Prototek IQ's Terms of Purchase for the Instant Quoting Platform

Prototek Terms and Conditions of Sale 

 NOTICE: ACCESS AND USE OF THIS WEBSITE (THE “SITE”) AND ITS RELATED SERVICES (THE “SERVICES”) ARE PROVIDED BY PROTOTEK DIGITAL MANUFACTURING (CONCORD) LLC, A NEW HAMPSHIRE LIMITED LIABILITY COMPANY (“PROTOTEK”) TO THE BUYER (“BUYER”) ON THE CONDITION THAT BUYER ACCEPTS THESE TERMS AND CONDITIONS OF SALE (“TERMS”). BY ACCESSING OR USING THIS SITE OR THE SERVICES, INCLUDING CREATING AN ACCOUNT (AS DEFINED BELOW), BUYER AGREES TO THESE TERMS OF USE. IF BUYER DOES NOT AGREE TO ACCEPT AND ABIDE BY THESE TERMS BUYER MUST NOT ACCESS OR USE THIS SITE OR THE SERVICES. IF AN INDIVIDUAL ACCEPTS OR AGREES TO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS AND WARRANTS THAT IT HAS THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY TO THESE TERMS AND, IN SUCH EVENT, “BUYER” WILL REFER AND APPLY TO THAT COMPANY OR OTHER LEGAL ENTITY. BUYER AGREES TO BE BOUND BY, AND FULLY COMPLY WITH, THESE TERMS. BUYER REPRESENTS AND WARRANTS THAT IT HAS ALL NECESSARY RIGHT, POWER, AND AUTHORITY TO PERFORM AND OTHERWISE DISCHARGE ALL OF ITS OBLIGATIONS HEREUNDER. 

ALL TRANSACTIONS BETWEEN PROTOTEK OR ANY OF ITS SUBSIDIARIES OR AFFILIATES (COLLECTIVELY, THE “SELLER”) AND BUYER, AND ALL DOCUMENTS PERTAINING TO SUCH TRANSACTIONS, ARE SUBJECT TO AND CONDITIONED UPON THESE TERMS AND THESE TERMS ARE INCORPORATED BY REFERENCE INTO AND ARE A PART OF ALL TRANSACTIONS BETWEEN SELLER AND BUYER. NO TERM CONTAINED IN ANY BUYER CORRESPONDENCE OR ANY SALES DOCUMENTS ISSUED BY BUYER, OTHER THAN BUYER’S ACCEPTANCE OF THESE TERMS, SHALL BECOME A PART OF THE TRANSACTION BETWEEN THE PARTIES OR BIND SELLER. 

 

1.  Contract for the Sale of Products 

A.  “Sales Documents” include any quotation, proposal, statement of work, service request, purchase order, and order confirmation, order acceptance and invoice issued in writing (including via email or electronically) by an authorized representative of Seller. Buyer’s purchase of products and any other goods sold by Seller (collectively, “Products”), and any services Seller provides, will be governed solely by these Terms and any applicable Sales Documents issued by Seller in connection with such Products and services (collectively, a “Contract”).  In no event will Buyer’s terms in any purchase order, service request, commercial document, website, communication or otherwise apply to, nor will Buyer’s proposed additional or different terms modify a Contract unless Seller expressly accepts Buyer’s specific terms in writing by including such specific terms in a Contract.  Seller hereby objects to and rejects any additional or different terms or conditions proposed by Buyer or contained in any purchase order, statement of work, service request, commercial document, Buyer’s website or other correspondence from Buyer, regardless of any knowledge Seller may have of such terms, and such terms will not bind Seller or be applicable to the transaction (even if Buyer’s purchase order is referenced in the Sales Documents).  If any of these Terms conflict with the Sales Documents, the specific terms in the applicable Sales Documents will prevail over these Terms to the extent of such conflict.  The applicable terms of any revised or later Sales Document will control over such terms in a prior, similar Sales Document.  No other terms or changes, modifications, amendments or waivers of any terms in a Contract will apply to Seller unless in writing and signed by an authorized representative of Seller. No revisions to a Contract or these Terms shall be valid unless in writing and signed by an authorized representative of the Seller. 

