Terms and Conditions

Terms and Conditions of Sale

Progranalog Corp.
Terms and Conditions of Sale

  1. “Customer” means the company that submits an Order to Seller. “Documentation” means all written material (whether in tangible, electronic or any other form) that Seller provides with or for the Products, including all Product safety notices, warnings, instructions and training materials, manuals, or similar materials.  “Includes” or “including” means includes or including without limitation.
    “Order” means a purchase order that Customer submits to Seller and that Seller accepts but only if and to the extent that purchase order is modified by these Terms.  “Product” means the Seller goods and services described in an Order.  “Terms” means these Terms and Conditions of Sale.  “Seller” means ProGrAnalog Corp.
  2. Orders; Entire Agreement. All Orders are subject to acceptance by Seller either in writing or by beginning performance, and that acceptance is expressly conditioned upon Customer’s agreement that its Order will be governed by these Terms.  These Terms take precedence over any terms and conditions in Customer’s Order or any of Customer’s other documents and supersede all prior agreements, express, implied, written or oral.
  3. Prices; Taxes. Prices for Products are subject to change without notice.  Products will be sold at the prices prevailing at the time of shipment.  The prices for Products set forth in any quotation, price list or other document are exclusive of transportation charges, tariffs, duties and sales, use, excise, value added and all other taxes, and Customer will pay those charges, tariffs, duties and taxes.
  4. Payment Terms. Payment for all Products sold on open account is due 30 days following the date of Seller’s invoice unless otherwise stated on the face of that invoice.  Any sums not paid when due are subject to a service charge of 1.5% per month or the maximum rate permitted by law, whichever is lower.  Seller’s invoices will be deemed accepted and conclusively binding upon Customer as an account stated, and will not be subject to any audit claim, unless Customer notifies Seller in writing within 10 days after the date of that invoice.
  5. Packaging; Shipping; Delivery; Risk of Loss. Unless Seller expressly agrees otherwise, all Products consisting of tangible goods are shipped Ex Works, Seller’s loading dock. Customer will bear all risk of loss and damage to those Products after Seller delivers them to the carrier at Seller’s loading dock, and Customer will submit all claims for damage or shortages to the responsible carrier.
  6. Inspection; Claims. Customer agrees to thoroughly and carefully inspect all goods and shipping papers promptly upon their arrival at the shipping destination.  No claim for shortages will be valid or enforceable against Seller unless Customer mails Seller written notice specifying the extent of the shortage within five business days from the date of the shipment arrives at the shipping destination accompanied by the original freight bill, with notation on its face by the authorized agent of the carrier as to the items and quantities claimed to be short.
  7. Customer will (a) cause each person who receives or uses a Product to read and comply with all safety instructions in the Documentation for that Product; (b) instruct the user in the proper use of the Product; and (c) implement and enforce the safety provisions of all Product safety notices, warnings, instructions or similar Documentation.
  8. Software License. To the extent any software is included with or embedded in a Product (“Software”), such Software is Seller’s proprietary property and is licensed, not sold, to Customer.  Customer will not use the Software except on or in conjunction with the Products.  Customer will not: (a) rent, lease, distribute, sell, sublicense, or transfer to any third party any Software, or all or any part of Customer’s right to access and use the Software; (b) reverse engineer, disassemble, decompile, modify, alter, merge, modify, adapt or create derivative works of the Software, or any applications associated with the foregoing; (c) copy, loan, rent, sublicense or otherwise transfer or provide access to the Software to any third party; (d) access or use the Software for unlawful purposes; (e) use the Software to compete, or aid others in competing, with the Software, Products, or Seller; or (f) permit anyone else to do any of the preceding.  Subject to full payment and Customer’s strict compliance with these Terms, Seller grants to Customer, the original purchaser, for the useful life of the related Product, a nonassignable, nonexclusive license to use the Software in the manner and subject to the restrictions in the Documentation provided with the Product.
  9. Seller is the exclusive owner of all rights in and to all patents, all patentable and unpatentable know-how, inventions, discoveries and improvements, all designs, drawings, other Documentation, other original works of authorship, all technical information, data and all other intellectual property rights in any way associated with the Products (collectively, the “Seller Intellectual Property”), and Seller reserves all rights with respect to the Seller Intellectual Property except those expressly granted to Customer in these Terms and the Documentation.
  10. Protections and Restrictions. Customer will not (a) use the Software, Documentation, Product or Seller Intellectual Property except as expressly provided in these Terms and in the Documentation, or (b) disclose them to any other person without the prior written consent of Seller. To protect the Seller Intellectual Property and to ensure that Seller knows to whom and where to send product safety notices and other product updates, Customer will not transfer any Product containing Seller Intellectual Property to anyone other than to one of Customer’s affiliates unless Customer first: (a) gives Seller written notice at least 30 days before the removal of the Product from Customer’s plant, including (i) the identity of the proposed transferee; (ii) if applicable, the location where the proposed transferee will install and use the Product; and (iii) the financial and other terms of the transfer; (b) gives Seller the opportunity to inspect the Product before it is removed from Customer’s plant; and (c) receives Seller’s express written consent to the transfer.  If the proposed transferee intends to use the Product in commercial production in the ordinary course of its business, any consent by Seller will include commercially reasonable terms under which Seller will permit the proposed transferee to use the Seller Intellectual Property.
  11. Laws, Codes, Regulations. Compliance with local, state and federal laws, codes, or regulations relating to environmental, public and user safety, training, Product use, maintenance and transportation is the sole responsibility of Customer.  Seller does not undertake or assume any of the responsibility or obligations of Customer for the safety of the workplace where the Product is used, whether that responsibility or those obligations are imposed by code, regulation, or judicial decision, and Seller makes no warranty or representations with respect thereto.
