TERMS & CONDITIONS

Terms and Conditions of Sale

Vanguard Scientific Systems, Inc.

 (Version July 2020)

 

These Terms and Conditions of Sale (“Terms”) are the only terms and conditions that govern the sale of equipment by Vanguard Scientific Systems, Inc., a Delaware corporation (“Company,” “our,” “we” or “us”) with its principal business address of 14633 Ottaway Road NE, Aurora, Oregon 97002 (“Company Facility”).  These Terms apply to any purchase or procurement of Equipment by Customer from the Company.  To the extent that there is conflicting language or terms between these Terms and any other document or proclaimed terms and conditions obtained by the Customer, these Terms shall control and prevail.  To the extent that there is specific conflicting language or terms between these Terms and an accepted proposal, the specific language of the accepted proposal shall control and prevail. Company and Customer (defined below) are each a “Party” and together “the Parties.”     

 

1. Orders.

1.1.  By executing a written Proposal with us, you (“Customer” or “you”) agree that (i) the Equipment you are purchasing is and will be subject to these Terms and our Proposal that has been accepted by you, and that any additional or conflicting terms in any of your documents, will be disregarded and these Terms shall control and prevail; (ii) the Equipment's specific configurations may change over time and that we may substitute one item with another, so long as they are both substantially similar in all material respects; and (iii) you have, or will have by the scheduled Delivery Date (defined below), a facility where the Equipment can be installed in accordance with Company’s requirements.  


1.2.  The Company shall issue a written proposal (the “Proposal”) to the Customer providing for each piece and quantity of Equipment to be purchased by Customer, the per-unit price for each such piece of Equipment and the total purchase price for all pieces and quantities of Equipment identified therein (the “Equipment Purchase Price”).  These Terms shall be included as part of the Proposal by reference and/or attachment to the Proposal.  Any changes to the terms of an executed Proposal must be made using the Company's change order form signed by both Customer and Company.


1.3.  Customer must remit the non-refundable down payment (as provided in Section 3.3 below) within ten (10) business days from the date Customer executes the Proposal.  If the Customer does not remit the non-refundable down payment within ten (10) business days from the date Customer executes the Proposal, the Company is not obligated to guarantee the Equipment Purchase Price provided in the Proposal.  If there has been a pricing increase for the Equipment after the ten (10) business days have past, a new Proposal will need to be prepared to reflect the pricing increase and such new Proposal will be submitted to the Customer for execution as provided in Section 1.2 above.


1.4.  We may not submit any new Proposals to you for any reason, including, but not limited to, if you are past due on any open invoices.  In addition, if you breach any of your obligations to us under these Terms, any other written agreement between the Parties or any such other agreement terminates, we may: (i) not issue any new Proposals for proposed purchase of new Equipment, (ii) cancel any or all of your existing Proposals and refund any applicable payments made by you, less balance owed if applicable, (iii) refuse shipment, or (iv) exercise all other legal rights and remedies.  We may also, in our sole discretion, cancel any Proposal executed by you, and return any deposit paid, if we discontinue the sale of any line of Equipment or reduce our inventory of same.


1.5.  After the Customer has executed the Proposal, the sale of the Equipment to the Customer is final and the Customer cannot cancel the Proposal nor shall the Customer return, or attempt to return, the Equipment to the Company.

 

2. Delivery and Installation.

 

2.1 Shipment and delivery of the Equipment identified in the Proposal may be made in multiple installments or phases at the sole and absolute discretion of the Company.  The date that the Equipment, or each piece of Equipment if delivered in multiple installments or phases, is actually delivered to Customer’s facility shall be referred to herein as a “Delivery Date” and there may multiple Delivery Dates for the Equipment is the Equipment is shipped and delivered in multiple installments or phases.  The Company shall not be responsible or liable for any delay or disruption in shipping or delivering the whole or any part of installation of the Equipment under these Terms.  The Company will not deliver the Equipment until Customer (i) is able to meet or can provide all requirements listed on our delivery checklist; (ii) has provided all information requested by Company; (iii) has fully paid the Purchase Price for the Equipment; and (iv) has scheduled a date with Company (“Installation Date”) on which the Equipment will be installed by Company at the facility designated by Customer (“Installation Point”) (subsections (i) through (iv) are collectively, (“Delivery Requirements”). 

 

2.2 In some cases, the Company will arrange for delivery of Equipment to the Company Facility for pick-up by a freight service/carrier (“Carrier”) for shipping and transportation to the Installation Point.  In other cases, the Company will arrange for shipping, transportation and delivery of Equipment directly to the Installation Point (without the Equipment passing through the Company Facility) by the Carrier. In either case, the Company will select the Carrier and will arrange for all required travel documentation for shipping and delivery to Installation Points in the United States (“Domestic Shipping”). For shipping and delivery of Equipment to Installation Points outside the United States (“International Shipping”), the Company will provide shipping quotation for Customer review, but the Customer shall be completely and solely responsible for coordinating, securing and paying for shipping and delivery arrangements to get the Equipment to the Customer’s Installation Point.  In either case, the Equipment will be packaged using our standard methods for packaging.  Regardless of which Party arranges for shipping and transport, Customer will be responsible to pay or reimburse Company for the Carrier's costs and for insurance coverage during shipping and transport to the Installation Point, as well as all travel documents and import/export charges, fees, duties, and tariffs due or incurred to the Installation Point.

 

2.3 The Equipment shall be delivered to the Customer Ex Works (Incoterms 2020) from the Company Facility or other shipping origination point (as provided in Section 2.2 above), meaning that risk of loss for the Equipment passes to Customer once the Equipment is picked up by the Carrier (or, first Carrier if multiple Carriers are involved) at the Company Facility or other shipping origination point.  This means that Company will not be responsible or liable for any loss of or damage to Equipment during shipping or transport.  Delivery of the Equipment by the Company will be deemed to be made and completed to the Customer at the Installation Point upon obtaining a signed receipt from the Carrier showing receive of the Equipment in good working order.  Title to the Equipment will transfer to the Customer when we have received full payment of the Purchase Price (“Purchase Price” is the final price including the Equipment Purchase Price and the costs for shipping and transportation of the Equipment and any applicable sales or ad valorem taxes for the Equipment as further defined in Section 3.2) for the Equipment.  Transfer of title to the Customer will be evidenced by a Bill of Sale or other documentation provided by Company.    

 

2.4 Except for a review of the packaging and condition of the Equipment where, upon delivery of the Equipment to the Installation Point, the packaging for the Equipment shows indication that there may be damage to the Equipment during transportation, Customer shall not uncrate, unpackage or unwrap the Equipment, and the Equipment shall only be uncrated, unpackaged and/or unwrapped by the Company, or the Company’s authorized representative, on the Installation Date.

 

2.5 The Equipment will be installed by Company on the Installation Date at Customer’s Facility subject to the payment obligations set out in the installation addendum attached as Exhibit A to these Terms (“Installation Addendum”).  

 

2.6 If, at the Customer’s request and agreed upon by the Company, delivery of the Equipment to the Installation Point is to be delayed beyond the initial Delivery Date provided by the Company to the Customer, the Company may redirect delivery of the Equipment to the Company Facility hold the Equipment at the Company Facility until the Customer is ready for delivery to the Installation Point.  Equipment so redirected and held for the Customer at the Company Facility shall be at the sole cost, expense and risk of the Customer, meaning that the Customer shall immediately reimburse the Company for any and all costs incurred to redirect delivery to and storage at the Company Facility and that Customer must at that time have its own insurance in place to cover loss and damage to the Equipment (and naming the Company as an additional insured) and Customer shall pay reasonable storage fees to the Company.

 

2.7 The Company may store the Equipment for the Customer for no more than sixty (60) days after the initial Delivery Date provided by the Company to the Customer.  If the Customer does not reschedule delivery of the Equipment within such sixty (60) day period, the Company may consider the Equipment abandoned and the Proposal terminated, and the Company may resell the Equipment to a third party.  In such case, the Customer will still be liable to pay Company its reasonable storage fees for the Equipment and Customer will forfeit all monies paid to Company. 

 

3. Prices; Taxes; Payment Terms.  

 

3.1 The Equipment Purchase Price set forth in the Proposal and remains valid provided that Customer remits the non-refundable down payment (as provided in Section 3.3 below) within ten (10) business days from the date Customer executes the Proposal.  If the Customer does not remit the non-refundable down payment within ten (10) business days from the date Customer executes the Proposal, the Company is not obligated to guarantee the Equipment Purchase Price and the Equipment Purchase Price provided in the Proposal is subject to change pursuant to the Company’s standard pricing policy.  If there has been a pricing increase for the Equipment after the ten (10) business days have past, a new Proposal will need to be prepared to reflect the pricing increase and such new Proposal will be submitted to the Customer for execution as provided in Section 1.2 above.

In the event of a net price change and unless otherwise agreed to in writing, Equipment Purchase Prices for Equipment orders scheduled for immediate release shall be those in effect at time of execution of the Proposal.  Equipment Purchase Prices for Equipment orders placed for future shipment without an agreed price and ship date will be billed at the pricing in effect as of the shipment date.  All clerical errors are subject to correction by the Company.

 

3.2 The Equipment Purchase Price stated in the Proposal does not list and is exclusive of shipping and handling costs, tariffs or duties; taxes such as sales, use, excise or value added taxes; travel and expenses associated with installation; and installation and service charges (see Installation Addendum).  The Company shall invoice Customer for the calculate shipping and handling costs, tariffs or duties; taxes such as sales, use, excise or value added taxes, and the amount of such shipping and handling costs, tariffs or duties; taxes such as sales, use, excise or value added taxes plus the Equipment Purchase Price shall be included in the definition of “Purchase Price.”  The Company shall invoice Customer and Customer will be responsible for all of such charges, which charges will be calculated and invoiced to Customer for payment by Customer along with after the remaining fifty percent balance (50%) of the Equipment Purchase Price and the balance of the Purchase Price shall be paid to the Company on the earlier of: (a) sixty (60) days after the Customer’s execution of the Proposal from the Company; or (b) the five (5) days prior to the date when the Equipment is ready to ship to the Installation Location.   

 

3.3 Domestic Purchases.  Unless otherwise specifically provided stated on our Proposal, for Equipment purchased with an Installation Location within the United States of America, payment by Customer of the Purchase Price to the Company shall be as follows: (i) a non-refundable down payment of fifty percent (50%) of the Equipment Purchase Price shall be paid to the Company within ten (10) calendar days after the Company has sent to Customer the initial invoice (titled an “Estimate” by the Company) for the fifty percent (50%) of the Equipment Purchase Price; and (ii) the remaining fifty percent (50%) of the Equipment Purchase Price and the full balance of the Purchase Price (including the invoiced amount for shipping and handling costs, tariffs or duties; taxes such as sales, use, excise or value added taxes shall be paid to the Company on the earlier of: (a) sixty (days) after the Customer’s execution of the Proposal from the Company; or (b) the five (5) days prior to the date when the Equipment is ready to ship to the Installation Location.

 

3.4 International Purchases.  Unless otherwise specifically provided stated on our Proposal, for Equipment purchased with an Installation Location outside of the United States of America, payment by Customer of the Purchase Price to the Company shall be as follows: (i) a non-refundable payment of one hundred percent (100%) of the Equipment Purchase Price the amount for shipping and handling costs (if any), tariffs or duties; taxes such as sales, use, excise or value added taxes shall be paid to the Company within ten (10) calendar days after the Company has sent to Customer the initial invoice (titled an “Estimate” by the Company) for the entire the Equipment Purchase Price and the amount for shipping and handling costs (if any), tariffs or duties; taxes such as sales, use, excise or value added taxes.

