Terms & Conditions
Standard Terms and Conditions of Sale
These Terms apply to, and form a necessary part of, any Proposal and Contract for the sale, licensing, or supply of Products by EM to Customer (capitalized terms defined below). As used herein, “Proposal” means any Exact proposal, quotation, or offer; and “Contract” means any purchase order issued (or order form signed) by Customer and accepted by EM, or any written agreement entered into by EM and Customer. Any acceptance by Customer of a Proposal is expressly limited to acceptance of these Terms, and Customer’s ordering of Products constitutes acceptance of these Terms.
Each order accepted by Exact shall constitute a separate and independent Contract.
1. DEFINITIONS
1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 “Customer” means the customer to which EM is selling or supplying the Products under the Contract, as identified in the Proposal, order acknowledgement or invoice.
1.3 “Exact” or “EM” means the Exact Metrology Division of In-Place Machining Company, LLC-affiliated legal entity selling or supplying the Products under the Contract, as identified in the Proposal, order acknowledgement or invoice.
1.4 “Parties” means Exact and Customer, and “Party” means either of them individually.
1.5 “Products” means the products EM provides, or is obligated to provide, under the Contract.
1.6 “Software Maintenance” means software maintenance services, if any, Exact provides, or is obligated to provide, under the Contract.
1.7 “Standard Terms and Conditions” means these Standard Terms and Conditions of Sale.
1.8 “Terms” means these Standard Terms and Conditions, together with any and all applicable end user license agreements, offering-specific terms, service descriptions, and other applicable terms and conditions, addenda, policies, schedules, set forth or referenced in, or attached to, these Standard Terms and Conditions or the final Proposal, or specifically agreed upon by EM in writing.
1.9 Additional terms with specific meanings are defined near where they first appear in these Standard Terms and Conditions.
2. PROPOSALS; PURCHASE ORDERS; CREDIT. Proposals by EM are open for acceptance within the period stated in such Proposal or, if no period is stated, within fifteen (15) days from the date of the Proposal, provided that EM may amend or withdraw any Proposal at any time prior to the receipt by EM of the acceptance of a Proposal. Purchase orders may be placed by Customer in any commercially reasonable manner that Customer and EM determine is appropriate, including electronic transmission. Each purchase order should reference the Proposal, and confirm the specific Products, quantity, prices, and “bill to” and “ship to” address. All Customer orders are subject to acceptance by EM. EM acceptance may be by written (including electronic) order acknowledgement, by invoicing, or by shipment or performance. Proposals are made subject to approval by EM. Credit approval, modification, or suspension is at EM’s sole discretion. EM reserves the right to correct clerical errors in the Proposal, order acknowledgement, invoice, or other transaction documentation without any liability on the part of EM.
3. PAYMENT
3.1 Payment is due, without deduction or set-off, in accordance with the terms of any applicable advance, progress, or other agreed upon payment schedule set forth in the final Proposal, and if no payment terms are set forth in the Proposal then payment terms shall be as set forth in the order acknowledgement or invoice. Customer will refer to EM’s Proposal, order acknowledgement, and invoice for other specific payment instructions.
3.2 EM shall be entitled to charge interest on overdue amounts at the rate of one and one-half percent (1.5%) per month (or the maximum amount permitted by applicable law, if less) until EM’s receipt of payment. Customer will also pay costs of collection, including reasonable attorneys’ fees and collection agency fees, associated with EM’s attempts to collect overdue amounts from Customer.
4. TAXES; OTHER CHARGES
4.1 Prices quoted by EM are exclusive of all applicable sales, use, value added, goods and services taxes, and other taxes (and all applicable tariffs, customs duties and similar charges), and Customer will be responsible for payment of all such taxes (other than taxes based on the net income of EM), tariffs, duties and charges (and any related penalties and interest), payable in connection with the Contract or the provision of Products. If Customer is claiming tax exemption status, Customer must provide a valid tax exemption certificate. The prices shall be net of any withholding tax payable by the Customer. If Customer is required by law to withhold taxes, then Customer shall increase the sums paid to EM so that the amount received by EM after the withholding tax is deducted is the full amount EM would have received if no withholding or deduction had been made.
