Acoustic Research Systems, Inc. Neutron System Sales Terms And Conditions

These Terms and Conditions (“Terms and Conditions”), the accepted Request for Proposal (“RFP”) and any Purchase Order by and between Acoustic Research Systems, Inc., located at 113 E. German Street, Shepherdstown, WV 25443 and its affiliates (“ARS”), and the purchaser of any goods and services pursuant to an executed Purchase Order and its affiliates (“Purchaser”) (ARS and Purchaser, collectively, the “Parties,” each a “Party”), constitute the entire agreement between ARS and Purchaser relating to the purchase of goods and services and supersede and replace any and all prior discussions and agreements between the Parties (the “Agreement”). This Agreement is binding on the date of the issuance of a Purchase Order (the “Effective Date”). If any discrepancy, difference or conflict exists between the various provisions of the Purchase Order and these Terms and Conditions, these Terms and Conditions shall govern.

1. Offer and Contract.

These Terms and Conditions will be deemed to have been accepted upon the execution of the Purchase Order by both Parties.

2. Changes.

Neither Party can change, alter, or modify this Agreement (including any Purchase Order) in whole or in part, without the other Party’s prior written consent.

3. Term and Termination.

Either Party may terminate this Agreement immediately upon written notice to the other Party, if the other Party is in material breach of the Agreement and such breach remains uncured after thirty (30) days following such Party’s receipt of a reasonably-detailed written notice thereof. Upon termination by Purchaser in accordance with this Section 3, if Purchaser has satisfied all of its purchase obligations under Section 5 herein, then Purchaser shall be entitled to retain the NEUTRON System (“NEUTRON”), but ARS shall not be obligated to provide any further services under this Agreement, including but not limited to any Support Services described in Section 11 or Exhibit C.

4. Time of Delivery.

Unless otherwise agreed to by the Parties, ARS shall deliver NEUTRON to Purchaser at the time as set forth in the Purchase Order.

5. Pricing; Invoicing Method; Taxes.

Purchaser shall pay ARS such purchase price and fees for goods and services provided by ARS as set forth in the Purchase Order (the “Purchase Price”). Unless otherwise specified in a Purchase Order, Purchaser shall pay ARS the Purchase Price in two (2) installments. The first installment, the amount of which shall be equal to fifty (50%) of the Purchase Price, shall be paid to ARS no more than thirty (30) days after the Effective Date. The second installment, the amount of which shall be equal to the remainder of the Purchase Price, shall be paid to ARS no more than thirty (30) days after the date of Acceptance (defined in Section 7 herein). Purchaser shall not withhold payment for any reason. All orders may be subject to a credit review and acceptance, such acceptance to be made by ARS in its sole and absolute discretion. No order shall be processed until a formal copy of Purchase Order is received by ARS at the address specified in the Purchase Order. Purchaser shall pay all amounts due in U.S. dollars, via wire transfer to an account designated by ARS to Purchaser from time to time, or at ARS’s election, through automated clearing house (“ACH”) transfers from Purchaser directly to ARS, or as otherwise mutually agreed upon by the parties. ARS shall comply with the invoice instructions set forth on the Purchase Order, provided that such instructions are reasonable and do not require ARS to pay for any third-party invoice processing services. The Purchase Price is exclusive of all sales, use, export, value added, or similar taxes, which Purchaser shall pay. If Purchaser has tax exempt status, Purchaser shall provide a certificate of tax exemption or other written evidence of such status satisfactory to ARS prior to the receipt of ARS’s invoice.

6. Shipment Method.

The Purchase Price is exclusive of all shipping costs and expenses, which Purchaser shall pay. ARS shall ship NEUTRON FOB Origin to the address specified in the Purchase Order (“Delivery Address”) and Purchaser shall ensure that the Delivery Address has sufficient capacity (e.g., freight bays, elevators) to receive delivery.