 

3.5 All payments due from Customer to the Company must be made in U.S. dollars without deduction or offset and must be by wire or electronic transfer (EFT or ACH) to the Company's account as designated in our order confirmation.

 

3.6 Invoices paid after thirty (30) days of receipt by Customer shall bear interest at a rate of one and a half percent (1.5%) per month or the highest rate allowed by applicable law, whichever is higher, with such interest accruing as of the invoice date and calculated daily and compounded monthly.  Additionally, Customer shall pay a late fee of fifty dollars ($50) per late invoice per month.

 

3.7 Execution of the Proposal by Customer constitutes Customer’s representation and warranty that it can fully pay for all of the Equipment identified in the Proposal in accordance with these Terms and that Customer will have a facility to install the Equipment within the timeframe provided in the Proposal.  You must notify us immediately of any and all events that have had or may have a material adverse effect on your business or financial condition.  If, at any time, we determine in our sole discretion that your financial condition or creditworthiness is inadequate or unsatisfactory, including for failure to timely pay invoices, then in addition to our other rights under these Terms, at law or in equity, we may, without liability or penalty, (i) immediately terminate all orders and/or unfilled written proposals then in place and retain all monies paid by you to the Company; (ii) modifying the payment terms, including by accelerating the due date of all amounts you owe to us; (iii) invoice you for any and all other amounts you may owe to the Company under the written proposal and these Terms; (iv) seek all legal remedies available to the Company at law or in equity. 

 

4. Inspection.

You must inspect the Equipment during your review of the installation checklist with Company’s installer.   You will be deemed to have accepted the Equipment at the earlier of: (i) once you have signed the installation checklist; or (ii) three (3) calendar days after the Installation Date if you have not provided the Company with a rejection notice for the Equipment as provided in these Terms.

 

5. Rejection of the Equipment.

If the Equipment is damaged or nonconforming to performance specifications, the Customer must inform the Company of such damage or nonconformity in writing within three (3) calendar days of the Delivery Date for such piece of Equipment.  Such written notice of damage or nonconformity shall provide sufficient specificity about such damage or nonconformity so that the Company shall be able to reasonably identify the damage or nonconformity.  Customer shall not have the right or ability to reject the Equipment after three (3) calendar days after the Delivery Date of such piece of Equipment.  If the Equipment is rightfully rejected by the Customer, the Company shall, as soon as reasonably possible, at the Company’s sole and absolute discretion: (i) cause the Equipment to be repaired at the Installation Point; or (ii) cause the return of the Equipment to the Company Facility at the Company's sole cost and expense and the Company shall deliver replacement Equipment at the Company’s sole expense within sixty (60) calendar days from the date that the damaged/non-conforming Equipment is returned to the Company.

 

5.1 The Customer acknowledges and agrees that the rejection rights set out in this Section 5 are Customer’s exclusive remedies for the delivery of damaged or nonconforming Equipment.  Except as provided under this Section 5, all sales of equipment to Customer are made on a one-way basis and Customer has no right to return any Equipment purchased from Company.  

 

6. Safety.

Customer must cause each person who receives or uses the Equipment to read and comply with all safety instructions provided by Company, including all product safety notices, warnings, instructions and training materials, manuals, videos or similar materials, the requirement to only use licensed professionals for the installation of the equipment, and the requirement to conduct field verification of the equipment once installed in accordance with applicable law and Company's written instructions (collectively, the “Equipment Manuals”).  Customer will instruct each user in the proper use of the Equipment and will implement and enforce the safety provisions in the Equipment Manuals.  Customer will not remove any safety devices or warnings.  Customer will be solely responsible for complying with any applicable laws and regulations relating to the use of the equipment and the safety of the place where the Equipment is used.  The failure of Customer to comply with this Section 6 shall void and any all warranties provided by the Company with the Equipment.

 

7. Limited Warranty. 

 

7.1 The sale of Equipment manufactured by Company is subject to Company's Limited Warranty, attached to these Terms as Exhibit B.  For Equipment manufactured by third parties, to the extent assignable, Company will assign to Customer all warranties provided by third-party manufacturers or distributors of Equipment sold by Company, if any and as permitted.  Whether or not assignable, such third-party warranties will be Customer's sole and exclusive remedy with respect to third-party Equipment sold by Company.  

 

7.2 EXCEPT FOR COMPANY’S LIMITED WARRANTY ATTACHED IN EXHIBIT B, COMPANY MAKES NO OTHER WARRANTY WHATSOEVER WITH RESPECT TO ANY EQUIPMENT SOLD BY COMPANY AND THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS AND IMPLIED.  COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

 

7.3 The Customer’s failure to strictly follow and perform the safety requirements provided in Section 6 above shall void all warranties provided by the Company or any third party in association with the Equipment. 

 

8. Subsequent Sale.

The Customer must notify Company in writing prior to the Installation Date if Customer intends to sell or has sold the Equipment.  If the Customer so intends to sell or has sold the Equipment, them the Customer shall provide the Company with the name and address of the subsequent purchaser and all terms of the sale of the Equipment to such subsequent purchaser.

9. Delays; Force Majeure.

Delivery dates or other performance dates provided in the written proposal are approximate and estimates only.  The Parties’ performance of any of its obligations under these Terms will be extended to the extent those obligations are delayed by reason of fire, flood, sabotage, war, riot, strike, labor dispute, natural disaster, material shortages, power failure, machinery breakdowns, delay of carriers, acts of terrorism, US or relevant international government emergency declarations, epidemics or pandemics, or any other unforeseeable event beyond each Party’s reasonable control.

10. Confidential Information.

Customer agrees to: (i) hold Company's Confidential Information in strict confidence and not disclose the Confidential Information to any third party, except as authorized by these Terms; (ii) protect and safeguard the confidentiality of the Confidential Information with at least the same degree of care as it would protect its own confidential or proprietary information, but in no event with less than a commercially reasonable degree of care; (iii) not use the Confidential Information for any purpose except as necessary to facilitate the performance of its obligations under these Terms; and (iv) only disclose Confidential Information to any of its Representatives on a “need to know” basis and who are subject to a written agreement or duty of confidentiality consistent with these Terms.  Customer will be responsible for its Representatives' compliance with these Terms.  “Confidential Information” means all information disclosed by Company to Customer, including the terms of these Terms, equipment design and functionality, research, financial information and pricing, financial forecasts, information regarding existing and future product strategies, customer lists, formulas, designs, processes, data, business models, and trade secrets.  Confidential Information may be written, oral, recorded, or contained on tape or on other electronic or mechanical media and does not need to be marked as “confidential” or “proprietary.”  Notwithstanding the foregoing, the term Confidential Information does not include, and the duty of confidentiality does not apply to, information that Customer can show: (a) is or becomes publicly known through no breach of these Terms or other wrongful act or omission of Customer or its Representatives; (b) was rightfully received by Customer or its Representatives from a third party authorized to make such disclosure and not as a result of the breach of any applicable confidentiality obligation; (c) was independently developed by Customer or its Representatives without the use of or reliance on the Confidential Information; or (d) was already known by Customer or its Representatives without breaching any obligation of confidentiality.  In the event of a breach or threatened breach of this Section 10 by Customer, Company, in addition to any other rights and remedies available to it at law or in equity, is entitled to seek preliminary and final injunctions, enjoining and restraining such breach or threatened breach or intended breach without the necessity of posting a bond or other types of financial assurance.

11. Indemnification.

Except to the extent caused by a material latent defect in the Equipment or the gross negligence or intentional misconduct of Company or any of its employees, agents, or representatives, Customer shall defend, indemnify and hold Company and its affiliates and their respective officers, directors, employees, agents, or representatives (individually and collectively, the “Indemnified Parties”) harmless from and against any and all actual or threatened actions, suits, proceedings, claims, losses, liabilities, damages and expenses of any kind (including reasonable, out-of-pocket attorneys' fees) incurred by any of the Indemnified Parties arising out of or related to (i) the gross negligence, intentional misconduct, or breach of these Terms by Customer or its employees, agents, or representatives; (ii) any injury to or death of any person or persons or damage to or loss of property caused by or related to the Equipment; of (iii) Customer's improper use or storage of the Equipment, including Customer's failure to use the Equipment in accordance with all applicable laws, the Equipment Manuals, and common industry practice.  In each case, the Company must promptly notify Customer in writing of the claim, cooperate with Customer, and allow Customer sole authority to control the defense and settlement of such claim.  Settlements must be reasonably approved by Company in writing

12. LIMITATION OF LIABILITY. 

IN NO EVENT WILL COMPANY BE LIABLE FOR (I) ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR OTHER PECUINIARY LOSS, WHETHER ARISING OUT OF BREACH OF AGREEMENT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE OR (II) ANY CLAIM ASSERTED IN AN ACTION FILED MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION AROSE.

13. Software License.

For purposes of these Terms and this Section 3, “Software” means the object code version of the software products contained in any Equipment manufactured by the Company, including all maintenance releases and all related documentation.  Subject to these Terms, and to full payment of the Purchase Price in accordance with these Terms, Company grants to Customer, a non-exclusive, perpetual license, valid only as part of and for the life of the originally designated Equipment, to use the Software in accordance with the relevant end user documentation provided by Company.  Customer has no right to receive, use, reverse-engineer, or examine any source code or design documentation relating to the Software and Customer agrees to not reverse-engineer, or examine any source code or design documentation relating to the Software.  Customer shall not separate any Software sold, bundled, or packaged with any equipment from the equipment or sell, license, or distribute the Software on a standalone basis, or remove, translate, or modify the contents of the Software or documentation related to the Software.  Company also grants Customer access to Company's cloud-based software-as-a-service (but only for equipment manufactured by Vanguard) pursuant to the Software as a Service Agreement attached as Exhibit C to these Terms.

14. Intellectual Property.

The Company retains ownership of all right, title and interest (including copyright and patent rights) in and to the intellectual property relating to the Equipment manufactured by it, the Software and work product relating to such Equipment and Software.  Nothing in these Terms constitutes a transfer or conveyance of any right, title or interest in such intellectual property, including without limitation any Software or firmware contained in the Equipment, except the limited right to use it as provided in these Terms.  As to Equipment manufactured and sold by the Company and the Software, the Company shall defend any suit or proceeding brought against the Customer so far as such suit or proceeding is based on a claim that such Equipment manufactured by the Company and/or Software constitute an infringement of any copyright, trademark or patent in the United States.  This obligation to defend Customer shall be effective only if Customer shall have made all payments then due to the Company hereunder and if the Company is notified promptly in writing and given authority, information and assistance reasonably necessary for the Company’s defense of the same. In the event the use of such Equipment and/or Software by the Customer is enjoined in such a suit, the Company shall, at its expense, and at its sole option, either: (a) procure for the Customer the right to continue using such Equipment/Software; (b) modify such Equipment/Software to render them non-infringing, or (c) replace such Equipment/Software with non-infringing Equipment/Software.  The Company will not be responsible for any compromise or settlement made without its written consent.  The foregoing states the entire liability of the Company for patent, trademark or copyright infringement, and in no event shall the Company be liable if any infringement charge is based on the use of Company Equipment or Software for a purpose other than that for which it was sold by the Company.  As to any Equipment or Software furnished by the Company to the Customer and manufactured or provided in accordance with designs proposed by the Customer, the Customer shall indemnify the Company against any award made against the Company for patent, trademark or copyright infringements. 

 

15. Assignment.

The Company may assign its rights and delegate its obligations under these Terms or any associated written proposal without the Customer's consent or notice to Customer.