B.  Seller reserves the right to manufacture the Products included in a purchase order in any one of its or its affiliates’ facilities (by itself or by an affiliate), or through approved suppliers in order to meet Buyer requested manufacturing requirements and delivery dates. 

C.  Seller is not required to manufacture Products to end user requirements, flow down requirements, quality requirements, material requirements, International Trafficking in Arms Regulation (ITAR), Export Administration Regulations (EAR), National Aerospace and Defense Contractors Accreditation Program (NADCAP), or other regulatory conditions unless such requirements or conditions are expressly made part of a Contract pursuant to Section 1.a herein. Notwithstanding the foregoing, Seller shall not accept orders for any defense-related Products via the Site and Buyer acknowledges and agrees that it shall not submit orders for defense-related Products via the Site. If Buyer wishes to order defense-related Products, it shall first submit an initial inquiry to Seller directly via phone or email; such inquiry shall exclude any actual or potentially sensitive, confidential, or proprietary information about such defense-related Products. Thereafter, all transmissions and any formal purchase orders related to such defense-related Products must be submitted by Buyer to Seller using a secure file transfer system specified or agreed to by Seller. Defense-related Products shall include any products that are intended for use by any military or intelligence service, or are considered “dual-use”, including, without limitation, products that include those that contain controlled unclassified information (CUI) or are subject to the EAR (other than EAR99), ITAR or other similar export-control laws.   

2.  Orders. Once Buyer has submitted a purchase order request via the Site, the status of the purchase order will change to “Seller Review.” Buyer is able to cancel a purchase order during the “Seller Review” and “Payment Required” statuses before payment is made; provided, however, that if Buyer is approved for a sale on credit, it may only cancel a purchase order if Seller has not commenced work on the Order. After Buyer submits a purchase order request, Seller may, but is under no obligation to, return an offer (an “Order Response”) to sell the requested Products upon the terms and conditions set forth in the Order Response. Upon receipt of an Order Response, Buyer may, but is not required to, accept the Order Response by submitting a purchase order on the Site. If after Buyer submits a purchase order, but before Seller accepts it, there is a price change that would increase the price Buyer would have to pay compared to what was included in the Order Response, then Seller will provide an automated email notification from [email protected] to Buyer which indicates a change or comment has occurred, and if Buyer still wishes to purchase the Products at such price, it must accept the increased price via the Site. If Buyer desires to cancel a purchase order after payment has been made, it must send a message to Seller on the Site indicating such intent, or contact [email protected] for assistance. If a cancellation request is granted by Seller, Buyer will be responsible for any cancellation fees associated with the cancelled purchase order. 

3. Acceptance. Seller will accept a purchase order by advancing the purchase order to the “Payment Required” status, and Buyer will receive an automated email notification from [email protected] indicating a change or comment has occurred. Seller reserves the right, in its sole discretion, to reject any purchase order, whether expressly in writing or by declining to advance the purchase order to the “Payment Required” status.  

4. Cancellation. Once Seller accepts a purchase order, Buyer may not cancel and must accept delivery of conforming Products subject to the rights and obligations set forth in a Contract. If Buyer refuses delivery of conforming Products, it shall be liable for the full contract price and any other costs (including costs of collections and interest as set forth in Section 11 herein), damages, lost business opportunity, and lost profits incurred by the Seller caused in any part, or otherwise related to, or arising out of the Buyer’s refusal to accept delivery. 

 5.  Buyer Accounts. In order to access and use certain of the Services available on this Site, Seller must sign up for, open, and maintain a registered user account on the Site (an “Account”). Only users who have registered for an Account may buy Products through the Site.  

Buyer will be required to confirm its acceptance of all of the terms and conditions of these Terms prior to completing the signup process for its Account. If Buyer does not agree to these Terms, Buyer may not sign up for an Account. 