  12. Limited Warranty. Seller warrants to Customer only that, when used in strict accordance with all requirements, the Products will reasonably conform in all material respects with the applicable Documentation.  If the Product fails to conform to the foregoing warranty, Seller will use reasonable efforts to repair or replace the Product, provided that Customer (i) promptly notifies Seller of the non-compliance and complies with Seller’s RMA procedures, (ii) returns the Product in the same condition it was received (without tampering, damage, or mistreatment), and (iii) Seller is able to reproduce the proven non-compliance. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE FOREGOING WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM ARISING OUT OF A BREACH OF THE WARRANTY SET FORTH IN THIS SECTION.
  13. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, SELLER MAKES NO WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, REGARDING THE SUBJECT MATTER OF THESE TERMS, INCLUDING WITH RESPECT TO THE PRODUCTS, AND ALL WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, THE PRODUCTS ARE PROVIDED “AS IS.” CUSTOMER ASSUMES FULL RESPONSIBILITY FOR SELECTING AND USING THE PRODUCTS.
  14. Customer will indemnify, defend, and hold harmless Seller, its affiliates and their respective officers, directors, shareholders, employees and agents from and against all damages, liabilities, losses, penalties, claims, and attorneys’ fees asserted directly or indirectly by any third party arising out of Customer’s use of the Products, Customer’s violation of applicable law, Customer’s negligence or willful misconduct, or Customer’s violation of these Terms.  Customer will not settle any claim without Seller’s prior written consent unless that settlement includes a full and final release of all claims against Seller and does not impose any obligations on Seller.
  15. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL SELLER BE LIABLE UNDER ANY CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT OR CONSEQUENTIAL COSTS OR DAMAGES, INCLUDING LOST PROFITS, LITIGATION COSTS, LOSS OF PRODUCTION OR PROFIT, ARISING OUT OF OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THESE TERMS, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN.  IN NO EVENT WILL SELLER’S TOTAL LIABILITY UNDER OR RELATED TO THESE TERMS, THE TERMINATION THEREOF, AND/OR THE PRODUCTS, REGARDLESS OF THE FORM OF ACTION, EXCEED THE AMOUNTS ACTUALLY PAID TO SELLER UNDER THESE TERMS.
  16. A request to cancel or change an Order that has been received by Seller must be made in writing at least 30 days before the requested shipment date and is subject to Seller’s approval.  Seller manufactures Products to Customer’s specific needs, and therefore the Products have no value to Seller.  When Customer places an annual Order or other long-term supply Order, and/or schedules shipment and payment in installments, Seller may manufacture all those Products at anytime, and Customer will be liable for all Products that Customer orders, whether or not those Products have been delivered to Customer.
  17. Force Majeure. Seller will not be liable for failure or delay in filling any Order when due to an Act of God, war, mobilization, insurrection, rebellion, civil commotion, riot, act of an extremist or public enemy, sabotage, labor dispute, lockout, strike, explosion, fire, flood, storm, accident, drought, power failure, inability to obtain suitable and sufficient energy, labor or material, delay of carriers, embargo, any existing or future law, ordinance, rule or regulation, whether valid or invalid, of the federal or of any state or foreign government effecting the conduct of business, including priority, requisition, allocation or price control; or due to any other cause beyond Seller’s reasonable control, whether affecting procurement, production, transportation or any other phase related to an Order.
  18. Security Agreement; Remedies; Rights. To secure payment and performance of all of Customer’s current and future obligations to Seller, Customer grants to Seller a security interest in all Products that Customer has purchased or may at any time in the future purchase from Seller and in all proceeds of the Products (collectively, the “Collateral”).  If Customer defaults in any of its obligations to Seller, Customer will, at its sole cost and expense, assemble the Collateral and deliver that Collateral to Seller at any location in the United States reasonably requested by Seller.    If Customer fails to make any payment when due or defaults on any other obligation to Seller, or if Seller discovers that Customer is insolvent, Seller may, at Seller’s discretion, cancel any Order or any other agreement with Customer, cease manufacturing Products described in any Order, refuse to ship Products, stop delivery of Products in transit, reclaim any Products for which payment has not been made, and exercise all of Seller’s other rights and remedies.  Seller may at any time in its sole discretion immediately terminate Customer’s ability, if any, to purchase Products on credit or otherwise.
  19. Attorney Fees; Governing Law; Venue. Customer will pay all costs, collection agency commissions, expenses and reasonable attorney fees (prior to, at trial and on appeal) incurred by Seller in collecting the price for any Product.  The laws of Oregon, USA will govern, excluding (a) its choice of law rules; and (b) if Customer is a citizen of a county other than the United States, the Convention for the International Sale of Goods.  All disputes relating to these Terms or the Products will be tried in Oregon, and Customer will not initiate suit against Seller in any other place.
  20. Customer may not assign any Order without Seller’s prior written consent. Neither Customer nor Seller will export any Products except in compliance with applicable law, including the United States Export Administration Act of 1969, as amended, and the related regulations issued by the United States Department of Commerce.  If any provision of an Order is found to be invalid or unenforceable by a court of competent jurisdiction, that provision will be severed from the remainder of that Order, which will remain in full force and effect.  None of these Terms may be waived or modified (including by course of performance, course of dealing or usage of trade) unless that waiver or modification is in writing and is signed by the party to be bound.  So long as it does not add to or conflict with these Terms, Seller will be entitled to rely on any written or telephonic request or notice that appears to be from an employee or authorized agent of Customer.  These Terms supersede all prior and contemporaneous oral and written agreements and understandings that conflict or are inconsistent with the subject matter of these Terms.