TERMS OF SALE

Last Updated: January 16, 2018

The Terms of Sale below (the “Terms”) together with the Terms of Service and Warranty and Refund Policy govern the sale of products and services provided by ProcessEye LLC (“we”, “us”, or “our”).

1. DEFINITIONS

“Buyer” means the person, firm or company which places an order for purchase of Products and/or Services as identified in any such order or Proposal.
“Contract” means the agreement between the Supplier and the Buyer arising as a result of the Buyer’s submission of an order for the Supplier’s Products and Supplier’s written acceptance and/or, in the case of Services, an agreement between such parties for the provision of Services by Supplier, as constituted by a Proposal. Such Contract shall be deemed to incorporate and be governed by
these Terms.
“Products” means goods supplied as agreed to be supplied by the Supplier to the Buyer under any Contract including, where applicable, any Software or Subscriptions.
“Proposal” means a proposal or quotation document signed by the Supplier describing Products and/or Services to be provided to or for the Buyer or Products and/or Services described in Supplier’s eCommerce website that subject to these Terms.
“Services” means any services which the Supplier has agreed to provide to or for the Buyer under any Contract, as more fully described in the relevant Proposal.
“Site” means any “Software” and/or a ProcessEye^TM website either hosted locally by a RemoteLobe^TM and/or in a remote server.
“Software” means any software provided whether downloaded, viewed or embedded.
“Subscriptions” means any access to enhanced features or data granularity for ProcessEye^TM website(s) and local websites hosted by RemoteLobes^TM.
“Supplier” means ProcessEye LLC or any of its affiliates as named in any Proposal.

2. BASIS OF SALE

THESE TERMS SHALL TAKE PRECEDENCE OVER ANY TERMS AND CONDITIONS WHICH APPEAR IN THE BUYER’S ORDER OR IN ANY DOCUMENTS INCORPORATED BY REFERENCE IN THE BUYER’S ORDER. No term or condition of the Buyer’s order additional to or different from these Terms shall become part of any Contract unless explicitly agreed to in writing by the Supplier. Retention by the Buyer of any Products delivered by the Supplier, receipt by the Buyer of any Services performed by the Supplier or payment by the Buyer of any invoice rendered hereunder, shall be conclusively deemed acceptance of these Terms. The Supplier’s failure to object to any provision contained in any communication from the Buyer shall not be construed as a waiver of these Terms nor as an acceptance of any such provision.

3. PROPOSALS

Prices, specifications and delivery date referenced in the Supplier’s proposals are for information only and shall not be binding on the Supplier until all technical requirements have been agreed and the Supplier has accepted the Buyer’s order. Proposals terminate if the Buyer does not place an order with the Supplier within 30 days.

4. ORDERS

By submitting an order to the Supplier, the Buyer agrees to be subject to these Terms in their entirety. All orders must be bona fide commitments showing definite prices and quantities and mutually agreed shipping dates. No order, whether or not submitted in response to a Proposal by the Supplier, shall be binding upon the Supplier until accepted in writing by the Supplier.

5. PRICES AND TAXES

The prices for Products shall be the price quoted by the Supplier to the Buyer or the prices outlined in Supplier’s eCommerce website, and the fee for Services shall be the fee agreed in the Proposal or, in either case, as otherwise agreed between the parties in writing.
Prices and fees do not include taxes, transport charges, insurance and export and/or import charges or duties including without limitation sales, value added tax, use or excise taxes, applicable to the Products sold and/or Services supplied under any Contract, which taxes and other charges may, in the Supplier’s discretion, be added by the Supplier to the sale price and/or fees or billed separately and which taxes and other charges shall be paid by the Buyer unless the Buyer provides the Supplier with any necessary tax exemption certificate.
Supplier is located in the State of Minnesota and is obligated to charge sales tax respectively for delivery within Minnesota and customer pick-up orders. Sales tax rate varies by county. Minnesota tax-exempt customers must submit their tax exemption certificate to avoid tax. We do not add or collect sales tax for states other than Minnesota. It is the customer’s responsibility to pay appropriate
tax to your state when necessary.