4.2 Unless stated otherwise in the Proposal, prices are also exclusive of any applicable freight and handling, shipment, delivery, transit insurance, transportation, moving, loading and unloading, installation, disposal of packing materials, travel-related charges, or other incidental charges, all of which shall be the responsibility of and paid by Customer.
4.3 EM reserves the right to charge Customer, as an additional charge, for any additional work undertaken over and above that which would have been otherwise required, (including any expenses or financial penalties incurred by EM) as a result of any instructions supplied by Customer being incomplete, incorrect, inaccurate, illegible, out of sequence, in the wrong form, or provided to EM too late to enable it to meet a deadline.
4.4 Credit card payments, if accepted by EM, will be subject to a surcharge.
5. SHIPMENT; DELIVERY; RISK OF LOSS
5.1 Unless otherwise agreed in writing by EM, Products shall be delivered EX WORKS (Incoterms 2020) shipping point.
Unless otherwise agreed in writing by EM, EM may select the carrier and shipping route, and Customer is responsible for payment of any applicable freight and handling charges. Any shipping, delivery and installation dates are estimated dates only, and are conditional on Customer fulfilling its obligations. EM shall not be liable for any loss or expense incurred by Customer if EM or its suppliers fails to meet a delivery schedule. Partial deliveries shall be accepted and paid for by Customer at Contract prices and terms set forth in the Proposal. Partial deliveries may be invoiced separately.
5.2 Risk of damage to or loss of the Products (and insurance responsibilities) shall pass to the Customer at the time the Products are made available for pickup by the applicable carrier.
5.3 Customer may not delay scheduled shipments without EM’s prior written consent, which consent EM may withhold in its sole discretion. Any delay in shipment requested by the Customer and authorized by EM shall be conditioned on Customer indemnifying EM in full for all loss, liabilities, costs, charges and expenses resulting from such delay.
6. CANCELLATION. The Contract and Customer’s payment obligations are non-cancelable, Products are non- returnable, and amounts paid by Customer are non-refundable, except as specifically provided for in these Terms.
7. SECURITY INTEREST. To secure its obligations under the Contract, Customer hereby grants Exact a security interest in (i) the Products (including associated software licenses), and (ii) the proceeds from the Products (including associated software licenses). Customer agrees to assist Exact in perfecting its security interest, including by executing any further agreements or instruments necessary or appropriate to make such security interest binding and enforceable. CUSTOMER HEREBY APPOINTS EXACT OR EXACT’S ASSIGNEE AS ITS TRUE AND LAWFUL ATTORNEY IN FACT, IRREVOCABLY AND COUPLED WITH AN INTEREST, TO EXECUTE AND FILE ON BEHALF OF CUSTOMER ALL UCC FINANCING STATEMENTS OR FILINGS UNDER OTHER STATUTES GOVERNING THE FILING AND PERFECTION OF SECURITY INTERESTS IN PERSONAL PROPERTY WHICH IN EXACT’S SOLE DISCRETION ARE DEEMED NECESSARY OR PROPER TO SECURE EXACT’S INTEREST IN THE PRODUCTS IN ALL APPLICABLE JURISDICTIONS. In the event of default or breach by Customer, Exact may exercise all rights under the Uniform Commercial Code or other applicable statutes governing security interests to enforce its security interest. Customer hereby ratifies, to the extent permitted by law, all that Exact shall lawfully and in good faith do or cause to be done by reason of and in compliance with this paragraph.
8. SOFTWARE AND SOFTWARE MAINTENANCE
8.1 Software; End User License Agreement. Any software to be provided in connection with the Products is third-party software that is licensed and not sold. Usage of such software, and any associated user documentation and materials, shall be subject to the terms and conditions of the end-user/software license agreement accompanying the software or otherwise designated on the applicable software provider’s website as governing the use of such software (“EULA”). Customer shall be bound by and adhere to the terms the applicable EULA(s) and shall cause its users to comply with such terms.
8.2 Software Maintenance. Customer may purchase software maintenance services under the Contract pursuant to the terms of a separate software maintenance agreement.
9. CUSTOMER RESPONSIBILITIES
9.1 Customer’s Products. Customer acknowledges that the Products are not intended as a substitute for professional judgment or independent testing and verification. Customer is solely responsible for (i) selection of the Products to achieve Customer’s intended results; (ii) any output or results obtained by or on behalf of Customer through use of the Products; and (iii) any products or services produced or sold by or on behalf of Customer.