 

16. Amendments.

Except as otherwise specifically provided herein, no amendment, supplement, modification or waiver of the written proposal or these Terms is binding unless executed in writing by both Parties. 

 

17. Applicable Laws.

All matters arising out of or relating to the execution, construction, interpretation or breach thereof, are to be governed by the laws of the state of Oregon, excluding any other legal jurisdiction’s rules regarding conflicts of laws and the provisions of the United Nations Convention on Contracts for the International Sale of Goods, which the Parties specifically agree are excluded from the written proposal and these Terms.

18. General Provisions. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THESE TERMS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREBY.  The exclusive venue and jurisdiction for any and all disputes, claims, and controversies arising from or relating to these Terms will be the state and federal courts located in Marion County, Oregon.  If either Party brings an action or proceeding to enforce these Terms, the prevailing party will be entitled to an award of reasonable attorney fees and costs incurred, including on any appeal.  The Parties agree that the rule of construction that a contract be construed against the drafter will not be applied in interpreting these Terms.  If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.  No amendment to or modification of these Terms is effective unless it is in writing and signed by an authorized representative of each Party.  All notices, agreements and other communications required by these Terms must be in writing.  Unless otherwise set out in these Terms, notices must be given by personal delivery; a nationally-recognized, next-day courier service; or first-class registered or certified mail, postage prepaid. 

 


 

Exhibit A

Installation Addendum

      

If the equipment will be installed within the United States:

*Installation, Commissioning and Training Costs are included in the Equipment Purchase Price in the Proposal

 

Category of Costs / Party Responsible to Pay

Travel, lodging, meals and transportation based on standard DSSR per diem - Customer will pay for all of Company's out-of-pocket costs using Company's preferred airline(s) in coach class and at least three-star lodging. 

 

Number of days that technician will be available to train Customer on-site - [Responsible party tbd]

 

Training and support made available to Customer after installation is complete -[Responsible party tbd]

 

If the equipment will be installed outside of the United States:

 

*Installation, Commissioning and Training Costs are included in the Equipment Purchase Price in the Proposal

Category of Costs / Party Responsible to Pay

Travel, lodging, meals and transportation based on standard DSSR per diem - Customer will pay for all of Company's out-of-pocket costs using Company's preferred airline(s) in coach class and at least three-star lodging. 

 

Number of days that technician will be available to train Customer on-site - [Responsible party tbd]

 

Training and support made available to Customer after installation is complete -[Responsible party tbd]

 

  • In both cases, Installation Dates on or near major holidays may increase Company’s travel and lodging costs, which costs will be passed on to Customer.

 
 

Terms and Conditions of Sale

Vanguard Scientific Systems, Inc.

 (Version February 2021)

 

These Terms and Conditions of Sale (“Terms”) are the only terms and conditions that govern the sale of equipment by Vanguard Scientific Systems, Inc., a Delaware corporation (“Company,” “our,” “we” or “us”) with its principal business address of 14633 Ottaway Road NE, Aurora, Oregon 97002 (“Company Facility”).  These Terms apply to any purchase or procurement of a Midas XII supercritical CO2 extraction system (the “Equipment”) by Customer from the Company.  To the extent that there is conflicting language or terms between these Terms and any other document or proclaimed terms and conditions obtained by the Customer, these Terms shall control and prevail.  To the extent that there is specific conflicting language or terms between these Terms and an accepted proposal, the specific language of the accepted proposal shall control and prevail. Company and Customer (defined below) are each a “Party” and together “the Parties.”   

 

1. Orders.

1.1.  By executing a written Proposal with us, you (“Customer” or “you”) agree that (i) the Equipment you are purchasing is and will be subject to these Terms and our Proposal that has been accepted by you, and that any additional or conflicting terms in any of your documents, will be disregarded and these Terms shall control and prevail; (ii) the Equipment's specific configurations may change over time and that we may substitute one item with another, so long as they are both substantially similar in all material respects; and (iii) you have, or will have by the scheduled Delivery Date (defined below), a facility where the Equipment can be installed in accordance with Company’s requirements.  


1.2.  The Company shall issue a written proposal (the “Proposal”) to the Customer providing for each piece and quantity of Equipment to be purchased by Customer, the per-unit price for each such piece of Equipment and the total purchase price for all pieces and quantities of Equipment identified therein (the “Equipment Purchase Price”).  These Terms shall be included as part of the Proposal by reference and/or attachment to the Proposal.  Any changes to the terms of an executed Proposal must be made using the Company's change order form signed by both Customer and Company.


1.3.  Customer must remit the non-refundable down payment (as provided in Section 3.3 below) within ten (10) business days from the date Customer executes the Proposal.  If the Customer does not remit the non-refundable down payment within ten (10) business days from the date Customer executes the Proposal, the Company is not obligated to guarantee the Equipment Purchase Price provided in the Proposal.  If there has been a pricing increase for the Equipment after the ten (10) business days have past, a new Proposal will need to be prepared to reflect the pricing increase and such new Proposal will be submitted to the Customer for execution as provided in Section 1.2 above.


1.4.  We may not submit any new Proposals to you for any reason, including, but not limited to, if you are past due on any open invoices.  In addition, if you breach any of your obligations to us under these Terms, any other written agreement between the Parties or any such other agreement terminates, we may: (i) not issue any new Proposals for proposed purchase of new Equipment, (ii) cancel any or all of your existing Proposals and refund any applicable payments made by you, less balance owed if applicable, (iii) refuse shipment, or (iv) exercise all other legal rights and remedies.  We may also, in our sole discretion, cancel any Proposal executed by you, and return any deposit paid, if we discontinue the sale of any line of Equipment or reduce our inventory of same.


1.5.  After the Customer has executed the Proposal, the sale of the Equipment to the Customer is final and the Customer cannot cancel the Proposal nor shall the Customer return, or attempt to return, the Equipment to the Company.

2. Delivery and Installation.

2.1    Shipment and delivery of the Equipment identified in the Proposal may be made in multiple installments or phases at the sole and absolute discretion of the Company.  The date that the Equipment, or each piece of Equipment if delivered in multiple installments or phases, is actually delivered to Customer’s facility shall be referred to herein as a “Delivery Date” and there may multiple Delivery Dates for the Equipment is the Equipment is shipped and delivered in multiple installments or phases.  The Company shall not be responsible or liable for any delay or disruption in shipping or delivering the whole or any part of installation of the Equipment under these Terms.  The Company will not deliver the Equipment until Customer (i) is able to meet or can provide all requirements listed on our delivery checklist; (ii) has provided all information requested by Company; (iii) has fully paid the Purchase Price for the Equipment; and (iv) has scheduled a date with Company (“Installation Date”) on which the Equipment will be installed by Company at the facility designated by Customer (“Installation Point”) (subsections (i) through (iv) are collectively, (“Delivery Requirements”). 


2.2    In some cases, the Company will arrange for delivery of Equipment to the Company Facility for pick-up by a freight service/carrier (“Carrier”) for shipping and transportation to the Installation Point.  In other cases, the Company will arrange for shipping, transportation and delivery of Equipment directly to the Installation Point (without the Equipment passing through the Company Facility) by the Carrier. In either case, the Company will select the Carrier and will arrange for all required travel documentation for shipping and delivery to Installation Points in the United States (“Domestic Shipping”). For shipping and delivery of Equipment to Installation Points outside the United States (“International Shipping”), the Company will provide shipping quotation for Customer review, but the Customer shall be completely and solely responsible for coordinating, securing and paying for shipping and delivery arrangements to get the Equipment to the Customer’s Installation Point.  In either case, the Equipment will be packaged using our standard methods for packaging.  Regardless of which Party arranges for shipping and transport, Customer will be responsible to pay or reimburse Company for the Carrier's costs and for insurance coverage during shipping and transport to the Installation Point, as well as all travel documents and import/export charges, fees, duties, and tariffs due or incurred to the Installation Point.  The terms and conditions regarding shipping and transport, including allocation of risk of loss, are found in Section 2.3 below.


2.3    The Equipment shall be delivered to the Customer Ex Works (Incoterms 2020) from the Company Facility or other shipping origination point (as provided in Section 2.2 above), meaning that risk of loss for the Equipment passes to Customer once the Equipment is picked up by the Carrier (or, first Carrier if multiple Carriers are involved) at the Company Facility or other shipping origination point.  This means that Company will not be responsible or liable for any loss of or damage to Equipment during shipping or transport, nor will the Company be responsible for filing a claim for the loss or damage with the Carrier.  In the event of loss or damage to the Equipment during shipping or transport, it will be the Customer’s responsibility to file the claim with the Carrier.  However, the Company shall provide reasonable assistance to the Customer, including providing copies of any documentation establishing the condition of the Equipment immediately prior to shipping or transport, in filing a claim with the Carrier.  Delivery of the Equipment by the Company will be deemed to be made and completed to the Customer at the Installation Point upon obtaining a signed receipt from the Carrier showing receive of the Equipment in good working order.  Title to the Equipment will transfer to the Customer when the Company has received full payment of the Purchase Price (“Purchase Price” is the final price including the Equipment Purchase Price and the costs for shipping and transportation of the Equipment and any applicable sales or ad valorem taxes for the Equipment as further defined in Section 3.2) for the Equipment.  Transfer of title to the Customer will be evidenced by a Bill of Sale or other documentation provided by Company.


2.4    Except for a review of the crating, packaging and condition of the Equipment where, upon delivery of the Equipment to the Installation Point, the crating and/or packaging for the Equipment reasonably indicates that there may be damage to the Equipment during transportation, Customer shall not uncrate, unpackage or unwrap the Equipment, and the Equipment shall only be uncrated, unpackaged and/or unwrapped by the Company, or the Company’s authorized representative, on the Installation Date.


2.5    After delivery of the Equipment to the Installation Point and until the Installation Date, the Customer shall store the Equipment in a secure, indoor temperature-controlled location, where the temperature in the room shall not fall below fifty-five degrees (55º) Fahrenheit, nor shall the temperature in the room rise above eighty degrees (80º) Fahrenheit.  Failure to comply with this Section 2.5 shall immediately void all Company representations and warranties regarding the Equipment.


2.6    The Equipment will be installed by Company on the Installation Date at Customer’s Facility subject to the payment obligations set out in the installation addendum attached as Exhibit A to these Terms (“Installation Addendum”).  Unless otherwise agreed upon by the Company in writing prior to the date that the Company has the Equipment ready for transport and shipping to the Installation Point, the Installation Date for the Equipment shall be no more than twenty-one (21) days after the Delivery Date.  


2.7    If, at the Customer’s request and agreed upon by the Company, delivery of the Equipment to the Installation Point is to be delayed beyond the initial Delivery Date provided by the Company to the Customer, the Company may redirect delivery of the Equipment to the Company Facility hold the Equipment at the Company Facility until the Customer is ready for delivery to the Installation Point.  Equipment so redirected and held for the Customer at the Company Facility shall be at the sole cost, expense and risk of the Customer, meaning that the Customer shall immediately reimburse the Company for any and all costs incurred to redirect delivery to and storage at the Company Facility and that Customer must at that time have its own insurance in place to cover loss and damage to the Equipment (and naming the Company as an additional insured) and Customer shall pay reasonable storage fees to the Company.


2.8    The Company may store the Equipment for the Customer for no more than sixty (60) days after the initial Delivery Date provided by the Company to the Customer.  If the Customer does not reschedule delivery of the Equipment within such sixty (60) day period, the Company may consider the Equipment abandoned and the Proposal terminated, and the Company may resell the Equipment to a third party.  In such case, the Customer will still be liable to pay Company its reasonable storage fees for the Equipment and Customer will forfeit all monies paid to Company. 