6. SHIPMENT AND DELIVERY

Unless otherwise agreed in writing, the Buyer shall be liable to pay the Supplier’s charges for transport, packaging, insurance and export and/or import clearance.
The Supplier shall deliver or arrange for delivery of Products Free Carrier (FCA Incoterms 2010), delivered to the carrier of Buyer’s choice or other as agreed between the parties. Any dates quoted by the Supplier for delivery of Products are approximate only and the Supplier shall not be liable for any delay in delivery of Products howsoever caused and time for delivery is not of the essence.
The Supplier reserves the right to make delivery of Products by installments and to tender a separate invoice in respect of each installment. When delivery is to be by installments or the Supplier exercises its right to deliver by installments or if there is delay in the delivery of any one or more installments for whatever reason the Buyer shall not be entitled to treat the Contract as a whole as repudiated.

7. RISK AND PASSING OF TITLE

Subject to Section 8, title to, and risk of loss and damage to, the Products shall pass to the Buyer on delivery in accordance with Section 6. Any claims for loss, damage or misdelivery shall be filed with the carrier and notified to Supplier within 5 days of the date of delivery. Products shall be deemed finally inspected and accepted within ten days after delivery unless notice of rejection is given to the Supplier within such period. Acceptance shall constitute acknowledgement of full performance by the Supplier of all obligations under the Contract except as stated in Section 12.

8. SECURITY INTEREST

Buyer hereby grants to Supplier a security interest in all Products and Services sold to Buyer as security for the due and punctual performance by Buyer of its payment obligations hereunder. Buyer authorizes Supplier to take any and all action necessary to evidence and perfect said security interest including, without limitation, the filing of any financing statements, and Buyer agrees to provide Supplier with all information required to make any such filing.

9. SERVICES

The Supplier shall provide Services in accordance with these Terms and the terms of the relevant Proposal.
The Buyer shall, upon the Supplier’s reasonable request and otherwise as required, provide the Supplier with all necessary information and materials to enable the Supplier to provide Services in accordance with the terms of any relevant contract. The Buyer will be responsible for the completeness and accuracy of all such information and materials provided, and will ensure that it is and
remains entitled to provide the same to the Supplier for use in connection with provision of the Services.

10. TERMS OF PAYMENT

Each shipment of Products (excluding Subscriptions) shall be a separate transaction and the Buyer will be invoiced on delivery. The Supplier shall be entitled to invoice the Buyer, in respect of Services, monthly in advance. Terms of payment shall be net fifteen (15) days from date of invoice.
The Supplier shall be entitled to invoice the Buyer, in respect of Subscriptions, annual in advance. Terms of payment shall be net fifteen (15) days from date of invoice.
All amounts due under a Contract shall be paid in full by the Buyer without deduction, withholding, set-off or counterclaim for any reason whatsoever, whether arising in contract, tort (including negligence), breach of statutory duty or otherwise, save as may be required by law.
The Supplier may, in its sole discretion, determine at any time that the Buyer’s financial condition requires full or partial payment in advance or the provision of security for payment by the Buyer in a form satisfactory to the Supplier.
If the Buyer fails to make any payment when due then, without prejudice to any other rights and remedies available to the Supplier, the Supplier shall (at its option) be entitled: (i) to treat the Contract as repudiated by the Buyer, to suspend or cancel further delivery of Products and/or the provision of Services or any part thereof under that Contract or any other Contract between them and claim damages and/or receive reasonable cancellation fees; (ii) to affirm the Contract and claim damages from the Buyer; and (iii) to recover, in addition to the payment, interest on the unpaid amount (both before and after judgement) at the rate of 5% per annum above the “prime rate” as set forth from time to time in the Wall Street Journal (East Coast Edition), until payment in full is made. Such interest shall be calculated daily.

11. PRODUCTS

The Supplier may modify specifications provided the modifications do not adversely affect the performance of the Products. In addition, the Supplier may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by government authority, or non-availability of materials from its suppliers.
All descriptions, illustrations and any other information relating to the Products contained in the Supplier’s catalogs, brochures, price lists, advertising material and any sales or other particulars or literature are made by way of general description, are approximate only and for the general guidance and information of the Buyer. They shall not constitute warranties or representations by the Supplier nor shall they form part of any Contract.

12. WARRANTIES AND REFUNDS

See Warranty and Refund Policy.

