURN LICENSED SOFTWARE AND NOT USE ANY RELATED SERVICES.
1. SALE AND PURCHASE; LICENSE.
1.1. Products. AdvancedTek agrees to sell to Customer, and Customer agrees to purchase, the system(s) (“System”), System parts (“Parts”), proprietary resins and thermoplastics and/or other consumables (collectively, “Consumables”), and/or other ancillary products (collectively, the “Products”) which have been manufactured or developed by a third party and/or Services (as defined in Section 1.2 (Services) below) that are set forth in any purchase order or any other AdvancedTek-approved written purchase agreement tendered to AdvancedTek (each a “Purchase Order”), any and all of which shall be governed by these Terms, notwithstanding any conflicting or additional provisions in any such Purchase Order or other Customer communication. If a Product includes the licensure of any software, which term shall include program code together with applicable technical documentation, containing specifications, instructions and/or other information accompanying such software or made available by such third party provider from time to time (collectively “Software”), Customer shall be granted a non-exclusive, nontransferable, revocable, and limited license to use the Software subject to the third party provider’s terms and conditions. No purported waiver or other modification of these Terms will be effective unless, and only to the extent, specified by an express waiver or modification signed by an executive officer of AdvancedTek. All other proposed modifications or waivers (whether whole or partial) of these Terms are hereby objected to and rejected in all respects.
1.2. Services. From time to time, AdvancedTek agrees to offer and provide services related to the Products (“Services”) that are identified in a Purchase Order, and Customer agrees that such services are offered and provided at all times subject to, and in accordance with, these Terms. Notwithstanding the foregoing, certain Services, including support and maintenance services, may be offered under, and made subject to, additional terms or conditions in a separate agreement (the “Services Agreement”), which, on full execution, shall control and govern to the extent necessary to resolve any conflict with these Terms.
1.3. Terms and Conditions. Customer agrees to be bound by Terms and Conditions of Sale, if any, and as may be amended from time to time, of any third party provider of Software or Products.
2. PAYMENT AND TAXES.
2.1. Cancellation Rights and Procedures. Customer may cancel or modify a pending Purchase Order only by giving written notice thereof to AdvancedTek before shipping or within three (3) business days after submission of the Purchase Order to AdvancedTek, whichever occurs earlier. Thereafter, Customer may not cancel or change any Purchase Order without AdvancedTek’s prior written consent.
2.2. Payments and Credit. Customer shall pay for the Products, Software and/or Services as and within the time frames or on or before the date(s) specified in the Purchase Order, and is not entitled to and shall not suspend payments, set off or otherwise deduct from any amounts invoiced by AdvancedTek. No rights to purchase Products on credit are conferred herein, and any extension, modification or withdrawal of credit and credit terms are reserved solely to AdvancedTek in its discretion. Except as otherwise agreed in the Purchase Order, all payments are due in U.S. dollars. Credit card payments are subject to a surcharge from the processing company.
2.3. Remedies. In the event Customer is in default in the payment of any sum invoiced by AdvancedTek, then, without prejudice to AdvancedTek’ s other rights and remedies: (a) all outstanding sums shall immediately become due and payable to AdvancedTek, notwithstanding any credit terms previously granted by AdvancedTek to the Customer; (b) AdvancedTek may delay or suspend delivery of Products, Software and/or Services hereunder, or cancel any existing, pending or new orders and/or agreements with the Customer; (c) AdvancedTek may retain any amount already paid to it by Customer; and (d) AdvancedTek may recover its reasonable attorney’s fees and other expenses incurred in enforcing its rights and remedies hereunder. Any amounts not paid by Customer when due shall bear interest at the rate of one and one-half percent (1.5%) per month or the highest legal rate of interest (whichever is lower).
2.4. Taxes. All prices are exclusive of, and Customer shall pay, all applicable sales, use and other taxes or duties imposed, or otherwise due, on the sale, purchase or license of the Products, Software and/or Services, except for those taxes imposed upon AdvancedTek’s net income.
3. TITLE, DELIVERY AND RISK OF LOSS.
3.1. Transfer Terms. All deliveries of Products shall be FOB Origin, with respect to shipping costs, risk of loss and title transfer, except that no title transfer shall ever occur for any licensed Software associated with any Product sale. Notwithstanding delivery and the passage of risk and whether or not credit is extended for any Product purchase, the following shall apply:
3.1.1. If the applicable law (as determined according to Section 10 (Jurisdiction) below) so permits, property in and title to Products shall remain with AdvancedTek, and shall not pass to Customer, until AdvancedTek has received payment of the full price and license fees (if applicable) for (a) all Products, Software and/or Services that are the subject of these Terms, and (b) all other goods and/or services supplied by AdvancedTek to Customer under any contract whatsoever. Payment of the full price and license fees shall include without limitation, the amount of any interest or other sum payable under the terms of this and all other contracts between AdvancedTek and Customer. Moreover, Customer shall keep the Products identified as retained until such retention lapses.