During the registration process, Seller may collect information from Buyer, including its name, address, email address, phone number, credit card or other payment information, username, and password. Buyer information may be used by Seller in connection with the Services or Buyer’s use of the Site:  

• to verify Buyer’s eligibility to create and to maintain Buyer’s Account; 

• to ensure that Buyer’s Account is unique; 

• to enable Seller to provide certain security and privacy safeguards; 

• to deal with security, debugging and technical support issues; 

• for billing and payment-related issues; 

• to protect Seller and others, including other users, from abuse; 

• to conduct a criminal or other background check in relation to Buyer; or 

• to comply with applicable laws. 

All of the information Buyer provides to Seller or that Seller collects from Buyer in connection with Buyer’s use of the Site or the Services will be governed by these Terms. Buyer agree at all times to: (i) provide accurate, current, and complete information about Buyer as prompted by Seller’s registration form or otherwise; and (ii) maintain and update Buyer information (including Buyer’s email address) to keep it accurate, current, and complete. Buyer acknowledges that if any information provided by Buyer is untrue, inaccurate, not current, or incomplete, Seller may suspend or terminate Buyer’s Account and Buyer’s ability to use this Site or the Services. Buyer is responsible for the contents of its purchase order requests and purchase orders. Seller will not be responsible or liable for the contents of any purchase order requests or purchase orders, or any other text, graphics, images, music, software, audio, video, information, or other materials (collectively, “Content”) uploaded to or transferred via the Site or Services by Buyer, or for any damages resulting from the same. 

Buyer must not choose a username that infringes the rights of any third party, impersonates any Seller employee, other user, celebrity, or any famous person or entity, which is deliberately confusing or which is offensive, racist, obscene, hurtful, unlawful, or otherwise inappropriate. Buyer agrees that it will not use misspellings or alternative spellings or take any other actions for the purpose of circumventing the foregoing restrictions. Buyer understands and agrees that, in addition to the foregoing restrictions, Seller reserve the right to change, remove, alter, or delete any username at any time and for any reason in its sole discretion. 

Buyer is entirely responsible for maintaining the confidentiality of its username and password and for any and all activities (including purchases, sales, and charges, as applicable) that are conducted through its Account. Buyer cannot sell or transfer its Account to any other person, or permit anyone else to use it. Buyer agrees to notify Seller immediately of any unauthorized use, theft, or misappropriation of its Account, username, or password. Seller shall not be liable for any loss that Buyer incurs as a result of someone else using Buyer’s Account, username, or password, either with or without Buyer’s knowledge. 

6.  Delivery. 

 A.  Any shipping or delivery date, quotation, forecast, commitment, or lead time is only an estimate and Seller will not be liable for any delay or failure to deliver all or any part of any order for any reason. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of the quantity purchased. Seller will not be liable, and its performance (and delivery dates and delivery periods) will be deemed extended, for any delays or failure to perform directly or indirectly resulting from events and causes beyond Seller’s or its suppliers’ or subcontractors’ reasonable control (each, a “Force Majeure Event”). Force Majeure Events include: accidents; acts of God; lack, failure or disturbance of production or transportation facilities; fires and natural calamities (including floods, earthquakes, storms, pandemics and epidemics); shortage of, or the failure of a supplier to supply to Seller, Products or materials; delay or inability to secure Products, materials, fuel, supplies, equipment, power or utilities at reasonable prices or in sufficient amounts through usual sources of supply; labor shortages; strikes, lockouts or other labor disputes; acts and omissions of governmental authority; any amended or new law, regulation or order of a governmental authority; declared or undeclared wars; terrorism; cyberattacks (including ransomware) or explosions. During any Force Majeure Event: (a) Seller is not obligated to purchase Products or materials from other sources to enable it to fulfill any purchase order from Buyer; and (b) Seller has the right to allocate its available Products among its customers, including those not under contract, in any manner without liability. On time delivery could be changed due to lack of customer response on technical questions, model/print discrepancies (see Section 6.b) revisions, and/or payment terms including credit hold. Credit hold will take the order out of production and restart the lead time once the issue is resolved. Complete customer Specifications are required to meet any delivery dates specified in the purchase order. Revisions, ECOs, or design changes submitted after estimates and/or order, are subject to being requoted and will affect lead times. Any revisions, ECOs, or design changes once the order has placed are subject to charges for work in progress.  