3. Prices; Taxes; Payment Terms.  

3.1    The Equipment Purchase Price set forth in the Proposal and remains valid provided that Customer remits the non-refundable down payment (as provided in Section 3.3 below) within ten (10) business days from the date Customer executes the Proposal.  If the Customer does not remit the non-refundable down payment within ten (10) business days from the date Customer executes the Proposal, the Company is not obligated to guarantee the Equipment Purchase Price and the Equipment Purchase Price provided in the Proposal is subject to change pursuant to the Company’s standard pricing policy.  If there has been a pricing increase for the Equipment after the ten (10) business days have past, a new Proposal will need to be prepared to reflect the pricing increase and such new Proposal will be submitted to the Customer for execution as provided in Section 1.2 above.
In the event of a net price change and unless otherwise agreed to in writing, Equipment Purchase Prices for Equipment orders scheduled for immediate release shall be those in effect at time of execution of the Proposal.  Equipment Purchase Prices for Equipment orders placed for future shipment without an agreed price and ship date will be billed at the pricing in effect as of the shipment date.  All clerical errors are subject to correction by the Company.


3.2    The Equipment Purchase Price stated in the Proposal does not list and is exclusive of shipping and handling costs, tariffs or duties; taxes such as sales, use, excise or value added taxes; travel and expenses associated with installation; and installation and service charges (see Installation Addendum).  The Company shall invoice Customer for the calculate shipping and handling costs, tariffs or duties; taxes such as sales, use, excise or value added taxes, and the amount of such shipping and handling costs, tariffs or duties; taxes such as sales, use, excise or value added taxes plus the Equipment Purchase Price shall be included in the definition of “Purchase Price.”  The Company shall invoice Customer and Customer will be responsible for all of such charges, which charges will be calculated and invoiced to Customer for payment by Customer along with after the remaining fifty percent balance (50%) of the Equipment Purchase Price and the balance of the Purchase Price shall be paid to the Company on the earlier of: (a) sixty (60) days after the Customer’s execution of the Proposal from the Company; or (b) the five (5) days prior to the date when the Equipment is ready to ship to the Installation Location.   


3.3    Domestic Purchases.  Unless otherwise specifically provided stated on our Proposal, for Equipment purchased with an Installation Location within the United States of America, payment by Customer of the Purchase Price to the Company shall be as follows: (i) a non-refundable down payment of fifty percent (50%) of the Equipment Purchase Price shall be paid to the Company within ten (10) calendar days after the Company has sent to Customer the initial invoice (titled an “Estimate” by the Company) for the fifty percent (50%) of the Equipment Purchase Price; and (ii) the remaining fifty percent (50%) of the Equipment Purchase Price and the full balance of the Purchase Price (including the invoiced amount for shipping and handling costs, tariffs or duties; taxes such as sales, use, excise or value added taxes shall be paid to the Company on the earlier of: (a) sixty (days) after the Customer’s execution of the Proposal from the Company; or (b) the five (5) days prior to the date when the Equipment is ready to ship to the Installation Location.


3.4    International Purchases.  Unless otherwise specifically provided stated on our Proposal, for Equipment purchased with an Installation Location outside of the United States of America, payment by Customer of the Purchase Price to the Company shall be as follows: (i) a non-refundable payment of one hundred percent (100%) of the Equipment Purchase Price the amount for shipping and handling costs (if any), tariffs or duties; taxes such as sales, use, excise or value added taxes shall be paid to the Company within ten (10) calendar days after the Company has sent to Customer the initial invoice (titled an “Estimate” by the Company) for the entire the Equipment Purchase Price and the amount for shipping and handling costs (if any), tariffs or duties; taxes such as sales, use, excise or value added taxes.


3.5    All payments due from Customer to the Company must be made in U.S. dollars without deduction or offset and must be by wire or electronic transfer (EFT or ACH) to the Company's account as designated in our order confirmation.


3.6    Invoices paid after thirty (30) days of receipt by Customer shall bear interest at a rate of one and a half percent (1.5%) per month, with such interest accruing as of the invoice date and calculated daily and compounded monthly.  Additionally, Customer shall pay a late fee of fifty dollars ($50) per late invoice per month.


3.7    Execution of the Proposal by Customer constitutes Customer’s representation and warranty that it can fully pay for all of the Equipment identified in the Proposal in accordance with these Terms and that Customer will have a facility to install the Equipment within the timeframe provided in the Proposal.  You must notify us immediately of any and all events that have had or may have a material adverse effect on your business or financial condition. 

4. Inspection.

You must inspect the Equipment during your review of the installation checklist with Company’s installer.   You will be deemed to have accepted the Equipment at the earlier of: (i) once you have signed the installation checklist; or (ii) three (3) calendar days after the Installation Date if you have not provided the Company with a rejection notice for the Equipment as provided in these Terms.

5. Rejection of the Equipment.

If the crating or packaging for the Equipment is or reasonably appears to be damaged following visual inspection as provided in Section 2.4 above, the Customer must inform the Company of such damage or nonconformity in writing within three (3) calendar days of the Delivery Date for such piece of Equipment.  If, after installation of the Equipment, the Equipment is found to be internally damaged or nonconforming to performance specifications, the Customer must inform the Company of such damage or nonconformity in writing within three (3) calendar days of the Installation Date for such piece of Equipment.  Such written notice of damage or nonconformity shall provide sufficient specificity about such damage or nonconformity so that the Company shall be able to reasonably identify the damage or nonconformity.  If the crating or packaging for the Equipment was visibly damaged upon delivery, Customer shall not have the right or ability to reject the Equipment after three (3) calendar days after the Delivery Date of such piece of Equipment.  If the Equipment is determined to be internally damaged or nonconforming upon installation, Customer shall not have the right or ability to reject the Equipment after three (3) calendar days after the Installation Date of such piece of Equipment.  If the Equipment is rightfully rejected by the Customer, the Company shall, as soon as reasonably possible, at the Company’s sole and absolute discretion: (i) cause the Equipment to be repaired at the Installation Point; or (ii) cause the return of the Equipment to the Company Facility at the Company's sole cost and expense and the Company shall deliver replacement Equipment at the Company’s sole expense within sixty (60) calendar days from the date that the damaged/non-conforming Equipment is returned to the Company.

 

5.1    The Customer acknowledges and agrees that the rejection rights set out in this Section 5 are Customer’s exclusive remedies for the delivery of damaged or nonconforming Equipment.  Except as provided under this Section 5, all sales of equipment to Customer are made on a one-way basis and Customer has no right to return any Equipment purchased from Company.  

6. Safety.

Customer must cause each person who receives or uses the Equipment to read and comply with all safety instructions provided by Company, including all product safety notices, warnings, instructions and training materials, manuals, videos or similar materials, the requirement to only use licensed professionals for the installation of the equipment, and the requirement to conduct field verification of the equipment once installed in accordance with applicable law and Company's written instructions (collectively, the “Equipment Manuals”).  Customer will instruct each user in the proper use of the Equipment and will implement and enforce the safety provisions in the Equipment Manuals.  Customer will not remove any safety devices or warnings.  Customer will be solely responsible for complying with any applicable laws and regulations relating to the use of the equipment and the safety of the place where the Equipment is used.  The failure of Customer to comply with this Section 6 shall void and any all warranties provided by the Company with the Equipment.

 

7. Limited Warranty. 

7.1    The sale of Equipment manufactured by Company is subject to Company's Limited Warranty, attached to these Terms as Exhibit B.  For Equipment manufactured by third parties, to the extent assignable, Company will assign to Customer all warranties provided by third-party manufacturers or distributors of Equipment sold by Company, if any and as permitted.  Whether or not assignable, such third-party warranties will be Customer's sole and exclusive remedy with respect to third-party Equipment sold by Company.  


7.2    EXCEPT FOR COMPANY’S LIMITED WARRANTY ATTACHED IN EXHIBIT B, COMPANY MAKES NO OTHER WARRANTY WHATSOEVER WITH RESPECT TO ANY EQUIPMENT SOLD BY COMPANY AND THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS AND IMPLIED.  COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.


7.3    The Customer’s failure to strictly follow the Terms, including, but not limited to, the Equipment storage requirements in Section 2.5 and safety requirements provided in Section 6 above, shall void all warranties provided by the Company or any third party in association with the Equipment. 

8. Subsequent Sale.

The Customer must notify Company in writing prior to the Installation Date if Customer intends to sell or has sold the Equipment.  If the Customer so intends to sell or has sold the Equipment, them the Customer shall provide the Company with the name and address of the subsequent purchaser and all terms of the sale of the Equipment to such subsequent purchaser.

9. Delays; Force Majeure.

Delivery dates or other performance dates provided in the written proposal are approximate and estimates only.  The Parties’ performance of any of its obligations under these Terms will be extended to the extent those obligations are delayed by reason of fire, flood, sabotage, war, riot, strike, labor dispute, natural disaster, material shortages, power failure, machinery breakdowns, delay of carriers, acts of terrorism, US or relevant international government emergency declarations, epidemics or pandemics, or any other unforeseeable event beyond each Party’s reasonable control.

10. Confidential Information.

Customer agrees to: (i) hold Company's Confidential Information in strict confidence and not disclose the Confidential Information to any third party, except as authorized by these Terms; (ii) protect and safeguard the confidentiality of the Confidential Information with at least the same degree of care as it would protect its own confidential or proprietary information, but in no event with less than a commercially reasonable degree of care; (iii) not use the Confidential Information for any purpose except as necessary to facilitate the performance of its obligations under these Terms; and (iv) only disclose Confidential Information to any of its Representatives on a “need to know” basis and who are subject to a written agreement or duty of confidentiality consistent with these Terms.  Customer will be responsible for its Representatives' compliance with these Terms.  “Confidential Information” means all information disclosed by Company to Customer, including the terms of these Terms, equipment design and functionality, research, financial information and pricing, financial forecasts, information regarding existing and future product strategies, customer lists, formulas, designs, processes, data, business models, and trade secrets.  Confidential Information may be written, oral, recorded, or contained on tape or on other electronic or mechanical media and does not need to be marked as “confidential” or “proprietary.”  Notwithstanding the foregoing, the term Confidential Information does not include, and the duty of confidentiality does not apply to, information that Customer can show: (a) is or becomes publicly known through no breach of these Terms or other wrongful act or omission of Customer or its Representatives; (b) was rightfully received by Customer or its Representatives from a third party authorized to make such disclosure and not as a result of the breach of any applicable confidentiality obligation; (c) was independently developed by Customer or its Representatives without the use of or reliance on the Confidential Information; or (d) was already known by Customer or its Representatives without breaching any obligation of confidentiality.  In the event of a breach or threatened breach of this Section 10 by Customer, Company, in addition to any other rights and remedies available to it at law or in equity, is entitled to seek preliminary and final injunctions, enjoining and restraining such breach or threatened breach or intended breach without the necessity of posting a bond or other types of financial assurance.