7. Inspection and Acceptance.

a. Acceptance. Purchaser shall ensure that all equipment, power and personnel to be provided by Purchaser as described in the RFP are available upon delivery of NEUTRON. Upon delivery, Purchaser shall coordinate with ARS personnel to assist ARS personnel with the on-site commissioning and setup of NEUTRON by ARS personnel. Following completion of the NEUTRON setup, ARS personnel shall provide training to Purchaser personnel on initial startup and operation of NEUTRON. Following completion of the training, ARS personnel shall observe a visual startup of NEUTRON performed by Purchaser personnel that demonstrates NEUTRON performs in material conformance with ARS’s written specifications in the NEUTRON Acceptance Checklist, attached hereto as Exhibit A. Purchaser may solely reject NEUTRON if Purchaser reasonably and in good faith determines that NEUTRON materially fails to perform at the conclusion of the startup in accordance with ARS’s written specifications in Exhibit A and rejects NEUTRON in writing through a notice to ARS at the conclusion of the training/startup demonstration. NEUTRONwill be deemed to be finally accepted by Purchaser if, at the conclusion of the setup, startup and training described above, Purchaser (i) completes and executes the NEUTRON Acceptance Checklist, or (ii) fails to reject NEUTRON in writing for NEUTRON’s nonconformance as described above (“Acceptance”).

b. Purchaser’s right to reject any goods and/or services is strictly limited to the rights set forth in this Section 7, and Purchaser’s right to cancel this Agreement is strictly limited to the rights set forth in Section 3 of these Terms and Conditions.

c. All costs associated with the Acceptance process (including any installation and training costs) described in Sections 7 (a) and (b) are set forth in the ARS RFP, which is hereby incorporated by reference and made part of these Terms and Conditions.

d. Manufacturer Warranties. ARS shall pass through any manufacturer warranties on component-level equipment to Purchaser.

8. Authorized Use Policy.

Purchaser shall not allow any individual to access, use or operate NEUTRON unless such individual is an Authorized User. An “Authorized User” is any Purchaser personnel who has completed the Authorized Use Training provided by ARS and executed an Acknowledgment of Training Completion, attached hereto as Exhibit B. Purchaser shall ensure that all of its Authorized Users shall comply with the safety policies, procedures and protocols provided by ARS, including those contained in the Authorized Use Training, the NEUTRON User Manual and any other policies and safe operating instructions provided by ARS to Purchaser (collectively, the “ARS Safety and Authorized Use Policies”), as well as take all other actions necessary to safely operate NEUTRON. Purchaser is responsible for the acts and omissions of its Authorized Users relating to the Agreement, including compliance with these Terms and Conditions, and the ARS Safety and Authorized Use Policies as though they were those of Purchaser. ARS shall not be responsible for any health and safety issues related to access to and use and operation of NEUTRON by Purchaser and any of its employees and personnel, including its Authorized Users.

9. Warranties.

NEUTRON IS PROVIDED “AS-IS”, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, ARS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ADHERENCE TO SPECIFICATIONS, NON-INFRINGEMENT, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, AND ERROR-FREE OR UNINTERRUPTED OPERATION. Acceptance terminates all warranties with respect to NEUTRON; however, ARS shall continue to provide the Support Services for NEUTRON as set forth in Section 11 below. Purchaser acknowledges and agrees that ARS has provided a NEUTRON User Manual and the ARS Safety and Authorized Use Policies, that present NEUTRON’s safe operating procedures, and Purchaser shall comply with those procedures as well as take all other actions necessary to safely operate NEUTRON.