3.1.2. If the applicable law does not permit the arrangement described in Section 3.1.1 above, AdvancedTek hereby reserves in the Products (as well as all proceeds resulting from any sale thereof), and Customer grants and agrees that the Products shall remain fully subject to, a first priority purchase money security interest, until AdvancedTek has received payment of the full price and license fees (if applicable) for all the items listed in paragraphs (a) and (b) of Section 3.1.1. Payment of the full price and license fees shall include without limitation, the amount of any interest or other sum payable under the terms of this and all other contracts between AdvancedTek and Customer. Moreover, Customer hereby covenants that (i) no hindrance to its granting of the above security interest exists in any of its third party contracts; or (ii) in the event such a hindrance does exist, Customer shall assist AdvancedTek in exercising, and shall take all actions necessary to protect and maintain, such security interest.
3.2. Delivery. AdvancedTek will attempt to cooperate with Customer’s requested delivery dates or other related delivery requests, but cannot and does not warrant quoted shipment or delivery dates or time frames, and may fulfill ordered items by partial and incremental shipments, in its sole discretion. Customer acknowledges and agrees that all costs and obligations associated with shipment and delivery of Products shall be borne solely by Customer; that any insurance desired therefor shall be Customer’s sole obligation and expense; and that in no event shall AdvancedTek be liable for any direct or indirect damage or loss that the Customer may incur resulting from any delivery failure or delay. Customer will notify AdvancedTek in writing within ten (10) calendar days following the date of delivery of any alleged Product defect or other Purchase Order discrepancies, and the Products and licensed Software shall be deemed to be accepted in the quantity specified on the bill of lading or commercial invoice and in good condition, and such acceptance will operate as a bar to claims against AdvancedTek, if no such notice is received.
Products that do not require installation by AdvancedTek may be installed by Customer and used at any time following delivery. AdvancedTek or third party providers (or their authorized technical representative) will install those Products (including Software) or Parts designated as requiring installation by AdvancedTek or such third party provider or their authorized technical representative (such Products or Parts, “AdvancedTek Installed Products/Parts”), at Customer’s designated facility following receipt of all applicable payments related thereto. Prior to such installation, Customer, at its expense, shall complete all applicable Product site preparations for installation, as specified by applicable Product documentation and as required by applicable law, including, without limitation, all health and safety laws, and shall provide the applicable handling of Products/Parts as directed in writing by AdvancedTek and shall thereafter provide such other assistance, services and facilities as may be requested by AdvancedTek or third party provider (or their authorized technical representative) to complete such installation. Except as directed by AdvancedTek in writing, installed Products/Parts shall not be handled, operated, opened, dismantled or used at any time prior to completion of required installation thereof, and then, initially in the presence and under the supervision of authorized AdvancedTek or such third party provider’s technical personnel. Where applicable and required by AdvancedTek or third party provider, AdvancedTek or third party provider (or their authorized technical representative) will perform a standard test of the Products and present a certificate of installation (“COI”) upon completion of the required installation.
During any Product installation required to be performed by AdvancedTek or third party provider (or their authorized technical representative), and in consideration for Customer’s payment of charges due (unless otherwise specified in the Purchase Order acceptance), AdvancedTek or third party provider shall make available to qualified personnel of Customer basic training in the use and operation of the Products according to the applicable Product documentation. Subsequent to any such required Product installation, AdvancedTek or third party provider may offer and provide such training services from time to time, in their sole discretion.
6. PRODUCT WARRANTY.
6.1. Customer understands that AdvancedTek is not the manufacturer of the Products/Parts and the only warranties provided are by and through the manufacturer. In purchasing the Products/Parts, Customer is relying on the manufacturer’s specifications only and is not relying on any statements, specifications, photographs or other illustrations representing the Products/Parts that may be provided by AdvancedTek.
6.2. WARRANTY DISCLAIMER. THE WARRANTIES SET FORTH IN THIS SECTION 6 (PRODUCT/PARTS WARRANTY) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY (INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT). ADVANCEDTEK DISCLAIMS THAT THE OPERATION OF SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE FUNCTIONS THEREIN WILL MEET OR SATISFY THE CUSTOMER (OR USER’S) REQUIREMENTS OR INTENDED USE.
7. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW:
7.1. LIMITATION OF DIRECT DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL ADVANCEDTEK, OR ITS AFFILIATES, MANUFACTURERS, SUPPLIERS OR LICENSORS (AS THIRD PARTY BENEFICIARIES) BE LIABLE FOR DIRECT DAMAGES OR OTHER LOSSES OR LIABILITIES DIRECTLY RELATING TO THE PRODUCTS, SOFTWARE OR SERVICES OR OTHERWISE ARISING OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH THE SAME INSTALLATION OR OTHER USE OF PRODUCTS OR THE PROVISION OF SERVICES, IF AND TO THE EXTENT SUCH DIRECT DAMAGES OR LOSSES EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER FOR THE SPECIFIC PRODUCT(S) OR RELATED SERVICES THAT DIRECTLY GAVE RISE TO THE DAMAGES OR OTHER LOSSES OR LIABILITIES CLAIMED (PROVIDED THAT FOR ANY SERVICES, THE AMOUNT SHALL BE LIMITED TO THE AMOUNT PAID FOR SAID SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO BRINGING THE CLAIM), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, EXPRESS OR IMPLIED WARRANTY, TORT, PRODUCT OR OTHER STRICT LIABILITY, TRADE PRACTICES, OR OTHERWISE, AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
7.2. EXCLUSION OF CERTAIN DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL ADVANCEDTEK OR ITS AFFILIATES, MANUFACTURERS, SUPPLIERS OR LICENSORS (AS THIRD PARTY BENEFICIARIES) BE LIABLE FOR ANY LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF CONTRACTS, LOSS OF THE USE OF MONEY, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, LOSS OF GOOD WILL, LOSS OF REPUTATION, LOSS OF, DAMAGE TO OR CORRUPTION OF DATA; OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, RELIANCE, EXEMPLARY, PUNITIVE, OR OTHER SIMILAR DAMAGES OF ANY KIND, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF IT IS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER BASED IN CONTRACT, EXPRESS OR IMPLIED WARRANTY, TORT, PRODUCT OR OTHER STRICT LIABILITY, TRADE PRACTICES, OR OTHERWISE, AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
7.3. Limitation of Actions. Any action against AdvancedTek relating to any alleged breach of contract or any other alleged Product failure, must be brought within twelve (12) months after the cause(s) of action accrue(s) otherwise such breach of warranty or alleged Product failure shall be deemed to be waived.
Upon AdvancedTek’s written request, Customer will obtain and maintain adequate liability insurance on the Products against loss or damage from any external causes, with AdvancedTek named as an additional insured under all such policies.
All notices and communications between the parties shall be in writing and addressed and sent by: (i) email where delivery is verifiable by automated receipt; (ii) facsimile, where delivery is verifiable by automated delivery receipt; or (c) by national or international overnight courier service where delivery receipt is provided to the addresses set forth in the Purchase Order, or to such other replacement addresses as may be provided from time to time by each party by written notice given in accordance with this Section 9. Any notice to AdvancedTek shall be to the attention of CEO or other authorized contact identified in the applicable Purchase Order acknowledgment. Notice shall be deemed to have been duly received by a party as of the date such notice was delivered in accordance with any of the methods prescribed herein.
These Terms shall be governed by and construed under the internal laws of the State of Minnesota, USA, without reference to its choice of law rules and Customer irrevocably consents to the exclusive jurisdiction and venue of the applicable federal or state courts located in Ramsey County, Minnesota, and agrees to file any action brought by it hereunder only in the competent federal and/or state courts located in such county.
The parties hereto are independent contractors and nothing herein shall be construed as creating a partnership or granting the right to bind the other. Customer may not assign or transfer these Terms or the rights granted hereunder, except with AdvancedTek’s prior written consent. Subject to the foregoing, Customer’s rights or obligations under these Terms shall be binding upon and inure to the benefit of each party’s respective permitted successors and assigns. Designated third-party beneficiaries may also enforce the Terms relating to their rights. AdvancedTek reserves the rights to terminate and revoke these Terms and terminate its relationship with Customer at any time following Customer’s breach of any of these Terms, and such termination shall be effective immediately upon written notice thereof to Customer. Upon termination for any reason, Customer shall immediately cease use of any Software not embedded within the Systems, delete or destroy all copies in its possession, including that which may have been provided to contractors or consultants, and execute and deliver to AdvancedTek a certification evidencing same. The unenforceability of any provision of these Terms adjudged by any court of competent jurisdiction shall in no way affect the enforceability of any other provision hereof, which shall remain in full force and effect. Any failure by either party to exercise any right or remedy under the Terms does not constitute a waiver, or signify acceptance, of the event giving rise to such right or remedy. Any waiver or other alleged modification or amendment by AdvancedTek of any provision of these Terms must be in writing and signed by an authorized officer of AdvancedTek to be valid. Provisions which by their nature should survive termination of the parties’ business relationship and any agreements between or among them shall so survive indefinitely. To the extent that these Terms are accepted electronically, Customer hereby waives any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law.
If you have any questions regarding our terms and conditions of sale, please contact us at:
255 East Roselawn Ave, Suite 45
St. Paul MN 55117