Terms and Conditions of Sale

AGR INTERNATIONAL, INC. TERMS AND CONDITIONS OF SALE

1.                  SCOPE.  These Terms and Conditions of Sale (“Terms and Conditions”), apply to all quotations and sales of products, services, and the license of software by AGR International, Inc. (“AGR”) to any purchaser (“Customer”).  If AGR has also executed a separate reseller agreement, distribution agreement or other supply agreement with Customer (“Supply Agreement”), these Terms and Conditions will also apply to sales under such Supply Agreement except that in the event of any conflict between these Terms and Conditions and the Supply Agreement, the Supply Agreement will prevail.

2.                  ACCEPTANCE.

If this writing differs in any way from the terms and conditions of Customer’s order or if this writing is construed as an acceptance or as a confirmation acting as an acceptance, then AGR’s acceptance is EXPRESSLY MADE CONDITIONAL ON CUSTOMER’S ASSENT TO ANY TERMS AND CONDITIONS CONTAINED HEREIN THAT ARE DIFFERENT FROM OR ADDITIONAL TO THOSE CONTAINED IN CUSTOMER’S WRITING. Further, this writing shall be deemed notice of objection to such terms and conditions of Customer. If this writing is construed as an offer, acceptance hereof is EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS CONTAINED HEREIN. In any event, Customer’s acceptance of any goods or services shall manifest Customer’s assent to these Terms and Conditions. No addition to or modification of these Terms and Conditions will be effective unless set forth in writing and agreed to by AGR.

3.                  DEFINITIONS.

“Products” means the on-line or laboratory equipment or other products listed in AGR’s quotation and described in AGR’s product catalog and all spare parts sold to Customer from time to time for use with such equipment furnished to Customer. For software, the terms “purchased” or “sold” means “licensed” only.

“Services” means non-warranty maintenance, installation, training, instruction, custom design or other services provided to Customer, at AGR’s sole option, for additional charge under these Terms and Conditions or separate written agreement.

4.                  PRICES, PAYMENT, AND TITLE.

Prices. Prices for Products and Services specified in any AGR quotation (“Quotation”) are valid for the time period specified in the Quotation.  If no time period is specified in the Quotation, the prices are valid for sixty (60) days from date of quotation.

Taxes. Prices do not include, and Customer is responsible for, all taxes (except taxes on AGR’s net U.S.A. income), tariffs and any similar charges imposed upon or in connection with Products or Services, or any document relating to the sale thereof.

Orders. AGR may reject any order from Customer for any reason, including need to allocate Products or Services or Customer’s creditworthiness. Orders will be deemed accepted by AGR upon Customer’s receipt of an Order Confirmation. After the order is accepted, AGR may revoke its acceptance if credit approval is denied or if AGR notifies Customer that AGR requires a letter of credit for the order, and a letter of credit acceptable to AGR is not received 30 days prior to the scheduled ship date specified by AGR.

Payment. Unless otherwise specified in the Order Confirmation, payment for Products with an total order price (“Order Price”) of more than ten thousand dollars ($10,000) is due as follows: (a) thirty percent (30%) of the Order Price for the Product at time of order (“Order Payment“); (b) an additional sixty percent (60%) of the Order Price for the Product (“Shipment Payment“) the earlier of: (i) at least ten (10) days prior to estimated ship date of the Product; or (ii) within thirty (30) days of the submission of the order; and (c) the remaining ten percent (10%) of the Order Price for the Product (“Final Payment“) within thirty (30) days of date of invoice with invoice for Final Payment to be sent at time of shipment. Payment for all other Products and Services is due within thirty (30) days of invoice date. AGR may require payment by irrevocable letter of credit in favor of and acceptable to AGR, established by Customer at its expense. Interest on all amounts unpaid after thirty (30) days may be charged at the annual rate of 1-1/2 percent per month or the highest rate permitted by law, whichever is lower. If any invoice is not paid when due, AGR may suspend delivery or other performance to Customer with respect to any Products or Services under any or all orders without liability or penalty. In addition, AGR at its option, may consider an order cancelled by Customer in the event the Shipment Payment is not received at least ten (10) days prior to shipment, and the cancellation charges specified below will apply.

Modifications. If local ordinances require additional modifications to the Products and Services that are not covered in AGR’s standard product specifications, AGR reserves the right to charge for said modifications and Customer will pay such additional charges.

Title and Security Interest. Both legal and equitable title to each Product sold hereunder will remain in AGR until Customer has paid the full purchase price which is due. AGR reserves a purchase money security interest (or the equivalent thereof under Customer’s local law) in each Product, including all component parts added by modification or repair, and all proceeds from the sale thereof, until full payment is received. Customer agrees to sign upon request any documents necessary to perfect AGR’s security interest.