9.2 Occupational Safety and Health. It is Customer’s responsibility to prepare for, install and use Products in a safe, suitable, and legal manner and to provide all proper devices, tools and means to protect all personnel from bodily injury that may result from Customer’s particular use, operation, set-up or service of the Products. Customer is advised to consult the applicable user documentation, safety standards, laws and regulations. Customer shall install and use the Products at all times in compliance with the applicable user documentation, safety standards, laws and regulations, and general standards of care.
9.3 Indemnification. Customer hereby agrees to defend, indemnify and hold Exact and Exact’s Affiliates, suppliers, subcontractors, and representatives harmless from and against all claims, demands, suits and causes of action for property damage, personal injury or death, and all loss, cost, damage and expense (including reasonable attorneys’ fees) arising out of: (i) Customer’s products, services, data, results, outputs, materials, designs or specifications; (ii) Customer’s modification to the Products as originally delivered; (iii) Customer’s failure to purchase, install, provide or implement any safety part or practice customary in the industry (including, but not limited to, a mechanical, electrical or software interlock or other safety device); (iv) Customer’s failure to independently test and verify results and outputs to ensure they are correct, safe and suitable for use; or (v) Customer’s misconduct, negligence, violation of law, breach of contract, or other fault.
10. WARRANTY DISCLAIMER
10.1 EM MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS AND ALL WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, DESIGN OR SUITABILITY, QUALITY OF SERVICE, AS WELL AS ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. EM DOES NOT WARRANT THAT THE OPERATION OF ANY OFFERING WILL BE UNINTERRUPTED OR ERROR-FREE.
10.2 Customer acknowledges that the Products are discrete third-party branded products not manufactured or developed by EM or its Affiliates, and which are sold for resale by EM. The Products may be subject to additional or different third-party warranty terms, terms and conditions, EULAs and/or end user agreements accompanying such Products, or otherwise presented to Customer, which Customer shall be bound by and adhere to. Where no end user terms exist directly between the Customer and third-party manufacturer/licensor, EM will pass through to Customer any transferable Product warranties, indemnities, and remedies provided by the manufacturer, to the extent EM is permitted to do so. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS OR ELSEWHERE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, PRODUCTS ARE PROVIDED BY EM ON AN “AS IS” BASIS, WITH NO WARRANTIES OR INDEMNITIES OF ANY KIND FROM EXACT OR ITS AFFILIATES.
11. LIMITATION OF LIABILITY
11.1 NEITHER EM NOR ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES; FOR LOSS OF USE, PROFITS, REVENUE, SAVINGS, OR DATA; FOR COSTS OF PRODUCT RECALL, INJURY TO REPUTATION, OR LOSS OF CUSTOMERS; FOR LOSS OF USE OF OR DAMAGE TO OTHER EQUIPMENT OR PROPERTY; OR FOR DOWNTIME OR BUSINESS INTERRUPTION; ARISING UNDER OR IN CONNECTION WITH THE CONTRACT, WHETHER SUCH LIABILITY IS BASED UPON CONTRACT (INCLUDING BREACH OF A REPRESENTATION OR WARRANTY), TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHER LEGAL THEORY WHATSOEVER, EVEN IF EXACT HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY WARRANTY OR REMEDY IS HELD TO HAVE FAILED IN ITS ESSENTIAL PURPOSE.
11.2 UNDER NO CIRCUMSTANCE WILL EM OR ITS AFFILIATES’ OR SUPPLIERS’ LIABILITY, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IN THE AGGREGATE, EXCEED THE AMOUNT ACTUALLY RECEIVED UNDER THE CONTRACT FOR THE SPECIFIC PRODUCT OR SERVICE THAT IS THE SUBJECT MATTER OF, OR IS DIRECTLY RELATED TO THE CLAIM. NO CLAIM, REGARDLESS OF FORM MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER THE EVENT GIVING RISE TO THE CLAIM HAS OCCURRED. TO THE EXTENT ANY APPLICABLE LAW LIMITS THE SCOPE OF THESE SECTIONS 11.1 OR 11.2, THE CONTRACT SHALL BE INTERPRETED TO CONFORM TO SUCH LAW IN A MANNER THAT LIMITS EXACT’S AND ITS AFFILIATES’ AND SUPPLIERS’ LIABILITY TO THE FULLEST EXTENT ALLOWED BY LAW.