10. Intellectual Property, Copyrights, Trademarks and Patents.

a. Ownership; Limited License. ARS retains ownership of all right, title, and interest in and to any and all intellectual property rights contained within or embodied by NEUTRON, and all improvements or enhancements thereto made by ARS (collectively “NEUTRON IP”). ARS hereby grants to Purchaser a non-exclusive, non-transferable, royalty-free, perpetual right and license to practice and use NEUTRON IP in its use and operation of NEUTRON. For the avoidance of any doubt, the NEUTRON IP is not a “work made for hire” and no NEUTRON IP is assigned to, or owned by, Purchaser under this Agreement.

b. Trademark License; Attribution. ARS is the owner of the “NEUTRON” and “ARS” trademarks (“Trademarks”) and warrants that it has the right to grant the licenses granted hereunder. ARS hereby grants to Purchaser a nonexclusive, nontransferable (without any right to sublicense) license to use the Trademarks in connection with the use of NEUTRON. Purchaser shall properly attribute NEUTRON as an ARS product and prominently display the ^TMsymbol in conjunction with any Trademark being used. Any public display or use of NEUTRON shall require that proper attribution is given to ARS and that the Trademarks are prominently displayed and unaltered or removed. Purchaser shall not destroy, remove, display, copy, modify, transmit or otherwise use the Trademarks except as described in this Agreement, or otherwise agreed in writing by ARS. Purchaser may not use the Trademarks to show NEUTRON or ARS services in any disparaging or derogatory light, or in any way that may be damaging to ARS’s brand or interests in the Trademarks. In addition to any other right that ARS may have to enforce the terms of this Agreement, Purchaser must promptly comply with any request that ARS makes for Purchaser to cease (i) use of the Trademarks, or (ii) failure to properly attribute to ARS ownership of the Trademarks in a way that is non-compliant with this subsection.

c. Modifications. Purchaser shall not modify or reverse engineer any NEUTRON IP.

d. Feedback. To the extent Purchaser provides ARS with any feedback, suggestions, enhancements, improvements, or similar information regarding NEUTRON or the NEUTRON IP (collectively, the “Feedback”), ARS shall have the right to use such information for any purpose whatsoever, including optimization, enhancement or modification of NEUTRON, NEUTRON IP and related services. All rights, title and interest of Purchaser in the Feedback and any intellectual property generated therefrom shall be automatically and irrevocably assigned to ARS without consideration to Purchaser (including any rights to royalties or other payments). ARS has no obligation to furnish Purchaser with inventions or discoveries made or conceived by ARS in the course of or in connection with this Agreement, including any intellectual property rights therein or integrating any Feedback into NEUTRON or NEUTRON IP.

e. Purchaser Data. To the extent any services or Feedback include the disclosure of confidential data of Purchaser (“Purchaser Data”), such Purchaser Data remains the property of Purchaser, and ARS is granted a nonexclusive, nontransferable license during the term of this Agreement to use such Purchaser Data as necessary for ARS to provide services under this Agreement and for ARS’s internal purposes, and such Purchaser Data will be treated as Confidential Information. Notwithstanding anything to the contrary set forth herein, ARS may use, reproduce, sell, publicize or otherwise exploit De-Identified Data in any way, in its sole discretion (“De-Identified Data” refers to Purchaser Data which has been aggregated, de-identified or anonymized, and statistical data, insights, or other predictive data that sufficiently different from the Purchaser Data such that it cannot be reverse engineered or otherwise identified from analysis or processing of the derived information).

11. Support.

ARS will provide on-site commissioning and setup of NEUTRON as set forth in Section 7(a) and support services (“Support Services”) for NEUTRON subject to the terms and conditions in this Section 11.

a. Support Services. For a period of one (1) year from Acceptance (the “Support Services Term”), ARS will, in its sole discretion, pay the repair and shipping costs for parts that fail due to manufacturing defect or will, at its own expense, travel to Purchaser’s location to repair or replace the part.