B.  The quantity of any installment of Products as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. Seller shall not be liable for any non-delivery of Products (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within seven (7) days of the earlier of (1) the delivery date set forth on the purchase order, (2) the date the Buyer gains actual knowledge of the non-delivery, or (3) the date that a reasonable Buyer would expect delivery in the ordinary course of events. Any liability of Seller for non-delivery of the Products shall be limited to delivering the Products within a reasonable time of receiving notice of the non-delivery or adjusting the invoice respecting such Products to reflect the actual quantity delivered, whichever the Seller elects in its sole and exclusive discretion. Seller shall not be liable for any non-delivery resulting from inadequate, or unreasonable communication or instruction from Buyer. 

 C.  Buyer will be charged for materials, labor, and freight charges required to build and ship customer crates/containers required for shipment of Products requiring large custom crates. These charges may not be available at time of quoting. 

D.  All deliveries of Products will be EXW (Incoterms 2020) at Seller’s facility.  

7.  Inspection and Rejection 

A.  The Buyer shall have fourteen (14) days from the date of delivery to inspect the Products and to notify the Seller if any Products delivered are rejected. The Buyer may only reject Products if the Products delivered are different than those identified in the purchase order or fail to conform to the Limited Warranty set forth in Section 8 (“Nonconforming Products”). Any notice of rejection shall be made in writing and sent via email to Customer Service at [email protected] and shall specify the quantity of the rejected Products and the basis for the Buyer’s belief that the rejected items are Nonconforming Products. The Buyer shall be deemed to accept the Products if the notice of rejection is not made in the time stated above. 

B.  Buyer may not reject any Products because of Seller’s failure to manufacture Products to end user requirements, flow down requirements, quality requirements, material requirements, EAR, ITAR, NADCAP, or other regulatory conditions unless such requirements or conditions are expressly made part of the applicable order pursuant to Section 1.a-b herein. 

C.  If Buyer properly notifies Seller of any Nonconforming Products, Buyer’s sole and exclusive remedy, will be, at Seller’s choice, in its sole discretion and within a reasonable time to: (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the price for such Nonconforming Products. If requested by Seller, Buyer shall ship the Nonconforming Products DDP (Incoterms 2020) to Seller’s facility. If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Buyer’s shipment of Nonconforming Products, deliver to Buyer, EXW (Incoterms 2020) at Seller’s facility, the replaced Products. 

 D.  Seller shall not be liable for any losses or damages arising from or related to Buyer- supplied materials, or non-conforming Products returned by Buyer. 

E.  Buyer acknowledges and agrees that the remedies set forth in this section are Buyer’s exclusive remedies for the delivery of Nonconforming Products. 

8. Limited Warranty 

A. Seller shall (i) manufacture Products to the design specifications provided by Buyer in the original purchase order and in accordance with any deviations approved by Seller and Buyer (“Specifications”), and (ii) when performing services, such services will be performed in a workmanlike manner. The warranties provided in this Section 8.a shall hereinafter be referred to as the “Limited Warranty”. Unless expressly stated otherwise in the Sales Documents, the Limited Warranty shall expire six (6) months after the delivery of a Product or five (5) days after Seller has performed Services (each, a “Warranty Period”). Seller has no obligation to manufacture to spec based on any other plans, models, prints, instructions, schematics, or other instructions however conveyed to Seller (collectively “Additional Specifications”), except to the extent they are consistent with the Specifications. To the extent rejection of Products is otherwise permissible and properly made pursuant to Section 7 of these Terms, Buyer may only reject Products for nonconformity with the Specifications and may not reject Products based on nonconformity with any Additional Specifications. The Limited Warranty extends to Buyer only, and not to any resale customer of Buyer or end consumer, and is non-transferable. In the event of a Product resale by Buyer, Buyer is solely responsible for any and all warranties and other claims resulting from Products and for any representations or warranties made by Buyer to its customers and any end-customers. Buyer will not refer to Seller or the Limited Warranty in any manner in connection with its resale of Products.  Buyer is solely responsible for proper selection of Products as well as for their intended use, application and processing, and Buyer has otherwise determined their suitability for Buyer’s intended use.  As such, Buyer should not rely on Seller to ensure that the Products purchased will meet any standards or specifications. 