13. FORCE MAJURE

Notwithstanding anything to the contrary in these Terms, the Supplier shall not be liable to the Buyer for any loss or damage which may be suffered by the Buyer as a direct or indirect result of the supply of Products or Services being prevented, delayed or rendered uneconomic by reason of circumstances or events beyond the Supplier’s reasonable control. If due to such circumstances or events the Supplier has insufficient stocks to meet all its commitments the Supplier may apportion available stocks between its customers at its sole discretion.

14. CANCELLATION, RESCHEDULING AND TERMINATION

Orders for Products accepted by the Supplier may be cancelled or rescheduled by the Buyer only with the written consent of the Supplier (which consent the Supplier may withhold for any reason) and the Buyer shall indemnify the Supplier against the cost of all labor and materials used in connection with the order so cancelled or varied and against all loss, damage cost, charges and expenses suffered or incurred by the Supplier as a result of that cancellation or variation.
Contracts for Services shall commence on the commencement date identified in the relevant Proposal and, subject to earlier termination in accordance with Section 14.3 or 14.4, shall continue in force for the initial term as prescribed in such Proposal and thereafter for any renewal period (if any) set out in the Proposal and thereafter without limit of period unless or until terminated by either party in accordance with Section 14.3 or 14.4.
Without prejudice to Section 14.4, either party may terminate a Contract for Services by giving ninety days (90) written notice to the other party.
Either party may terminate a Contract for Services immediately at any time by written notice to the other party if the other party commits a material breach of the Contract for Services which is incapable of remedy or which it fails to remedy within thirty days (30) of receiving written notice requiring it to be remedied.
Upon termination or expiry of any Contract for Services, each party shall, except to the extent permitted or required to exercise of perform its continuing rights, or obligations hereunder, return to the other party all property of the other party then in its possession, custody or control and shall not retain any copies of the same.
Termination of any Contract in accordance with these Terms shall not affect the accrued rights or liabilities of the parties at the date of termination.

15. INSOLVENCY OF THE BUYER

If: (i) the Buyer becomes insolvent, has a receiver, administrative receiver, administrator or manager appointed of the whole or any part of its assets or business, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt or an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction) or carries out or undergoes any analogous act or proceedings under an applicable foreign law; or (ii) the Buyer ceases, or threatens to cease to carry on business then, without prejudice to any other right or remedy available to the Supplier, the Supplier may treat any Contract as repudiated and/or withhold any further supply of Products and/or Services without any liability to the Buyer and, if any Products and/or Services have been supplied but not paid for, the price or fees shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

16. EXPORT

Regardless of any disclosure made by Buyer to Supplier of the ultimate destination of Products, Buyer shall not export either directly or indirectly any Product, or any system incorporating said product either in contravention of any law, statute or regulation or without first obtaining all required licenses and permits from all relevant agencies or departments of the United States government, including the United States Department of Commerce. These items are controlled by the U.S. government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. government or as otherwise authorized by U.S. law and regulations.

17. MISCELLANEOUS

These Terms shall be governed by the laws of the State of Minnesota, without regard to its conflict of laws principles.
U.S. Government Restricted Rights. The Site is provided with Restricted Rights. Federal, state and local governments agree to the terms and conditions of this commercial license.
No agency, partnership, joint venture, or employment is created as a result of these Terms, and you do not have any authority of any kind to bind us in any respect whatsoever.
We may provide you with notices, including those regarding changes to these Terms by email, regular mail or postings on the Site. You hereby waive service of process in connection with any legal matters or proceedings pertaining to these Terms, and agree that (to the extent permitted by applicable law) service at the address indicated in your account information is proper service. Such service may be served by mail or fax, which shall be deemed full and complete service on you. If you intend to carry out legal action of any kind against the Site you are required to contact us at least ten (10) business days before any legal claim is made.
These Terms contain the entire agreement between you and us regarding the use of the Site, and supersede any prior agreement between you and us on such subject matter, unless explicitly stated. The parties acknowledge that no reliance is placed on any representation made but not expressly contained in these Terms.
Any failure on our part to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
If any provision of these Terms is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable.
These Terms are not assignable, transferable or sublicensable by you except with our prior written consent, but may be assigned or transferred by us without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
The section titles in these Terms are for convenience only and have no legal or contractual effect.