b. Limitations. ARS shall not be responsible for any issues related to or caused by: (i) expendable parts and/or Purchaser’s installation thereof; (ii) cosmetic damage or ordinary wear-and-tear to NEUTRON; (iii) Purchaser’s or any of its Authorized User’s failure to follow operating instructions provided by ARS, including any portion of the ARS Safety and Authorized Use Policies; (iv) Purchaser’s or any of its Authorized User’s use of NEUTRON outside of the operating parameters described in the documentation provided by ARS, including any portion of the ARS Safety and Authorized Use Policies; (v) Purchaser’s use or combination of parts with NEUTRON that were not provided by ARS; (vi) use of NEUTRON by anyone other than Purchaser’s Authorized Users; and (vii) modifications to NEUTRON made by anyone other than ARS or its authorized personnel.

c. Additional Support Services or Extension. In the event Purchaser desires to receive additional Support Services from ARS or receive Support Services from ARS beyond the Support Services Term, Purchaser and ARS shall execute a separate written agreement governing such additional services, as set forth on Exhibit C.

d. Remedies. This Section 11 sets forth ARS’s sole liability, and Purchaser’s sole and exclusive remedy, for any performance issues relating to NEUTRON.

12. Prohibited Uses.

Purchaser may not use, or encourage, promote, facilitate, or instruct others to use NEUTRON for any illegal, harmful or offensive use. Prohibited uses include:

a. Use of NEUTRON in a way that violates, or threatens to violate a person’s privacy; or
b. Intentional damage to or abuse of NEUTRON or operation of NEUTRON outside of specifications set forth in the NEUTRON User Manual;
c. Use of NEUTRON that is otherwise illegal or solicits or promotes conduct that is illegal under applicable law.

ARS reserves the right, but does not assume the obligation, to investigate any violation of this Section or misuse of NEUTRON or any ARS system in contravention of this Agreement.

ARS reserves the right to terminate or suspend any provisions of Support Services upon learning that Purchaser has engaged in any of the above-described prohibited uses and pursue any other remedies available to it by law. ARS shall have no liability to Purchaser arising from or related to Purchaser or any Purchaser employee, personnel, or Authorized User’s failure to comply with or violation of the ARS Authorized Use and Safety Policies or this Section 12.

13. Premises Where Services Are Provided.

ARS makes no certifications that NEUTRON or the Support Services comply with any environmental protection, health, safety, and fire protection regulations and requirements, and ARS shall have no liability to Purchaser relating to any of the foregoing. Purchaser acknowledges that Purchaser is solely responsible for the provision of all equipment and for adherence to all power requirements described in the RFP, and ARS shall have no liability with respect to any failure by Purchaser to maintain such equipment or power requirements.

14. Export Control.

Purchaser shall not export, directly or indirectly, any technical data acquired from ARS, or any products utilizing such data, to any country in violation of any applicable export control laws or regulations. Purchaser agrees that it will not export, re-export or transfer any such data or products in violation of any applicable laws, regulations or sanctions of the United States or the United Nations. ARS shall also comply with all applicable export control laws and regulations.

15. Limitation of Liability.

EXCLUDING CLAIMS FOR BREACH OF A PARTY’S CONFIDENTIALITY AND NONDISCLOSURE OBLIGATIONS IN THIS AGREEMENT OR ONE PARTY’S VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF THE OTHER PARTY, EACH PARTY’S ENTIRE LIABILITY, AND THE OTHER PARTY’S SOLE AND EXCLUSIVE REMEDY, FOR ANY CLAIM OR ACTION (OR SERIES OR CLAIMS OR ACTIONS) ARISING FROM OR RELATED TO THIS AGREEMENT (WHETHER IN NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER CAUSE OF ACTION) ARE DIRECT DAMAGES NOT TO EXCEED, IN THE AGGREGATE, THE PURCHASE PRICE.

16. Purchaser Indemnification.

Purchaser shall defend, indemnify and hold harmless ARS, its subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers arising out of or occurring in connection with (i) use of NEUTRON by anyone other than Purchaser’s Authorized Users and (ii) Purchaser or any of its Authorized User’s failure to comply with or violations of the ARS Safety and Authorized Use Policies.