11. Indemnification.

Except to the extent caused by a material latent defect in the Equipment or the gross negligence or intentional misconduct of Company or any of its employees, agents, or representatives, Customer shall defend, indemnify and hold Company and its affiliates and their respective officers, directors, employees, agents, or representatives (individually and collectively, the “Indemnified Parties”) harmless from and against any and all actual or threatened actions, suits, proceedings, claims, losses, liabilities, damages and expenses of any kind (including reasonable, out-of-pocket attorneys' fees) incurred by any of the Indemnified Parties arising out of or related to (i) the gross negligence, intentional misconduct, or breach of these Terms by Customer or its employees, agents, or representatives; (ii) any injury to or death of any person or persons or damage to or loss of property caused by or related to the Equipment; of (iii) Customer's improper use or storage of the Equipment, including Customer's failure to use the Equipment in accordance with all applicable laws, the Equipment Manuals, and common industry practice.  In each case, the Company must promptly notify Customer in writing of the claim, cooperate with Customer, and allow Customer sole authority to control the defense and settlement of such claim.  Settlements must be reasonably approved by Company in writing

 

12. LIMITATION OF LIABILITY. 

IN NO EVENT WILL COMPANY BE LIABLE FOR (I) ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR OTHER PECUINIARY LOSS, WHETHER ARISING OUT OF BREACH OF AGREEMENT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE OR (II) ANY CLAIM ASSERTED IN AN ACTION FILED MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION AROSE.

 

13. Software License.

For purposes of these Terms and this Section 3, “Software” means the object code version of the software products contained in any Equipment manufactured by the Company, including all maintenance releases and all related documentation.  Subject to these Terms, and to full payment of the Purchase Price in accordance with these Terms, Company grants to Customer, a non-exclusive, perpetual license, valid only as part of and for the life of the originally designated Equipment, to use the Software in accordance with the relevant end user documentation provided by Company.  Customer has no right to receive, use, reverse-engineer, or examine any source code or design documentation relating to the Software and Customer agrees to not reverse-engineer, or examine any source code or design documentation relating to the Software.  Customer shall not separate any Software sold, bundled, or packaged with any equipment from the equipment or sell, license, or distribute the Software on a standalone basis, or remove, translate, or modify the contents of the Software or documentation related to the Software.  Company also grants Customer access to Company's cloud-based software-as-a-service (but only for equipment manufactured by Vanguard) pursuant to the Software as a Service Agreement attached as Exhibit C to these Terms.

14. Intellectual Property.

The Company retains ownership of all right, title and interest (including copyright and patent rights) in and to the intellectual property relating to the Equipment manufactured by it, the Software and work product relating to such Equipment and Software.  Nothing in these Terms constitutes a transfer or conveyance of any right, title or interest in such intellectual property, including without limitation any Software or firmware contained in the Equipment, except the limited right to use it as provided in these Terms.  As to Equipment manufactured and sold by the Company and the Software, the Company shall defend any suit or proceeding brought against the Customer so far as such suit or proceeding is based on a claim that such Equipment manufactured by the Company and/or Software constitute an infringement of any copyright, trademark or patent in the United States.  This obligation to defend Customer shall be effective only if Customer shall have made all payments then due to the Company hereunder and if the Company is notified promptly in writing and given authority, information and assistance reasonably necessary for the Company’s defense of the same. In the event the use of such Equipment and/or Software by the Customer is enjoined in such a suit, the Company shall, at its expense, and at its sole option, either: (a) procure for the Customer the right to continue using such Equipment/Software; (b) modify such Equipment/Software to render them non-infringing, or (c) replace such Equipment/Software with non-infringing Equipment/Software.  The Company will not be responsible for any compromise or settlement made without its written consent.  The foregoing states the entire liability of the Company for patent, trademark or copyright infringement, and in no event shall the Company be liable if any infringement charge is based on the use of Company Equipment or Software for a purpose other than that for which it was sold by the Company.  As to any Equipment or Software furnished by the Company to the Customer and manufactured or provided in accordance with designs proposed by the Customer, the Customer shall indemnify the Company against any award made against the Company for patent, trademark or copyright infringements. 

 

15. Assignment.

The Company may assign its rights and delegate its obligations under these Terms or any associated written proposal without the Customer's consent or notice to Customer.

 

16. Amendments.

Except as otherwise specifically provided herein, no amendment, supplement, modification or waiver of the written proposal or these Terms is binding unless executed in writing by both Parties.

 

17. Applicable Laws.

All matters arising out of or relating to the execution, construction, interpretation or breach thereof, are to be governed by the laws of the state of Oregon, excluding any other legal jurisdiction’s rules regarding conflicts of laws and the provisions of the United Nations Convention on Contracts for the International Sale of Goods, which the Parties specifically agree are excluded from the written proposal and these Terms.

17. General Provisions.

EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THESE TERMS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREBY.  The exclusive venue and jurisdiction for any and all disputes, claims, and controversies arising from or relating to these Terms will be the state and federal courts located in Marion County, Oregon.  If either Party brings an action or proceeding to enforce these Terms, the prevailing party will be entitled to an award of reasonable attorney fees and costs incurred, including on any appeal.  The Parties agree that the rule of construction that a contract be construed against the drafter will not be applied in interpreting these Terms.  If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.  No amendment to or modification of these Terms is effective unless it is in writing and signed by an authorized representative of each Party.  All notices, agreements and other communications required by these Terms must be in writing.  Unless otherwise set out in these Terms, notices must be given by personal delivery; a nationally-recognized, next-day courier service; or first-class registered or certified mail, postage prepaid. 

Exhibit A

Installation Addendum
 

If the equipment will be installed within the United States:

*Installation, Commissioning and Training Costs are included in the Equipment Purchase Price in the Proposal

 

Category of Costs / Party Responsible to Pay

Travel, lodging, meals and transportation based on standard DSSR per diem - Customer will pay for all of Company's out-of-pocket costs using Company's preferred airline(s) in coach class and at least three-star lodging. 

 

Number of days that technician will be available to train Customer on-site - [Responsible party tbd]

 

Training and support made available to Customer after installation is complete -[Responsible party tbd]

​​

 

If the equipment will be installed outside of the United States:

 

*Installation, Commissioning and Training Costs are included in the Equipment Purchase Price in the Proposal

Category of Costs / Party Responsible to Pay

Travel, lodging, meals and transportation based on standard DSSR per diem - Customer will pay for all of Company's out-of-pocket costs using Company's preferred airline(s) in coach class and at least three-star lodging. 

 

Number of days that technician will be available to train Customer on-site - [Responsible party tbd]

 

Training and support made available to Customer after installation is complete -[Responsible party tbd]

 

In both cases, Installation Dates on or near major holidays may increase Company’s travel and lodging costs, which costs will be passed on to Customer.

 

 

Limited Warranty

Vanguard Scientific Systems, Inc.

MIDAS XII System

 

Vanguard Scientific Systems, Inc., a Delaware corporation (the “Company”) provides the following limited warranty to the original retail purchaser (the “Original Purchaser”) of a MIDAS XII supercritical CO2 botanical extraction system (“Equipment”) purchased directly from the Company or from one of the Company’s authorized dealer.

 

1. Limited Warranty.

 

1.1 This is the Company’s Limited Warranty Policy for the Equipment (this “Warranty) and supersedes all previous warranties for the Equipment.  The Company reserves the right to make design changes, additions to, and improvements upon future versions of the any of the Company’s MIDAS XII supercritical CO2 botanical extraction system without incurring any obligation to incorporate same on any previously manufactured versions of the MIDAS XII supercritical CO2 botanical extraction system.  In the event that any provision of this Warranty should be, or become, invalid and/or unenforceable, the remaining terms and provisions hereof shall continue in full force and effect.  In the event that the Company negotiates, with respect to any particular MIDAS XII supercritical CO2 botanical extraction system purchased from the Company, a replacement, performance, compromise or settlement not consistent with this Warranty, such action of the Company shall not be deemed a waiver or expansion of this Warranty and this Warranty shall remain in full force and effect as written with respect to the Equipment or any other MIDAS XII supercritical CO2 botanical extraction system, whether of this type or kind. No party in any way affiliated with the Company is authorized to amend or vary the terms of this Warranty.

 

1.2 Company warrants to the “Original Purchaser,” and to no others, that the Equipment (excluding parts and components manufactured by third-party manufacturers, whether or not covered by third-party warranties, as discussed below) will be free from defects in workmanship and materials for the period of time commencing on the date of the Equipment's installation at the Original Purchaser’s facility and continuing for a period of one (1) year (the “Warranty Period”); provided, however that  the Equipment is used as it was intended and in accordance with the Equipment Manuals (defined below).

 

1.3 For purposes of this Warranty, “Original Purchaser” shall mean that person, business entity, association, or corporation whose name shall appear as purchaser on the original invoice or contract for purchase of the Equipment from the Company.  The rights and obligations under this Warranty may be assigned by the Original Purchaser to a third-party only by prior written authorization of the Company, which authorization may be granted or denied in the Company’s sole and absolute discretion.   To the extent they are assignable, Company will assign all warranties provided by third-party manufacturers or distributors of parts or components installed in the Equipment to the Original Purchaser, if any, and as permitted.  Whether or not assignable, third-party warranties will be the Original Purchaser's sole and exclusive remedy with respect to third-party parts or components installed in the Equipment.

  

1.4 This Warranty does not cover and specifically excludes any cosmetic damage (including denting) to the Equipment.  Additionally, this Warranty shall not cover consumable items or components in the Equipment such as wetted parts, seals, O-rings or items intended for consumption or replacement on a routine basis in the ordinary operation of the Equipment.  This Warranty does not cover and specifically excludes coverage for the Vacuum Pump V-300 component of the Equipment.  This Warranty does not cover and specifically excludes any damage or defects due to: (i) transportation or storage of the Equipment; (ii) external causes such as abuse, misuse, accidents, or other actions or events beyond Company's actual, reasonable control; (iii) unauthorized alterations or repairs to the Equipment; (iv) failure to follow all safety instructions provided by Company, including all product safety notices, warnings, instructions and training materials, manuals, videos or similar materials (collectively, “Equipment Manuals”); (v) failure to conduct and perform routine maintenance as described in the Equipment Manuals; or (vi) normal wear and tear. 

 

1.5This Warranty does not cover travel expenses incurred by the Company in servicing any Warranty claim under this Warranty.  Such travel expenses, including, but not limited to, airfare, lodging, rental vehicles, meals and incidentals, shall be paid directly by the Original Purchaser, or shall be immediately reimbursed to the Company upon Original Purchaser’s receipt of an itemized invoice therefore.

 

1.6 The Warranty Period will not be extended by the time it takes Company to complete any Warranty claim under this Warranty.

 

1.7 The Equipment may only be serviced or repaired by the Company.  Any service or repair of repair of the Equipment not performed by the Company will void this Warranty.

 

2. Claim Submittal Process.

 

2.1 Warranty Remedy.

Should any failure to conform to the foregoing Warranty appear within the Warranty Period, the Company shall, at its option, upon prompt notice of such non- conformity and confirmation that the Equipment has been properly stored, installed, operated, and maintained, correct the non-conformity either by repairing any defective portion or component of the Equipment or by shipping a replacement Equipment to the Original Purchaser.  All repair work to be performed under this Limited Warranty will be made either where the Equipment is installed or at Company's facility, at Company's sole discretion.  If repairs will be made where the Equipment is installed, Customer must arrange for access to the Equipment.  Company requires access to the Equipment during regular business hours for on-site repairs.  If repairs will be made at Company's facility, Customer must coordinate the return of the Equipment's defective part(s) to and from Customer’s facility.  Company will pay for up to Seventy-Five Dollars ($75.00) of the shipping and handling costs.  THE FOREGOING REMEDY SHALL CONSTITUTE THE ORIGINAL PURCHASER’S SOLE AND EXCLUSIVE REMEDY AND A FULFILLMENT OF ALL OF THE COMPANY’S LIABILITY WITH RESPECT TO THE EQUIPMENT.