Final Sale. ALL SALES ARE FINAL. PRODUCTS CANNOT BE RETURNED AFTER SHIPMENT FOR ANY REASON. CANCELLATION CHARGES SET FORTH BELOW WILL APPLY FOR ORDERS CANCELLED PRIOR TO SHIPMENT.

5.                  SHIPPING AND INSTALLATION.

Shipment. Products will be shipped Ex-works (Incoterms 2020) AGR’s Butler, Pennsylvania plant. Method of shipment and carrier will be selected by AGR unless Customer has specified in writing a method and carrier satisfactory to AGR. Use of an approved AGR forwarder for all shipments is required to preserve AGR’s warranty. List of approved forwarders is available upon request. Any charges for packing, storage and transportation (including insurance) to point of delivery are separate charges for the account of Customer. All risk of loss will pass to Customer upon delivery to the carrier.

Ship Dates. AGR will use reasonable commercial efforts to meet ship dates specified by AGR but all such dates are estimates only. At AGR’s option, Products may ship in advance of a requested ship date and/or in installments or partial lots.

Ocean Shipment. AGR’s precision vision equipment including but not limited to the Dimensional Sampling Gauge, Thickness 360, GAWIS, and Pilot Vision are not approved for ocean shipment.  Use of ocean shipment will invalidate all Product warranties for such Products.

Receipt Confirmation.  Upon receipt the Customer shall confirm the completeness of the shipment against the confirmed order for the Products and the packing list for the shipment.  Discrepancies must be reported to AGR headquarters or to the AGR customer’s regional sales office within thirty (30) days of confirmed Customer receipt of the shipment.

Installation. Customer provides all labor for unpacking and placing each Product at the installation site. At the time of delivery (and during the time AGR is responsible for maintenance of the Products under warranty or separate agreement), the installation site must conform to all site specifications provided by AGR. For Products installed by AGR, installation will be deemed complete upon demonstration by AGR that the Products function in accordance with the Product warranty.

6.                  FORCE MAJEURE.

AGR shall not be liable for any loss or damage of any nature whatsoever incurred or suffered as a result of any failures or delays in performance due to any cause or circumstance beyond its control, including, but not by way of limitation, any failures or delays in performance caused by any strikes, lockouts, or labor disputes, fires, acts of God or the public enemy, riots, incendiaries, interference by civil or military authorities, pandemics, epidemics, compliance with the laws of the United States of America or with the orders or policies of any government authority, delays in transit or delivery on the part of transportation companies or communication facilities, or failures of source materials.

7.                  CANCELLATION, RESCHEDULING AND OTHER CHARGES.

Cancellation. If Customer cancels an order less than 60 days but more than 30 days before the ship date specified in the Order Confirmation, Customer will pay cancellation charges of 25% of the total order price. If Customer cancels an order less than 31 days before the ship date specified on in the Order Confirmation, Customer will pay cancellation charges of 50% of the total order price. Any conduct constituting a breach or repudiation of these Terms and Conditions by Customer, such as failure to obtain a timely letter of credit as required, will be deemed to be a cancellation by Customer. In addition, an order shall be deemed cancelled for failure to pay the Order Payment or the Shipment Payment when due.

Rescheduling. In the event that the customer delays a delivery, AGR will hold the Products, without charge, for a time period of not more than two (2) weeks from the scheduled shipment date. For delays longer than 2 weeks, Customer will pay 2.5% of the purchase price of the delayed Products per month for storage fees until shipment occurs.  Any partial months will be charged the amount for a full month.

Service Visits. If for any reason a Customer cancels any scheduled service visit without a minimum of 7 day notification, Customer will pay a cancellation fee of fifty percent (50%) of the fees for such service visit.

Minimum Order Policy. Orders must have a minimum value of $250.00, excluding freight. If a Customer Order does not meet amount stated above, a minimum order fee will be imposed on the order. To avoid the minimum order fee, Customer may add additional items or increase the quantity to meet the minimum order value.

Payment Terms. All cancellation, rescheduling, and other fees referenced in this Section 7 will be invoiced by AGR and due thirty (30) days from date of invoice.