12. INTELLECTUAL PROPERTY. EM, its Affiliates and third-party suppliers shall retain ownership of all intellectual property they had prior to the Contract. All new intellectual property conceived or created by or on behalf of EM or its Affiliates in the performance of the Contract shall be owned exclusively by EM (or its Affiliates, as applicable). Customer will not: (a) decode, reverse engineer, or decompile any Product, in whole or in part, unless expressly permitted by applicable law without the possibility of contractual waiver; (b) reproduce, distribute, modify, make derivative works or publicly perform any intellectual property of EM or its Affiliates (“EM Intellectual Property”), except as expressly permitted in writing by EM; (c) circumvent, directly or indirectly, any technical measures or devices securing EM Intellectual Property; or (d) otherwise access or manipulate the EM Intellectual Property or any intellectual property of EM’s suppliers which may be included in the Products, except as expressly permitted in writing by EM or its suppliers, as applicable.
13. RIGHTS TO SUSPEND PERFORMANCE. If Customer fails to pay any invoice when due, or is otherwise in breach, EM may, without prejudice to any other right or remedy available to EM, suspend its performance until Customer cures such breach. In addition to the foregoing, EM (or its suppliers) may suspend performance if it has reasonable grounds for insecurity concerning Customer’s performance. Customer shall pay all reasonable expenses incurred by EM in connection with a suspension, including, but not limited to, expenses for repossession, fee collection, and costs of storage during suspension. The schedule for EM’s obligations shall be extended for a period of time reasonably necessary to overcome the effects of any suspension.
14. TERMINATION FOR BREACH. Either Party may terminate the Contract, effective immediately upon written notice to the other Party, for a material breach by the other Party of any term of the Contract that remains uncured thirty (30) days (or ten (10) days in the event that the breach is a failure of Customer to make any required payment) after the non-breaching Party first gives written notice to the other Party of such breach and its intent to terminate the Contract if such breach is not cured. If EM terminates the Contract for breach, without prejudice to any other right or remedy available to EM, Customer must pay within ten (10) days all amounts which have accrued prior to such termination, as well as all sums remaining unpaid for Products ordered under the Contract plus related taxes and expenses. In the event of termination of the Contract, any and all licenses and usage rights granted to Customer with respect to any intellectual property or services under the Contract shall immediately terminate, and EM’s obligation to provide any further Products to Customer under the Contract will immediately terminate. Provisions that survive termination or expiration are those relating to payment, taxes, indemnification, limitation of liability, and others which by their nature are intended to survive.
15. USE OF INFORMATION. Customer shall maintain in confidence any non-public commercial and pricing information disclosed to Customer by or on behalf of EM, and Customer shall not disclose such information to any third party and shall not use any such information for a purpose other than as agreed by the Parties and in relation to the Contract. Customer agrees that EM may disclose Customer’s information, including without limitation, contact information and technical information, to EM Affiliates, suppliers, partners and subcontractors, wherever they do business, in furtherance of the Contract and EM business relationship with the Customer. If Customer provides EM or EM’s Affiliates with feedback, recommendations, or suggestions about the Products (“Feedback”), then, EM and its Affiliates may use such Feedback without obligation to Customer, and Customer hereby irrevocably grants to EM and its Affiliates a perpetual, irrevocable, worldwide, sublicensable, royalty-free right and license to use that Feedback.
16. GENERAL
16.1 Entire Agreement. These Terms state the entire agreement between EM and Customer with respect to the subject-matter hereof, and supersede all prior or contemporaneous agreements or representations, written or oral, with respect to the subject-matter. Customer acknowledges and agrees that in entering into a Contract it has not relied and is not relying on any representations, warranties or other statements whatsoever, whether written or oral other than those expressly set out in this agreement and that it will not have any right or remedy arising out of any representation, warranty or other statement not expressly set out in these Terms. Any additional or different terms or conditions contained or referenced in any Customer purchase order (or other Customer-issued document or instrument) are expressly objected to and rejected and will be of no force or effect. In particular, Customer specifically agrees that any Customer-generated pre-printed terms or general terms and conditions included or referenced in any purchase order (or other Customer-issued document or instrument) will be of no force or effect. These Terms may not be modified except in a writing signed by the authorized representatives of the Parties, or as otherwise permitted herein.