 

2.2 Warranty Claims. This Warranty covers only those conforming claims reported in writing to Company during the Warranty Period.  The Original Purchaser’s written notice of warranty claim must be sent to customersuccess@vanguardscientific.com.  The Original Purchaser's written notice of claim must include specific descriptions of the nature of the claimed defect, including pictures if possible, and proof of purchase.  Any written warranty claim submitted by the Original Purchaser will be deemed waived unless such written warranty claim is submitted to Company in writing as provided herein within thirty (30) days after the Original Purchaser discovers the claimed defect.  To qualify for Warranty replacement, all returns must be completed and received before the end of the Warranty Period and within thirty (30) days of actual the discovery of the defect.

 

2.3 Return of Components or Parts. Any defective Equipment components or parts therefrom subject to a warranty claim, may be returned to the Company only upon prior written authorization from the Company.  All returned Equipment components and/or parts subject to a warranty claim must be shipped prepaid to the Company.  No collect shipments will be accepted by the Company. The Original Purchaser must be certain that the packaging of Equipment components or parts subject to a warranty claim is adequate to ensure no damage in transit. This Warranty shall be considered void if, in the Company’s sole and absolute opinion, any Equipment component or part subject to a warranty claim is damaged due to careless or improper packaging or handling.

 

2.4 Any Equipment component or part returned to the Company under the terms of this Warranty must be accompanied by a Return Goods Tag, properly filled out as to the Unit Model Number, the Serial Number and a detailed explanation of failure.  Only defective components or parts of the Equipment should be returned the Company.  The complete Equipment unit must not be returned to the Company unless expressly authorized by the Company in writing.

2.5 DISCLAIMER AND LIMITATION OF LIABILITY.  EXCEPT FOR THE WARRANTY SET OUT IN SECTION 1, COMPANY MAKES NO OTHER WARRANTY WHATSOEVER WITH RESPECT TO THE EQUIPMENT AND THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS AND IMPLIED.  THE COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.  IN NO EVENT WILL COMPANY BE LIABLE FOR (I) ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND, WHETHER DIRECT OR INDIRECT OR (II) ANY CLAIM ASSERTED IN AN ACTION FILED MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE.  THE COMPANY’S ENTIRE LIABILITY FOR ANY BREACH OF THIS LIMITED WARRANTY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY THE ORIGINAL PURCHASER FOR THE DEFECTIVE EQUIPMENT.

 

2.6 It is expressly provided that there is no warranty either express or implied that all components will remain available for the life of the Equipment and that if any federal, state or local laws or regulations prohibit the sale of any components, all obligations for replacement hereunder are terminated.

2.7 Some states do not allow the exclusions or limitations of incidental or consequential damages, or how long an implied warranty lasts, and, therefore, some or all of the above limitations or exclusions may not apply to the Original Purchaser.  This Warranty gives the Original Purchaser specific legal rights, and the Original Purchaser may also have other rights which vary from state to state.

 

3. General Provisions.

 

3.1 This Warranty and any action related to it will be governed and interpreted by and under the laws of the State of Oregon, without giving effect to any principles that provide for the application of the law of another jurisdiction.  The exclusive venue and jurisdiction for any and all disputes, claims, and controversies arising from or relating to this Warranty will be the state and federal courts located in Marion County, Oregon.  The Parties agree that the rule of construction that a contract be construed against the drafter will not be applied in interpreting this Warranty. 

 

3.2 The Company’s Equipment repaired or replaced pursuant to this Warranty shall be warranted for the unexpired portion of the Warranty applying to the original piece of Equipment.  Any technical advice furnished before or after delivery in regard to the use or application of the Equipment is furnished without charge and on the basis that it represents the Company’s best judgement under the circumstances, but that it is used at the Original Purchaser’s sole risk.

 

3.3 The Equipment, or any components or parts thereof, subject to this Warranty must not be returned to the Company without prior authorization from the Company as provided in Section 2.3 above and all returns must conform to the Warranty Return Procedure provided in Section 2 above.

 

3.4 The Company will not cover, and this Warranty expressly does not include, any repair, replacement, analysis or other expense for parts or services furnished on any equipment not manufactured by the Company unless specifically authorized in writing by the Company.  Any components subsequently attached or affixed to the Equipment will not be covered by the Warranty, even if the Company has expressly accommodated the Equipment to cover said installation or attachment.  Any components subsequently attached must be approved components previously tested by the Company or installation of such components will void the Warranty to the entire Equipment unit.  This Warranty does not include any minor adjustments or preparation associated with making the Equipment operational after receipt of shipment.

 

3.5 Damage to the Equipment incurred during shipment must be reported to the terminating carrier by the Original Purchaser or her/his/its consignee and a claim filed with said carrier. No claims for freight damage should be filed with the Company, as a warranty claim or otherwise.  This Warranty contained herein SHALL NOT APPLY or be deemed to place any liability on the Company for any labor or additional material costs in repairing or replacing Equipment components or parts covered by the Warranty.

 

  1. Non-Warranty Repair or Replacement; Extended Warranty and Service Agreement.

 

4.1 Equipment components or parts whose Warranty hereunder has expired or been violated should not be returned to the Company without specific prior written authorization from the Company and a purchase order for the work to be performed.

 

4.2 If, upon receipt of an Equipment component or part by the Company, it is discovered that the Warranty has expired or been violated, the Company, at is election, may repair or replace the Equipment component or part or return it, as is, at the Original Purchaser’s sole expense and cost.

 

4.3 Any Equipment components or parts replaced by the Company shall be billed to the Original Purchaser at the retail cost of the replacement part less the salvage value of the part replaced.

 

4.4 In addition to the Warranty provided herein, the Original Purchaser may purchase an Extended Warranty and/or a Service Agreement for the Equipment from the Company.  The terms, conditions and coverages under each of the Extended Warranty and/or the Service Agreement are separate and independent from this Warranty and from each other. 

 

Twelve (12) Month Extended Warranty

Vanguard Scientific Systems, Inc.

MIDAS XII System

 

Vanguard Scientific Systems, Inc., a Delaware corporation (the “Company”) provides the following extended warranty to the original retail purchaser (the “Original Purchaser”) for the MIDAS XII supercritical CO2 botanical extraction system (“Equipment”) that has been in use after expiration of the standard one (1) year Limited Warranty.

 

1. Extended Warranty.

 

1.1 This is the Company’s Limited Extended Warranty Policy for the Equipment (this “Extended Warranty) that has been in use after expiration of the standard one (1) year Limited Warranty.  The Original Purchaser must purchase the Extended Warranty within the eleven (11) month period after the Original Purchaser purchased and took possession of the Equipment.  The Company reserves the right to make design changes, additions to, and improvements upon future versions of the any of the Company’s MIDAS XII supercritical CO2 botanical extraction system without incurring any obligation to incorporate same on any previously manufactured versions of the MIDAS XII supercritical CO2 botanical extraction system.  In the event that any provision of this Extended Warranty should be, or become, invalid and/or unenforceable, the remaining terms and provisions hereof shall continue in full force and effect.  In the event that the Company negotiates, with respect to any particular MIDAS XII supercritical CO2 botanical extraction system purchased from the Company, a replacement, performance, compromise or settlement not consistent with this Extended Warranty, such action of the Company shall not be deemed a waiver or expansion of this Extended Warranty and this Extended Warranty shall remain in full force and effect as written with respect to the Equipment or any other MIDAS XII supercritical CO2 botanical extraction system, whether of this type or kind. No party in any way affiliated with the Company is authorized to amend or vary the terms of this Extended Warranty.

 

1.2 Under the Extended Warranty, and for the Extended Warranty Period, depending upon the specific Extended Warranty plan purchased, the Company shall provide the “Original Purchaser” with: (i) a fixed package of covered parts and labor for the Equipment; (ii) a discounted labor rate and parts purchase price beyond for warranty repairs needed beyond the fixed package of covered parts and labor; and (iii) expedited service, troubleshooting, diagnostic and onsite servicing support services.  The Extended Warranty coverage period shall commence on the one year anniversary date of the Equipment's installation at the Original Purchaser’s facility and continuing thereafter for a period of one (1) year (the “Extended Warranty Period”); provided, however that the Equipment is used as it was intended and in accordance with the Equipment Manuals (defined below).

 

1.3 For purposes of this Extended Warranty, “Original Purchaser” shall mean that person, business entity, association, or corporation whose name shall appear as purchaser on the original invoice or contract for purchase of the Equipment from the Company.  The rights and obligations under this Extended Warranty may NOT be assigned by the Original Purchaser to a third-party.

  

1.4 This Extended Warranty does not cover any cosmetic damage (including denting) to the Equipment.  Additionally, this Extended Warranty shall not cover consumable items or components in the Equipment such as wetted parts, seals, O-rings or items intended for consumption or replacement on a routine basis in the ordinary operation of the Equipment.  This Extended Warranty does not cover any damage or defects due to: (i) transportation or storage of the Equipment; (ii) external causes such as abuse, misuse, accidents, or other actions or events beyond Company's actual, reasonable control; (iii) unauthorized alterations or repairs to the Equipment; (iv) failure to follow all safety instructions provided by Company, including all product safety notices, warnings, instructions and training materials, manuals, videos or similar materials (collectively, “Equipment Manuals”); (v) failure to conduct and perform routine maintenance as described in the Equipment Manuals; or (vi) normal wear and tear. 

 

1.5 The Extended Warranty Period will not be extended by the time it takes Company to complete any Extended Warranty claim under this Extended Warranty.

 

1.6 The Equipment may only be serviced or repaired by the Company.  Any service or repair of repair of the Equipment not performed by the Company will void this Extended Warranty.

 

2. Extended Warranty Products.

 

The Company offers three (3) different Extended Warranty packages, as further described below.

 

2.1 Platinum Extended Warranty Plan.  Under the Platinum Extended Warranty Plan, the Company shall provide: (i) up to Seven Thousand Dollars ($7,000.00) in covered parts and labor (with labor valued at the rate of $175 per hour and parts valued at the Company’s cost for the parts) (the “Covered Service Package”); (ii) a telephone response time of thirty (30) minutes to Original Purchaser’s questions placed between the Company’s regular business hours of 8am PST and 5pm PST, Monday through Friday (excluding holidays); (iii) a telephone response time of sixty (60) minutes to Original Purchaser’s questions placed after the Company’s regular business hours; (iv) same day troubleshooting and remote diagnostic services made during the Company’s regular business hours; and (v) on-site servicing (when needed, in the Company’s sole discretion) within two (2) business days of the Company’s receipt of the warranty/servicing claim).  In addition, in the event that the Covered Service Package is fully consumed during the Extended Warranty Period, for any service or repair claim during Extended Warranty Period, the Original Purchaser’s cost for labor shall be $125.00 per hours and the cost for parts shall be the Company’s cost plus thirty percent (30%).  The cost for the Platinum Extended Warranty Plan shall be Twelve Thousand Dollars ($12,000.00), payable in full in advance.

 

2.2 Gold Extended Warranty Plan.  Under the Gold Extended Warranty Plan, the Company shall provide: (i) up to Five Thousand Dollars ($5,000.00) in covered parts and labor (with labor valued at the rate of $175 per hour and parts valued at the Company’s cost for the parts) (the “Covered Service Package”); (ii) a telephone response time of sixty (60) minutes to Original Purchaser’s questions placed between the Company’s regular business hours of 8am PST and 5pm PST, Monday through Friday (excluding holidays); (iii) a telephone response time of four (4) hours to Original Purchaser’s questions placed after the Company’s regular business hours; (iv) troubleshooting and remote diagnostic services made during the Company’s regular business hours shall be responded to within twenty-four (24) hours; and (v) on-site servicing (when needed, in the Company’s sole discretion) within three (3) business days of the Company’s receipt of the warranty/servicing claim).  In addition, in the event that the Covered Service Package is fully consumed during the Extended Warranty Period, for any service or repair claim during Extended Warranty Period, the Original Purchaser’s cost for labor shall be $125.00 per hours and the cost for parts shall be the Company’s cost plus thirty percent (30%).  The cost for the Gold Extended Warranty Plan shall be Ten Thousand Dollars ($10,000.00), payable in full in advance.