8.                  WARRANTIES AND REMEDIES

New Product System Warranty. AGR warrants that each new Product system (“New Equipment“) sold hereunder will conform substantially to the technical specifications in AGR’s product catalog which apply to such New Equipment for twelve (12) months from the date of shipment of the New Equipment, or twenty-four (24) months if supplied with the additional Total Care Plan available at the time of purchase.  AGR shall be given total access to New Equipment to provide warranty services. Customer shall promptly inform AGR of any changes in the location of New Equipment during the warranty period. AGR shall cover all parts, labor, freight, travel and living expenses, if breach of the warranty for the New Equipment occur within the first ninety (90) days of shipment. The cost of freight, travel and living expenses will be paid by Customer should breach of warranty for the New Equipment occur beyond the first ninety (90) days following shipment. The New Equipment warranty does not apply to spare parts (“Spare Parts”) and Refurbished Equipment (as defined below). Warranty will be void if improper chemicals or improperly mixed chemicals are used in AGR Equipment.

Installation. For New Equipment valued over $10,000, AGR’s warranty policy is contingent upon an AGR factory certified technician installing the New Equipment at Customer’s site within one hundred eighty (180) days of the customer being notified the equipment is ready for shipment, and AGR providing personnel training regarding use of the New Equipment.

Spare Part Warranty. AGR warrants that Spare Parts will be free from defects in material and workmanship for twelve (12) months from the date of shipment. AGR shall cover all parts and freight, if breach of the warranty for the Spare Part occurs within the first ninety (90) days following shipment. The cost of freight will be invoiced to Customer if breach of the warranty for the Spare Part occurs beyond the first ninety (90) days following shipment. Warranty will be void if improper chemicals or improperly mixed chemicals are used in Products.

Repair, Rebuilt, Refurbishment Warranty. AGR warrants that any part, subsystem, or complete system repaired, rebuilt or refurbished at any of AGR’s Repair Facilities (“Refurbished Products“) will conform substantially to the technical specifications in AGR’s product catalog for six (6) months from the date of shipment of the Refurbished Product. This warranty will only extend to the items/parts repaired as outlined in the Repair, Rebuilt or Refurbishment invoice. Warranty will be void if improper chemicals or improperly mixed chemicals are used in Refurbished Products.

WEAR Items. The warranties in this Section do not apply to items which are subject to general wear, including but not limited to moving parts such as belts, inserts, and strips, and water contact parts such as valves and cylinders.

Services.  AGR makes no warranties with respect to any Services.

Remedy. Customer’s sole and exclusive remedy and AGR’s only obligation for breach of warranty for Products furnished hereunder, including New Equipment, Spare Parts, and Refurbished Products, shall be, at AGR’s option, the replacement or repair of the nonconforming Product(s). In order for Customer to exercise this remedy, Customer must give AGR written notice of the nonconformity within the warranty period and AGR must determine that the nonconformity did not arise due to any cause specified the Limitation of Remedy below. If the nonconforming Product is caused by a single part failure, Customer must contact AGR for replacement or repair of that single part. If the nonconforming Product is the New Equipment or Refurbished Equipment, Customer must return the Product postage prepaid FOB destination to AGR for repair upon authorization by AGR for return of the Products. If the nonconforming Product is found non-repairable, AGR will replace or provide credit for that Product. AGR’s total liability is limited to the credit of the purchase price paid to AGR for the nonconforming Product.

Limitation of Remedy. The warranty remedy provided by AGR for Products furnished hereunder does not include the following services, which may be provided, at AGR’s sole option, at AGR’s then-current time and materials charges: (a) repair of damage caused by failure to provide an installation site which continuously conforms to the site specifications provided by AGR; (b) repair of damage caused by accident, misuse, abuse, neglect, improper handling, maintenance or operation of Products or other conditions beyond AGR’s  control; (c) repair of damage caused by Customer’s improper installation, relocation of Products or replacement with a part not furnished by AGR; and (d) electrical or other work or causes external to the Products. The warranties specified in this Section do not apply to any software which is part of the Products.  The terms of software license and the applicable software warranties are specified below.  Except as set forth above with respect to breach of warranty for New Equipment within ninety (90) days of shipment, any warranty service performed other than at AGR’s factory will be at Customer’s expense. This includes travel and living expenses related to such service.

Warranty Disclaimer. EXCEPT FOR THE WARRANTIES STATED IN THESE TERMS AND CONDITIONS, AGR DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS AND SERVICES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. AGR expressly does not warrant that the operation of Products shall be uninterrupted or error free. Customer accepts full responsibility for the selection of the Products to achieve intended results.

Other Services. Following expiration of the applicable warranty period, AGR will provide maintenance service for Products if such services have been ordered by Customer under these Terms and Conditions or Customer and AGR have entered into a separate written maintenance agreement.  All of the provisions of these Terms and Conditions will also apply to such maintenance services, provided that in the event of any conflict between the provisions of the separate maintenance agreement and the provisions of these Terms and Conditions, the provisions of the separate maintenance agreement shall prevail.