B. The Limited Warranty does not cover: (a) accessories or peripherals not manufactured by Seller, which will be subject only to any transferable warranty the manufacturer of such product may issue; (b) damage to Products during or after delivery; (c) damage caused by normal wear and tear; (d) user error, including unsuitable or improper use; (e) use under circumstances or resale for uses exceeding Seller’s specifications or limitations or contrary to any instructions or information from Seller; (f) unauthorized use, or unauthorized or improper installation, repair, modification or alteration; (g) improper storage; (h) defects or failures of Products sold or services performed arising from, in whole or part, Buyer’s instructions, information, design, plans or other non-Seller specifications; (i) faulty or negligent treatment; (j) any warranties or representations given by Buyer on resale of Products or use of services; (k) repackaging or rebranding; (l) modification or alteration of Products or services; (m) abuse or accidents; (n) faulty assembly or commissioning by Buyer or third parties related to Buyer; (o) unsuitable operating equipment or media; (p) chemical, electrochemical or electrical influences;  (q) use of unsuitable working material; (r) damage caused by natural calamities; (s) service finish defects due to mishandling; or (t) product warping, color discoloration, surface finish defects, or color matching. 

C. Buyer must give Seller detailed written notice of any Products or services which Buyer alleges do not conform to the Limited Warranty, stating the alleged non-conformities (each, a “Warranty Claim”).  Any Warranty Claim must be made within fourteen (14) days after Buyer is aware of the alleged non-conformity and, in any event, within the Warranty Period.  The Limited Warranty expires when, and no claims may be made after, the Warranty Period ends.  Buyer will follow Seller’s then current Warranty Claims process.  At Seller’s request, Buyer will allow Seller access to the Products to inspect the Products and services evaluate the alleged non-conformity and, upon request of Seller, will return, at Buyer’s expense, any alleged non-conforming Product to a location designated by Seller for Seller to inspect the Products and evaluate  the alleged non-conformity.  For any Products that Seller determines do not conform to the Limited Warranty, Seller’s sole liability and obligation, and Buyer’s sole and exclusive remedy, will be, at Seller’s choice, in its sole discretion and within a reasonable time, to repair or replace such non-conforming Product, or to refund the purchase price for such non-conforming Product.   

 D. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 8.A OF THESE TERMS, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, STATUTORY OR OTHERWISE, REGARDING OR RELATING TO THE PRODUCTS AND ANY SERVICES, AND SELLER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS AND IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO PRODUCTS AND ANY SERVICES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. 

 9. Invoicing. Invoices shall be sent to Buyer within a reasonable time after the delivery of Products to Buyer at the address or email address included on the purchase order. 

 10. Payment. Payment terms are generally Net 30 days from Seller’s receipt of an invoice unless otherwise agreed between the parties in the Sales Documents. A finance charge of the lesser of the maximum amount allowed by law or 18% per annum compounded monthly shall be applied to any balance carried beyond the agreed-upon payment term. Credit limits and payment terms are awarded based on customer status, current credit history, and trade references on a case-by-case basis. First time customers may be subjected to pre-payment terms. If prepayment is required, Buyer may pay via credit card. Seller uses Stripe, a third-party payment platform, to perform all payment services on the Site, including processing, collecting, holding, and transferring payments for all orders. As a condition of Seller enabling payment processing services through Stripe, Buyer agrees to provide Seller accurate and complete information about you, including payment information, and it authorizes Seller to use it and disclose it to Stripe or other payment gateway providers for the purpose of processing the payments it authorizes through the Site. Under no circumstances will Seller be responsible: (i) for any charges that Stripe or Buyer’s credit card issuer may apply to Buyer as a result of Seller processing any order; (ii) if Stripe or Buyer’s card issuer refuses or fails to authorize payment by you; or (iii) for any delays or non-delivery of the order arising from any validation checks that may be carried out regarding Buyer’s payment or identification. 