 

2.3 Silver Extended Warranty Plan.  Under the Silver Extended Warranty Plan, the Company shall provide: (i) up to Three Thousand Dollars ($3,000.00) in covered parts and labor (with labor valued at the rate of $175 per hour and parts valued at the Company’s cost for the parts) (the “Covered Service Package”); (ii) a telephone response time of twenty-four (24) hours to Original Purchaser’s questions placed between the Company’s regular business hours of 8am PST and 5pm PST, Monday through Friday (excluding holidays); (iii); troubleshooting and remote diagnostic services made during the Company’s regular business hours shall be responded to within forty-eight (48) hours; and (v) on-site servicing (when needed, in the Company’s sole discretion) within five (5) business days of the Company’s receipt of the warranty/servicing claim).  In addition, in the event that the Covered Service Package is fully consumed during the Extended Warranty Period, for any service or repair claim during Extended Warranty Period, the Original Purchaser’s cost for labor shall be $125.00 per hours and the cost for parts shall be the Company’s cost plus thirty percent (30%).  The cost for the Silver Extended Warranty Plan shall be Seven Thousand Dollars ($7,000.00), payable in full in advance.

 

3. Claim Submittal Process.

 

3.1 Warranty Remedy. All repair work to be performed under this Extended Warranty will be made either where the Equipment is installed or at Company's facility, at Company's sole discretion.  If repairs will be made where the Equipment is installed, Customer must arrange for access to the Equipment.  Company requires access to the Equipment during regular business hours for on-site repairs.  If repairs will be made at Company's facility, Customer must coordinate the return of the Equipment's defective part(s) to and from Customer’s facility.  Company will pay for shipping and handling.  THE FOREGOING REMEDY SHALL CONSTITUTE THE ORIGINAL PURCHASER’S SOLE AND EXCLUSIVE REMEDY AND A FULFILLMENT OF ALL OF THE COMPANY’S LIABILITY WITH RESPECT TO THE EQUIPMENT.

 

3.2 Warranty Claims. This Extended Warranty covers only those conforming claims reported in writing to Company during the Extended Warranty Period.  The Original Purchaser’s written notice of warranty claim must be sent to customersuccess@vanguardscientific.com.  The Original Purchaser's written notice of claim must include specific descriptions of the nature of the claimed defect, including pictures if possible, and proof of purchase.  Any written warranty claim submitted by the Original Purchaser will be deemed waived unless such written warranty claim is submitted to Company in writing as provided herein within thirty (30) days after the Original Purchaser discovers the claimed defect.  To qualify for Extended Warranty, all returns must be completed and received before the end of the Extended Warranty Period and within thirty (30) days of actual the discovery of the defect.

  

3.3 DISCLAIMER AND LIMITATION OF LIABILITY.  EXCEPT FOR THE EXTENDED WARRANTY SET OUT IN SECTIONS 1 AND 2, COMPANY MAKES NO OTHER WARRANTY WHATSOEVER WITH RESPECT TO THE EQUIPMENT AND THIS EXTENDED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS AND IMPLIED.  THE COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.  IN NO EVENT WILL COMPANY BE LIABLE FOR (I) ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND, WHETHER DIRECT OR INDIRECT OR (II) ANY CLAIM ASSERTED IN AN ACTION FILED MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION AROSE.  THE COMPANY’S ENTIRE LIABILITY FOR ANY BREACH OF THIS EXTENDED WARRANTY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY THE ORIGINAL PURCHASER FOR THE EXTENDED WARRANTY.

 

3.4 It is expressly provided that there is no warranty either express or implied that all components will remain available for the life of the Equipment and that if any federal, state or local laws or regulations prohibit the sale of any components, all obligations for replacement hereunder are terminated.

 

4. General Provisions.

 

4.1 This Extended Warranty and any action related to it will be governed and interpreted by and under the laws of the State of Oregon, without giving effect to any principles that provide for the application of the law of another jurisdiction.  The exclusive venue and jurisdiction for any and all disputes, claims, and controversies arising from or relating to this Extended Warranty will be the state and federal courts located in Marion County, Oregon.  The Parties agree that the rule of construction that a contract be construed against the drafter will not be applied in interpreting this Extended Warranty. 

 

4.2 Any technical advice furnished before or after delivery in regard to the use or application of the Equipment is furnished without charge and on the basis that it represents the Company’s best judgement under the circumstances, but that it is used at the Original Purchaser’s sole risk.

 

4.3 The Company will not cover, and this Extended Warranty expressly does not include, any repair, replacement, analysis or other expense for parts or services furnished on any equipment not manufactured by the Company.  Any components subsequently attached or affixed to the Equipment will not be covered by this Extended Warranty, even if the Company has expressly accommodated the Equipment to cover said installation or attachment.  Any components subsequently attached must be approved components previously tested by the Company or installation of such components will void the Extended Warranty to the entire Equipment unit.  This Extended Warranty does not include any minor adjustments or preparation associated with making the Equipment operational after receipt of shipment.

 

4.4 Damage to the Equipment incurred during shipment must be reported to the terminating carrier by the Original Purchaser or her/his/its consignee and a claim filed with said carrier. No claims for freight damage should be filed with the Company, as a warranty claim or otherwise.  This Extended Warranty contained herein SHALL NOT APPLY or be deemed to place any liability on the Company for any labor or additional material costs in repairing or replacing Equipment components or parts covered by the Extended Warranty.

 

Exhibit A

Terms and Conditions for Professional Services 

(Vanguard Scientific Systems, Inc.)

 

1. DEFINITIONS.  Capitalized terms not otherwise defined have the following meanings:

 

1.1 "Affiliate" means, as to either Party, any corporation or other present or future entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with that Party, where the term "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.

1.2 “Agreement” means the agreement to which these Terms and Conditions for Professional Services are attached and includes these Terms and Conditions for Professional Services.

1.3 "Applicable Laws" means all applicable, whether now in existence or future, statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, foreign, or local government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction, in all cases as each may be amended from time to time.

1.4 “Company” means Vanguard Scientific Systems, Inc., a Delaware corporation.

1.5 "Confidential Information" means all confidential and proprietary information disclosed by one party  (as such the "Disclosing Party") to the other Party (as such the "Receiving Party"), including the terms of the Agreement, research, business plans, customer information, product designs, financial information and pricing, financial forecasts, information regarding existing and future technical, business and marketing plans and product strategies, the fact that a financial relationship exists between the Parties and the terms thereof, and the identity of and information regarding actual and potential lenders, investors, customers and suppliers, whether disclosed before, on or after the effective date of the Agreement.  Confidential Information may be written, oral, recorded, or contained on tape or on other electronic or mechanical media and does not need to be marked as "confidential" or "proprietary."    

1.6 “Customer” means the entity receiving Professional Services from Company under the Agreement.

1.7 “Effective Date” means the date the Customer accepts and signs (electronically or otherwise) the Proposal.

 

1.8 "Intellectual Property Rights" means all of Company's (i) patents, patent disclosures and inventions (whether patentable or not); (ii) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all the goodwill associated therewith; (iii) copyrights and copyrightable works; (iv) trade secrets, know-how, and other confidential information; and (v) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

 

1.9 “Party” means either Company or Customer; “Parties” means Company and Customer together.

 

1.10 “Professional Services” means the managed services provided by the Company to the Customer and as described in the Proposal.

1.11 "Representatives" means as to either Party, the Party's Affiliates and its and its Affiliates' officers, directors, members, employees, agents, representatives, successors and assigns.

1.12 “Terms and Conditions” shall mean these Terms and Conditions for Professional Services.

 

2. PROPOSAL.

The Company shall issue a written proposal (the “Proposal”) to the Customer providing for the Professional Services to be provided by the Company and/or the Company’s Affiliate.  The Proposal shall provide as much detail as possible regarding the Professional Services to be provided by the Company and/or the Company’s affiliate, including, but not limited to, a description of the Professional Services to be provided to the Customer, the deliverables resulting from such Professional Services and the cost for such Professional Services (the “Professional Services Fee”).  By counter-signing the Proposal, Customer agrees that: (i) the Professional Services are and will be subject to these Terms and Conditions and the Proposal that has been accepted by you; and (ii) that any additional or conflicting terms in any of your documents, will be disregarded and these Terms and Conditions shall control and prevail.  These Terms and Conditions shall be included as part of the Proposal by reference and/or attachment to the Proposal.  Any changes to the terms of an executed Proposal must be made using the Company's change order form signed by both Customer and Company.

 

3. TERMINATION.  

3.1 Either Party may terminate the Agreement upon written notice to the other Party if the other Party (i) is in material breach of the Agreement if such breach is not cured, if curable, within 10 days after the non-breaching Party's notice of breach to the breaching Party; (ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (iii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iv) seeks reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, or other relief with respect to it or its debts; (v) makes or seeks to make a general assignment for the benefit of its creditors; or (vi) applies for or has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.  

3.2 In addition, the Company may terminate the Agreement at any time upon thirty (30) days prior written notice to Customer if Company will no longer provide the Professional Services as part of the Company’s regular business operations.  Unless otherwise provided in the Agreement, the Agreement and these Terms and Conditions terminate when the Professional Services are complete as provided in the Proposal.

3.3 Any notice of termination under the Agreement operates as a cancellation of any orders and any provision of Professional Services that are scheduled to be made after the effective date of termination, unless the Parties agree otherwise in writing.  Promptly after the expiration or termination of the Agreement, each Party must promptly return or destroy all documents and tangible materials and any copies thereof containing, reflecting, incorporating or based on the other Party's Confidential Information.  Regardless of which Party terminates the Agreement, Customer shall pay for all Professional Services received prior to the date of termination.

4. CUSTOMER OBLIGATIONS.

Customer shall: (i) designate one of its employees to serve as its primary contact with respect to the Agreement (the "Contract Representative") and require that the Contract Representative respond promptly to any reasonable requests from Company for instructions, information, or approvals required by Company to provide the Professional Services and (ii) cooperate with Company in its obligations under the Agreement.

5. PRICE.

Except as otherwise provided herein, all prices and Professional Services Fees provided in the Proposal shall be valid for a period of 180 days from the Effective Date.  The Professional Services Fee does not include delivery costs, tariffs or duties, or any taxes such as sales, use, excise or value added taxes, or any other similar charges incurred in association with the Professional Services; provided that, Customer will not be responsible for any taxes imposed on, or with respect to, Company’s income, revenues, gross receipts, personnel or real or personal property or other assets.  

 

6. PAYMENT TERMS.

6.1 Non-Retainer Based Professional Services. Unless otherwise stated in the Proposal, Customer will pay to Company the following amounts for all Non-Retainer based Professional Services: (i) a non-refundable down payment of seventy percent (70%) of the Professional Services Fee within five (5) calendar days after the Effective Date; (ii) the remaining thirty percent (30%) balance of the Professional Services Fee sixty (60) calendar days after the Effective Date; or when the Professional Services are completed as provided in the Proposal, whichever is sooner.