16.2 Order of Precedence. In the case of any conflict the following order of precedence shall apply: (i) the Contract; (ii) the final Proposal; (iii) any applicable terms and conditions, addenda, policies, or schedules, referenced in or attached to these Standard Terms and Conditions, with respect to the Products to which they apply; and (iv) these Standard Terms and Conditions.
16.3 No Waiver. EM shall have the benefit of all rights and remedies provided by law or equity. Failure of EM to exercise or reserve any right or remedy shall not be construed as a waiver thereof or of any other right or remedy.
16.4 Severability. If any provision within the Terms is to any extent illegal, otherwise invalid, or incapable of being enforced, such provision shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable provision shall be deemed replaced by a provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable provision.
16.5 Force Majeure. Neither EM nor its Affiliates or suppliers will be liable or responsible for delay or failure to perform any obligations occasioned by any cause beyond their reasonable control, including but not limited to war; terrorist acts; civil disturbance; epidemic; labor unrest; shortage of raw materials or supply chain disruptions; fire; flood; earthquake; acts or defaults of common carriers or suppliers; governmental laws, acts, regulations, embargoes, orders or restrictions; or any other cause, contingency or circumstance not subject to their reasonable control.
16.6 Assignment; Subcontract. The Contract shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and permitted assigns. Customer may not assign or transfer, by operation of law or otherwise, the Contract (or any rights or obligations hereunder), without EM’s prior written consent. Any attempted assignment or transfer in violation of the foregoing shall be void. EM may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance under the Contract without Customer’s consent. EM, in its sole discretion, will determine the personnel assigned to perform any ervices, and may perform its obligations through Affiliates, third-party representatives, or subcontractors. Customer acknowledges and agrees that EM, and not its Affiliates, will be responsible for EM obligations under the Contract.
16.7 Electronic Signatures. Signed copies of Contract documents transmitted via facsimile transmission, by electronic mail in .pdf or other reliable electronic form, will have the same effect as physical delivery of the paper document bearing the original signature. The Parties agree that electronic signatures may be used and shall be treated, for purposes of validity, enforceability as well as admissibility, the same as written signatures.
16.8 Notices. Notices required under the Contract shall be in writing. Notices shall be effective upon receipt. Exact may provide any notice to Customer by sending an email message to the email address then associated with Customer’s account.
16.9 Authorization. The person agreeing to the Contract on behalf of the Customer represents and warrants that such person is authorized and lawfully able to bind the Customer to the Contract.
16.10 Governing Language. In the event of translation of these Terms to a language other than English, the English language version shall govern in the event of a conflict.
16.11 Customer References. Customer acknowledges and accepts that Exact and its Affiliates have the right to use Customer’s name and logo to identify Customer as a customer in sales and marketing presentations.
16.12 Hardware Loaners or Rentals. Unless otherwise stated by EM, any equipment loaners or rentals made available by EM shall be governed by the terms and conditions of the EM hardware loaner or rental agreement (as applicable), a copy of which is available upon request. In addition to any other requirements, Customer may be required to confirm its acceptance of the loaner or rental agreement, as part of EM’s processing of any Customer loaner or rental request or order. For avoidance of doubt, notwithstanding anything to the contrary in these Terms or elsewhere, as between EM and Customer, title to loaner and rental equipment and equipment shall remain in EM.
16.13 Offering Specific Terms. Certain Products may be subject to additional or different terms applicable to specific Offering(s), such as services descriptions or other service-specific terms, product-specific terms, or other terms relating to specific Product or Service Products. Standard Product specific terms may be attached to or referred to in the Proposal or in these Terms. The version of the applicable Product specific terms effective as of the date of the applicable Proposal shall be deemed incorporated into the Proposal. Customer shall be bound by and adhere to such Product specific terms, as applicable.
16.14 Governing Law. The Contract and any disputes arising out of or in connection with the Contract shall be governed by the laws of the State of Wisconsin without reference to conflict-of-laws principles. Customer agrees to submit to the exclusive jurisdiction of, and venue in, the state and federal courts in the State of Wisconsin in any dispute arising out of or relating to the Contract.