17. Insurance.

Upon request by Purchaser, ARS shall provide Purchaser with a copy of ARS’s insurance as of the Effective Date.

18. Title.

Title to NEUTRON shall pass to Purchaser upon Acceptance.

19. Changes.

Neither Party can change, alter, or modify this Agreement (including any drawings, designs, or specifications, method of shipment, or the Delivery Address) in whole or in part, without the other Party’s prior written consent.

20. Confidential Information.

In connection with this Agreement, each Party (the “disclosing party”) may provide the other Party (the “receiving party”) with access to information belonging to the disclosing party or third parties that is of a confidential and proprietary nature, that: (a) is in tangible form marked as “confidential” or “proprietary” or with a similar legend; (b) is in intangible form that is designated by the disclosing party as confidential at the time of disclosure; or (c) based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential (collectively, the “Confidential Information”). Neither Party shall disclose the other Party’s Confidential Information, in whole or in part, in its original form or in any other form, except to its legal and financial advisors, or its employees or independent contractors who have a “need to know” in connection with this Agreement and are subject to written confidentiality restrictions consistent with those herein. Nor shall either Party use the other Party’s Confidential Information except in connection with fulfilling its obligations or exercising its rights under this Agreement. Upon any termination of this Agreement, or earlier upon the disclosing party’s request, the receiving party shall return or, at its option, destroy, all Confidential Information of the disclosing party then in its possession. Notwithstanding any of the foregoing, “Confidential Information” excludes information that: (w) is now or subsequently becomes generally available to the public through no fault or breach on the part of the receiving party; (x) was rightfully in the receiving party’s possession prior to disclosure by the disclosing party; (y) is independently developed by the receiving party without the use of any of the disclosing party’s Confidential Information; or (z) the receiving party rightfully obtains from a third party who has the right to transfer or disclose it. The receiving party may also disclose the other party’s Confidential Information as necessary to comply with applicable law or judicial or administrative process, provided that the receiving party notifies the disclosing party of such required disclosure promptly (if permitted by law) and cooperates with the disclosing party, at the disclosing party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The terms and conditions of the Agreement are each Party’s Confidential Information.

21. Publicity.

Purchaser shall not issue or cause the publication of any press release or other public announcement, or otherwise make any public statement concerning the transactions contemplated by this Agreement without ARS’s prior written consent (which consent shall not be unreasonably withheld or denied).

22. Assignment and Subcontracting.

ARS may assign this Agreement without Purchaser’s consent in connection with a merger, sale or other disposition of substantially all the assets of ARS’s business. ARS may delegate any part of its duties required of ARS by the Agreement, provided that ARS shall remain primarily responsible for compliance with its obligations under this Agreement.

23. Governing Law.

The Parties agree that this Agreement and all disputes arising hereunder shall be governed by the laws of the State of West Virginia, excluding its conflicts of laws provisions. The venue for any dispute arising out of this Agreement shall be any of the courts located in Jefferson County, West Virginia. Notwithstanding the preceding sentence, nothing in this Agreement shall restrict or limit either Party seeking injunctive or similar relief in any jurisdiction to protect its Confidential Information.

24. Entire Agreement.

This Agreement contains the entire agreement between the Parties regarding its subject matter and will supersede and merge any prior agreements, statements or communications between the Parties with respect to such subject matter.

25. ARS Terms.

In the event of any conflict or inconsistency between the subject matter of the Terms and Conditions and any Purchase Order, the conflict or inconsistency shall be resolved in the following order of precedence: (1) these Terms and Conditions, and (2) the Purchase Order.

26. Survival Clause.

The provisions of the Agreement which by their explicit terms or their manifest intent are intended to survive, including without limitation those which relate to intellectual property, Confidential Information, and governing law and venue, shall survive termination of this Agreement.

The Parties hereto, by their duly authorized representatives, have executed this Agreement as of the Effective Date.

ARS Neutron System Sales Terms & Conditions