6.2 Retainer Based Professional Services. Unless otherwise stated in the Proposal, retainer based Professional Services will require full payment (100%) of the Professional Services Fee within five (5) calendar days after the Effective Date. The full amount of the Professional Services Fee is non-refundable.  The Company shall provide the Professional Services as provided in the Proposal and the Customer will receive monthly statements providing the amount of the Professional Services Fee applied to Professional Services for the month and the remaining unapplied balance of the Professional Services Fee.  Upon full application of the Professional Services Fee, Customer will have the option to add-on Professional Services and increase the total Professional Services Fee or to terminate the Agreement and Professional Services.  If applicable, Customer will be responsible for all applicable taxes, including sales tax, use tax, or property tax, and certain service charges (see _________ Addendum), which may be invoiced after the Professional Services are complete.  Unless otherwise agreed between the Parties in writing, all payments are due and payable on Customer's receipt of an invoice from Company.

6.3 All payments must be made in U.S. dollars without deduction or offset.  Except as otherwise specifically provided in these Terms and Conditions, any payment owed by the Customer to the Company hereunder is due within 30 days after Customer’s receipt of Company’s invoice.  Invoices paid after the 30-day period bear interest at a rate of 1.5 percent per month from the date due, calculated daily and compounded monthly, as well as a late fee of $50 per late invoice.   Customer shall pay all of Company's reasonable expenses necessary for collection of any past due amounts, including but not limited to, attorneys' fees and expenses.   

7. DISCLAIMER AND LIMITATION OF LIABILITY

COMPANY'S TOTAL LIABILITY TO CUSTOMER AND ITS AFFILIATES OR ANY THIRD PARTIES FOR ANY CLAIMS, LOSSES, COSTS, OR DAMAGES WHATSOEVER ARISING OUT OF, RESULTING FROM OR IN ANY WAY RELATED TO THE PROFESSIONAL SERVICES WILL NOT EXCEED THE AGGREGATE PAYMENTS COMPANY HAS RECEIVED FROM CUSTOMER FOR THE PROFESSIONAL SERVICES GIVING RISE TO THE CLAIM OR THE TOTAL INSURANCE COVERAGE LIMITS AVAILABLE AND PAID FROM THE COMPANY AND/OR ITS SUBCONTRACTOR(S) OR VENDOR(S) WITH RESPECT TO THE CLAIM, WHICH EVER IS GREATER.  IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND, OR FOR ANY CLAIM FILED MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE.  

8. DELAYS; FORCE MAJEURE.

Performance dates provided in the Proposal are approximate.  The Company's performance of any of its obligations will be extended to the extent those obligations are delayed by acts or circumstances beyond the reasonable control of Company, including, but not limited to, delays caused by reason of fire, flood, sabotage, war, riot, strike, labor dispute, natural disaster, material shortages, power failure, machinery breakdowns, delay of carriers, acts of terrorism US or relevant international government emergency declarations (including government shutdowns of business operations, pandemic or epidemic related closures declared by relevant government authority with jurisdiction over the Company,) or any other unforeseeable event beyond each party’s reasonable control. 

9. COMPLIANCE WITH LAWS.

The Parties shall perform their obligations under the Agreement in compliance with all Applicable Laws.  Each Party shall, at its own expense, obtain and maintain all required certifications, credentials, licenses and permits necessary in connection with the Professional Services under Applicable Law.  Neither Party shall take any action, or fail to take any action, that will cause, or that would reasonably likely cause, the other Party or its Affiliates to be in violation of any Applicable Laws.

10. CONFIDENTIALITY.

Each Party agrees to (i) hold the other Party's Confidential Information in strict confidence and not to disclose the Confidential Information to any third party, except as authorized by the Agreement; (ii) protect and safeguard the confidentiality of the Confidential Information with at least the same degree of care as it would protect its own confidential or proprietary information, but in no event with less than a commercially reasonable degree of care; (iii) not use the Confidential Information for any purpose except as necessary to facilitate the performance of its obligations under the Agreement; and (iv) only disclose Confidential Information to any of its Representatives on a "need to know" basis and who are subject to a written agreement or duty of confidentiality consistent with this section of the Agreement.  Notwithstanding the foregoing, the term Confidential Information does not include, and the duty of confidentiality under the Agreement does not apply to, information that the Receiving Party can show (a) is or becomes publicly known through no breach of the Agreement or other wrongful act or omission of the Receiving Party or its Representatives; (b) was rightfully received by the Receiving Party or its Representatives from a third party authorized to make such disclosure and not as a result of the breach of any applicable confidentiality obligation; (c) was independently developed by the Receiving Party or its Representatives without the use of or reliance on the Confidential Information; or (d) was already known by the Receiving Party or its Representatives without breaching any obligation of confidentiality.  

11. REPRESENTATIONS AND WARRANTIES.

The Company represents and warrants that the Professional Services provided under this Agreement shall be performed and completed in accordance with the degree of skill and care ordinarily exercised by other contractors in this industry and profession.  Each Party represents and warrants to the other that (i) such Party is legally free to enter into the Agreement and is authorized to execute the Agreement; (ii) the Agreement is a valid, legally binding and enforceable obligation of such Party and (iii) such Party's obligations under the Agreement and the Terms and Conditions and conditions of the Agreement do not conflict with or violate any terms or conditions of any other agreement or commitment to which such Party may be bound.

12. INDEMNIFICATION.

Except to the extent caused by Customer's negligence, intentional misconduct or willful misconduct, the Company shall indemnify, defend and hold Customer harmless against any and all losses, damages, liabilities, claims, actions, judgments, settlements, costs or expenses of any kind, including attorneys' fees (collectively, "Losses"), incurred by the Customer arising out of or occurring in connection with the Company's negligence, intentional misconduct or material breach of the Agreement.  

13. INSURANCE.

13.1 Company Insurance. The Company maintains and carries, in full force and effect: (i) errors and omissions coverage in an amount of $1 million dollars for advisory services related to biomass extraction and processing; and (ii) Product and Liability Insurance for the Midas System with an aggregate coverage of $5 million dollars and $3 million per occurrence.

13.2 Customer Insurance. During the Term, Customer shall, at its own expense, maintain and carry in full force and effect commercial general liability insurance (including product liability) in an amount of at least one million dollars or as otherwise required by Applicable Law with one or more financially sound insurers licensed to conduct business in the state(s) and countries where Customer conducts business.  Each such policy shall name Company and its Affiliates as additional insureds.  On or before the effective date of the Agreement, Customer shall provide Company with insurance certificates evidencing such coverage.  Except where prohibited by Applicable Law, Customer shall require its insurers to waive all rights of subrogation against the Company, its Affiliates and their insurers.  

14. NO FRANCHISE OR EMPLOYMENT AGREEMENT. Customer and Company are independent contractors and nothing in the Agreement creates a joint venture, partnership, agency relationship, or franchise between the Parties, and nothing in the Agreement is intended to operate or be construed to create an employment relationship between the Parties. 

15. BINDING ARBITRATION.

Both Parties agree that all claims, controversies or disputes, whether they be statutory claims (including claims arising under federal, state, or local statutory claims), or common law claims in contract and/or tort which arise out of or are related in any way to the relationship or breach of obligations arising out of the relationship between the Parties shall be resolved through binding arbitration in accordance with the procedures specified herein.  Any dispute, controversy, or claim arising out of or relating to this Agreement will be settled by arbitration.  Unless the Parties otherwise agree, the arbitration will be administered by the Arbitration Service of Portland, Inc.  Judgment on the award rendered by the arbitrator may be entered in the circuit court in the county in which the arbitration occurs, and the resolution of the disputed matter as determined by the arbitrator will be binding on the Parties.  There will be one arbitrator who will be a business lawyer or will have such alternate qualifications that are mutually agreeable to the Parties.  Any arbitration will be conducted in Multnomah County, Oregon, and in accordance with the following provisions:

 

15.1 Except as otherwise provided in this Section 15, the arbitration will be conducted in accordance with the rules of the Arbitration Service of Portland, Inc.

 

15.2 Arbitration proceedings under this Agreement may be consolidated with arbitration proceedings pending between other Parties if the arbitration proceedings arise out of the same transaction or relate to the same subject matter.  Consolidation will be by order of the arbitrator in any of the pending cases or, if the arbitrator fails to make such an order, the Parties may apply to any court of competent jurisdiction for such an order.

 

15.3 A Party may, without inconsistency with this Agreement, seek from a court any interim or provisional relief that may be necessary to protect the rights or property of that Party pending the establishment of the arbitration (or pending the arbitrator’s determination of the merits of the dispute, controversy, or claim).

15.4 The arbitrator will have authority to issue preliminary and other equitable relief.

 

15.5 Discovery proceedings of the type provided by the Oregon Rules of Civil Procedure will be permitted both in advance of and during recesses of the arbitration hearings. Any dispute relating to such discovery will be resolved by the arbitrator. The arbitrator will have the discretion to order a prehearing exchange of information by the Parties and an exchange of summaries of testimony of proposed witnesses.

 

15.6 The arbitrator will have the authority to award any remedy or relief that an Oregon court could order or grant, including specific performance of any obligation created under this Agreement, the issuance of an injunction, or the imposition of sanctions for abuse or frustration of the arbitration process, except that the arbitrator will not have authority to award punitive damages or any other amount for the purpose of imposing a penalty as opposed to compensating for actual damage suffered or loss incurred.

 

15.7 The award will be in writing, will be signed by the arbitrator, and will include a statement regarding the disposition of any claim. The award will be kept confidential to the fullest extent permitted by law.

 

16. CONDITION OF PREMISES.

Customer agrees that in the course of receiving the Professional Services, it shall be solely responsible for inspecting any area in which Professional Services are to be performed, for ensuring the safety of persons and property at and around the job site (including, without limitation, the safety of the Company’s employees, subcontractors and vendors, and any other persons at or near the premises), and for taking all precautions in order to prevent damage, illness or injury to persons or property.  Without limiting the foregoing, Customer shall be solely responsible for any injury or illness to persons and for any damage which results from the performance of Professional Services of the Company, including but not limited to damage to Customer’s or the Company’s property, or property of third parties, but excluding any injuries or damage caused by the Company’s negligence or intentional misconduct.

17. GENERAL PROVISIONS. 

Sections 7, 10, and 12 survive the termination or expiration of the Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination.  EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THE AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.  The Agreement and any action related to it will be governed and interpreted by and under the law of the State of Oregon, without giving effect to any principles that provide for the application of the law of another jurisdiction.  The exclusive venue and jurisdiction for any and all disputes, claims, and controversies arising from or relating to the Agreement will be the state and federal courts located in Marion County, Oregon.  If either Party brings an action or proceeding to enforce the Agreement, the prevailing party will be entitled to an award of reasonable attorney fees and costs incurred, including on any appeal.  Neither Party may assign its rights or obligations under the Agreement (including by merger or by operation of law) without the prior written consent of the other Party, which consent may not be unreasonably withheld.  Notwithstanding the forgoing, all of the terms, covenants and conditions of this Agreement will be binding upon and inure to the benefit of and be enforceable by the Parties and their respective successors, heirs, executors and permitted assigns.  Any waiver or failure by either Party to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.  If any provision of the Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of the Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.  No amendment to or modification of Agreement is effective unless it is in writing and signed by an authorized representative of each Party.  All notices, agreements and other communications required by the Agreement must be in writing.  Unless otherwise set out in the Agreement, notices must be given by personal delivery; a nationally-recognized, next-day courier service; or first-class registered or certified mail, postage prepaid.  E-mail notice is also acceptable so long as sender receives an e-mail response from the notified Party informing sender of receipt.