 11. Costs of Collection & Fees for Attorneys. In the event the Buyer Fails to pay pursuant to Section 10, the Buyer shall be liable for the Seller’s legal fees and other costs of collection. 

 12. Representations and Warranties. By submitting a purchase order, the Buyer represents that it is fully authorized to enter into the transactions contemplated thereby and that its performance and obligations will not violate or infringe upon the rights of any third-party (including intellectual property rights) or violate any other agreement, or any law or governmental regulation. 

 13. Severability. In the event any provision of a Contract, including these Terms, is deemed invalid or unenforceable, in whole or in part, that part shall be severed from the remainder of the applicable Contract and all other provisions should continue in full force and effect as valid and enforceable. 

 14. Waiver. The failure by Seller to exercise any right, power or privilege under the terms of a Contract will not be construed as a waiver of any subsequent or further exercise of that right, power or privilege or the exercise of any other right, power or privilege. 

 15. Governing Law and Jurisdiction. Each Contract shall be governed by the laws of the State of New York, without regards to its conflict of laws principles. For any dispute arising out of or related to a Contract, the Buyer consents to the exclusive jurisdiction over the matter and its person by any court situated within New York County, State of New York, whether State or Federal. To the extent a court or arbitrator of competent jurisdiction determines that the laws of the State of New York cannot govern a Contract, such Contract shall be governed by the laws of the state where the Products were manufactured and venue shall be determined based on the county where the Products were manufactured, whether State or Federal.   

 16. Indemnification. Buyer agrees to indemnify and hold harmless Seller and its affiliates, and their respective officers, directors, employees and agents, from and against any and all claims, actions, suits, damages, liabilities, costs, obligations, and expenses (including attorneys’ fees and expenses) arising out of or relating to: (i) Buyer, its employees, contractors or agents, installation, setup, use of, incorporation of, modification of, or application of the Products alone or in conjunction with other products, or the services; (ii) any processing or modification of Products in any manner by Buyer, its employees, contractors, agents, or customers; (iii) claims regarding warnings or failure to warn of dangers related to Products or services; (iv) any violation or failure to comply with applicable laws and regulations, including those pertaining to health and/or safety; (v) any intentional or negligent act, or misrepresentation by Buyer, its employees, contractors or agents; (vi) any breach of warranty or misrepresentation (express or implied) made by Buyer, its employees, contractors  or agents; (vii) any violation, misappropriation, or infringement of any patent, trademark, copyright or other intellectual property rights of any person or entity arising out of or related to compliance with Buyer’s design, specifications or instructions or Buyer’s use of a Product with other goods or otherwise contained in any Content; (viii) use of a Product or services inconsistent with or exceeding Seller’s specifications, limitations or recommendations; (ix) any breach by Buyer of any terms of a Contract; (x) any personal injury or property damage arising out of Buyer’s or its employees, contractors or agents’ acts or omissions; (xi) unauthorized use or alteration of Products or (xii) any computer viruses, or other destructive, harmful, illegal or disruptive files or programs contained in Content provided by Buyer. At Seller’s request, Buyer shall also defend Seller and its affiliates, and their respective officers, directors, employees and agents at Buyer’s expense, against any such claims made against Seller or its affiliates, and their respective officers, directors, employees and agents. 

 17. Limitation of Liability. 

A. ELLER’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO ANY CONTRACT, OR PRODUCTS, OR SERVICES, OR THE USE (OR INABILITY TO USE) ANY PRODUCTS OR SERVICES, WHETHER IN WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE AMOUNT BUYER PAID TO SELLER FOR THE PARTICULAR PRODUCTS OR SERVICES AT ISSUE. 