9.                  LIMITATION OF LIABILITY.

Consequential Damages. IN NO EVENT WILL AGR BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF USE OF THE PRODUCTS, OR LOSS OF GOODWILL.

Limitation. Notwithstanding whether any remedy fails of its essential purpose or otherwise, the total liability of AGR to Customer from any cause whatsoever, whether arising under contract, warranty, tort (including negligence), strict liability, products liability or any other theory of liability, will be limited to the lesser of Customer’s actual damages or the purchase price paid to AGR for the applicable Products and/or Services that are the subject of Customer’s claim.

Time for Claims. All claims against AGR must be brought within one (1) year after the cause of action arises and Customer expressly waives any statute of limitations which might apply by operation of law or otherwise.

10.              CUSTOMER’S OBLIGATIONS.

Product Notices. Customer is hereby advised and put on notice that Products sold hereunder can be hazardous to persons and property. Customer warrants that it will arrange for instruction for its employees and any other users of the Products in the proper operation and safety precautions for the Products and will maintain all notices, warnings or instructions placed on the Products during the life of the Products. Customer indemnifies AGR against any and all claims for damage or injury caused by Customer’s breach of the above warranty.

Governmental Authorizations. If the destination of any shipment made by AGR hereunder is outside of the United States, AGR will be responsible for the application, in its own name, for any required U.S.A. export license and Customer will be responsible for timely obtaining and maintaining any required import license, exchange permit or any other governmental authorization required for the import of the Products, provision of Services by AGR and the remittance of payments to AGR. AGR and Customer will each provide reasonable assistance to the other party in obtaining such export and import licenses. AGR will not be liable if authorization of any government is delayed, revoked, restricted or not renewed.

Export Controls. Customer warrants that it is and will remain in compliance with all export and reexport requirements, including, but not limited to the Export Administration Act and Regulations, the Arms Export Control Act and regulations, and any orders and licenses issued thereunder (collectively the “Export Laws“). Customer additionally warrants that it has not been, and is not currently, suspended, prohibited or impaired from exporting, reexporting, receiving, purchasing, or otherwise obtaining any product, commodity, or technical data regulated by any agency of the government of the U.S.A. In particular, Customer hereby gives assurance that unless notice is given to and prior authorization is obtained as required by the Export Laws, Customer will not knowingly reexport, directly or indirectly, the Product or any technical data shipped by AGR to Customer or the direct product thereof to an Embargoed Destination or to a prohibited End User.

WEEE Compliance. Customer shall have the sole and exclusive responsibility, and shall bear all costs, for the collection, treatment, recovery and environmentally sound disposal of waste electrical and electronic equipment (“WEEE“) which is part of the Products. Such collection, treatment, recovery and disposal shall be done in accordance with any laws and regulations applicable to Customer and Customer’s use of the Products, and Customer shall defend, indemnify, and hold harmless AGR from and against any claims related to Customer’s failure to comply with any such laws and regulations.

11.              TECHNICAL DATA; ADVICE.

AGR does not assume any liability for any technical data and advice furnished by AGR with respect to Products and the use of such Products.

12.              GENERAL TERMS.

Choice of Law. All disputes arising in connection with these Terms and Conditions will be construed and governed under the laws of the Commonwealth of Pennsylvania without regard to its conflict of laws provisions and excluding the United Nations Convention for the International Sale of Goods. All disputes will be resolved in a court of competent jurisdiction in Butler County, Pennsylvania, and Customer hereby irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts in Butler County, Pennsylvania and agrees to appear in any action upon written notice thereof sent in the manner provided for  below. Notwithstanding the above, AGR, in its sole discretion, may bring a claim against Customer in another court of competent jurisdiction.

Severability. In the event any provision of these Terms and Conditions is found to be invalid or unenforceable, the parties hereby agree that the court shall enforce such provision to the extent permitted by law and, to the extent such provision is not enforceable, shall enforce the remainder of Terms and Conditions as if such provision were not included in these Terms and Conditions.

Headings. All headings are inserted for convenience only and shall have no effect on the construction or interpretation of these Terms and Conditions.

Notices. Notices to be given by either party under these Terms and Conditions shall be in writing and shall be deemed made or given when personally delivered or mailed by certified mail, or express delivery to the last known address of the other party.

No Assignment. No rights or obligations arising under these Terms and Conditions may be assigned or delegated by Customer unless expressly agreed to in writing by AGR. Any assignment contrary to this provision will be void and of no force or effect.