B. IN NO EVENT WILL SELLER OR SELLER’S AFFILIATES BE  RESPONSIBLE FOR ANY LOSS, LIABILITY, INJURY OR DAMAGE ARISING OUT OF OR RELATING TO (I) BUYER’S DETERMINATION AS TO THE SUITABILITY OR FITNESS OF THE PRODUCTS OR SERVICES FOR A PARTICULAR PURPOSE, (II) THE USE OR APPLICATION OF THE PRODUCTS OR SERVICES, ALONE OR IN CONJUNCTION WITH OTHER PRODUCTS OR SERVICES, OR (III) THE NEGLIGENCE OR WILLFUL MISCONDUCT OF BUYER, OR (IV) FROM DEFECTS OR DEFICIENCIES IN BUYER’S OTHER EQUIPMENT.   

C. IN NO EVENT WILL SELLER OR SELLER’S AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, WHETHER ARISING FROM THE SALE OF THE PRODUCTS, THE APPLICATION AND/OR USE OF ANY PRODUCTS, ANY TRAINING, ANY SERVICES, ANY DEFECT IN THE PRODUCTS, ANY NON-CONFORMITY WITH WARRANTIES, ANY USE OR INABILITY TO USE THE PRODUCTS, OR OTHERWISE, REGARDLESS OF THE THEORY OF RECOVERY, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL SELLER OR SELLER’S AFFILIATES BE LIABLE FOR DAMAGES TO GOODS OR MATERIALS TREATED, COVERED, PROCESSED IN OR HANDLED WITH THE PRODUCTS OR SERVICES.  THESE TERMS CONTAIN BUYER’S SOLE AND EXCLUSIVE REMEDIES RELATING TO THESE TERMS, A BREACH OF THESE TERMS, A CONTRACT, OFFER TO SELL, OR THE PRODUCTS, OR SERVICES, REGARDLESS OF THE THEORY OF RECOVERY. 

 18. Export Controls. All sales of Products are subject to and conditioned upon Seller or its affiliates obtaining any necessary export control or import licenses for such Products (if applicable). Orders related to military, aerospace, or government contracts typically require ITAR, EAR (other than EAR99) or other export regulations. Seller may cancel the transaction with Buyer if it does not obtain any necessary licenses in order to export any Products from the country of origination or to import into the delivery point.  Exporting certain Products outside of the United States of America and European Community may be subject to export control laws.  Once the Products have been delivered to Buyer, Buyer is responsible for complying with all applicable export control laws and regulations, including obtaining any export licenses for the export of Products or information outside the United States of America.  If Buyer wishes for Seller to delay the delivery of Products until any necessary export or import licenses are obtained, then Buyer shall inform Seller as soon as practicable. Buyer will be responsible for any costs in connection with such delay.  

 19. Confidentiality; Intellectual Property; No License. Buyer may have access to certain proprietary and/or confidential information and to other property (including trademarks) owned or used by Seller and its affiliates, whether in oral, written, electronic or other form or media.  Buyer acknowledges and agrees that all such proprietary and/or confidential information and other property will remain the property of Seller and its affiliates and that, upon Seller’s request, Buyer shall return or destroy all proprietary and/or confidential information (in any and all forms) and shall return to Seller all such other property of Seller and its affiliates.  Buyer shall not, without Seller’s prior written consent (which consent may be withdrawn at any time), copy for any purpose or disclose to any third person, entity or organization any aspect of any such proprietary and/or confidential information, and will not use, except internally to perform its obligations under a Contract, any such proprietary and/or confidential information or other property of Seller or its affiliates. Without limiting the generality of the foregoing, the Site, Services and Content made available by Seller are owned and operated by Seller and may be protected by intellectual property laws, including laws relating to copyrights, trade-marks, trade-names, Internet domain names, notice and notice rights, and other similar rights applicable law. Certain words, phrases, names, titles, icons, graphics, designs, or logos used on the Site or Services may constitute trademarks, service marks, or trade names of Seller or other entities. Buyer acknowledges and agrees that the Site, Services and Content made available by Seller, including all associated intellectual property rights, are the exclusive property of Seller and its licensors. Buyer will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services, or Content made available by Seller.  