Entire Agreement. These Terms and Conditions, together with AGR’s quotation (if still in effect at the time of order), constitute the final, complete and entire agreement between AGR and Customer and supersede all prior and contemporary agreements, oral or written, with respect to sale of Products and provision of Services. These Terms and Conditions may be modified only by a written amendment executed by duly authorized officers or representatives of both parties.

Waiver. Failure of AGR to enforce any of the terms, conditions and limitations contained in these Terms and Conditions shall not be construed as a wavier thereof or a waiver of any other terms, conditions or limitations herein, and the failure of AGR to exercise any rights arising from default of Customer shall not be deemed to be a waiver of such right or any other right.

13.              SOFTWARE LICENSE TERMS

Software. These license terms will apply to all software provided by AGR to Customer located on the Products and/or accessible on a hand held device (“Software“).

Grant of License. AGR hereby grants Customer a limited, non-exclusive, non-transferable, license to use the Software in object code solely for use as part of the Product with which the Software is supplied. Software shall include all modifications, enhancements, new versions and new releases (collectively “Modifications“) which may be provided by AGR or its authorized representative from time to time. Customer’s right to receive Modifications is contingent upon Customer purchasing maintenance for the applicable Product.

Intellectual Property. AGR and its licensors and/or suppliers, as applicable, shall retain all right, title and interest to the Software including all patents, copyrights, trademarks, trade secret and other proprietary rights thereto. Customer may not make copies of the Software, except for one (1) copy for archival or back-up purposes. All copies of the Software, whether authorized or unauthorized, are subject to the terms and conditions of these Software license terms. Customer will not (i) modify or create derivative works of the Software; (ii) distribute, sell, lend, rent, transfer, decompile, or reverse engineer (except as authorized by applicable law) the Software; (iii) grant any sublicense, leases or other rights in the Software to any third party; or (iv) take any action that would cause the Software to be placed in the public domain. The copyright notices and other proprietary legends shall not be removed from the Software.

Term and Termination. The license for the Software is effective until terminated. In the event of a breach of these Software license terms by Customer, AGR may immediately terminate the license by written notice to Customer.  AGR may also terminate access to the Software via a hand held device (if such access is available) at any time.  Upon any termination, Customer will destroy all copies of the Software or, if requested by AGR, return all copies of the Software to AGR and have an appropriate authorized representative certify in writing the return or destruction of all copies of the Software.

Confidentiality. Customer acknowledges that the Software, related documentation, and other confidential information related to the Products which may be provided by AGR or its authorized representative (collectively “Confidential Information“) is confidential information of AGR. Customer agrees not to disclose the Confidential Information to third parties or use the Confidential Information other than in connection with its license rights under these Terms and Conditions. Customer will use at least the same security measures as Customer uses to protect its own confidential and trade secret information but no less than reasonable measures to protect the Confidential Information. Confidential Information shall not include information: (i) already in Customer’s possession at the time of disclosure, (ii) that is or later becomes part of the public domain through no fault of Customer, or (iii) is required to be disclosed pursuant to law or court order provided that Customer shall notify AGR prior to such disclosure and assist AGR in preventing or limiting such required disclosure. Customer agrees and acknowledges that any breach of the provisions regarding ownership or confidentiality contained in these Terms and Conditions shall cause AGR irreparable harm and AGR may obtain injunctive relief without the requirement to post a bond as well as seek all other remedies available to AGR in law and in equity in the event of breach or threatened breach of such provisions.

Limited Warranty and Disclaimer. AGR warrants that the Software will substantially conform to the published documentation for the Software for twelve (12) months from the date the Software is shipped with the Products or, if the Software is purchased separately from the machine or provided as part of a machine repair, for a period of ninety (90) days from the date the Software is shipped. Customer’s sole remedy and AGR’s sole obligation in the event of breach of this warranty, is, at AGR’s option, correction of the substantial nonconformity or a refund of a license fee for the Software. The above warranty does not apply to the extent: (i) the Software is subjected to misuse or unauthorized use or modified by a party other than AGR; (ii) claims result from acts or omissions caused by persons other than AGR or from products, material or software not provided by AGR; (iii) claims are not reported to AGR within the warranty period or are not documented by Customer.

AGR DISCLAIMS ALL OTHER WARRANTIES FOR THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

Limitation of Liability. IN NO EVENT SHALL AGR OR ANY OF ITS LICENSORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, WHETHER ARISING UNDER CONTRACT, WARRANTY, OR TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF AGR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Regardless of whether any remedy set forth herein fails of its essential purpose or otherwise, AGR’s or any of its licensors’ total liability, regardless of the form of the action, shall not exceed the license fee for the Software, or if there is no separate license fee for the Software, the purchase price of the applicable Product which uses the Software.