 20. Privacy. Seller is committed to respecting the privacy of the personal information of the individuals with whom it interacts. Seller has developed a Privacy Policy (https://prototek.com/privacy-policy/) to describe its privacy policies and practices and its collects, uses, and discloses the personal information of those individuals who visit this Site or use the Services. Please see Seller’s Privacy Policy (https://prototek.com/privacy-policy/) for further details and contact information for Seller’s Privacy Officer. The Privacy Policy is a part of these Terms and incorporated herein by reference. 

 21. Insurance. Buyer will maintain commercial general liability, personal injury and property damage insurance policies, including wrongful death coverage, with a nationally recognized insurance company.  All such insurance policies will name Seller and its affiliates as additional insureds, and will require at least thirty (30) days prior written notice to Seller of any modification, cancellation or termination of any insurance policies.  Buyer will require its insurer(s) to waive all rights of subrogation against Seller, its affiliates and their insurers. Buyer will promptly deliver to Seller a certificate of insurance meeting the requirements listed in this section. In addition, upon request by Seller from time to time, Buyer will deliver to Seller a current certificate of insurance and a complete copy of the foregoing insurance policies. 

 22. General Code of Conduct. Seller may, without notice, suspend Buyer’s, or any other party’s, access to this Site or the Services by deactivating any Account, password(s), or links to the internet if Seller reasonably suspects that Buyer, or any other parties, are obtaining unauthorized access to Seller’s other systems or information or are using otherwise valid user identifications or passwords in any unauthorized manner. These suspensions will be for such periods of time as Seller may reasonably determine is necessary to permit the thorough investigation and mitigation of such suspended activity. 

While using this Site or the Services, Buyer agrees to comply with all applicable laws, rules, and regulations, including without limitation any laws governing the transmission of commercial electronic messages or similar. Seller reserves the right, in its sole discretion, to take any actions it deems necessary and appropriate to preserve the integrity of this Site and the Services. 

Buyer agrees not to use the Site or Services for anything that: 

 

• is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person, including other users; 

• is bigoted, hateful, or racially or otherwise offensive; 

• is violent, vulgar, obscene, pornographic or otherwise sexually explicit, or otherwise harms or can reasonably be expected to harm any person or entity; 

• is misleading, untruthful, or inaccurate; 

• is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them, including without limitation anything that is, or represents an attempt to engage in, child pornography, stalking, sexual assault, fraud, trafficking in obscene or stolen material, drug dealing and/or drug abuse, harassment, theft, or conspiracy to commit any criminal activity; or 

• infringes or violates any right of a third party including: (i) copyright, patent, trademark, trade secret, or other proprietary or contractual rights; (ii) rights of privacy (specifically, Buyer must not distribute another person’s personal information of any kind without their express permission), personality, or publicity; or (iii) any confidentiality obligation. 

In addition, Buyer agrees NOT to: 

• use the Site, Services, or Site content for any commercial or other purposes that are not expressly permitted by these Terms; 

• use the Site or Services to resell any products or services purchased on the Site or Services; 

• interfere with the security of, or otherwise abuse the Site, the Services or any system resources, services or networks connected to or accessible through this Site or the Services; 

• attempt, nor permit any third party to, enter restricted areas of Seller’s computer systems or perform functions that Seller is not authorized to perform; 

• use Seller’s Site, Services, or Site content in connection with the distribution of unsolicited commercial email (i.e. “spam”) or advertisements;  

• submit any purchase order or purchase order request with false or misleading information; or 

• use the Site or Services to purchase, agree to purchase, or request the manufacture of functional weapons from Seller; provided, however, this restriction does not prohibit Buyer from purchasing replicas of weapons, provided the same cannot be used, converted, or modified in any way to inflict damage or harm. 

Buyer acknowledges that Seller may remove, delete, or edit any post, information, or content provided by Buyer for any reason whatsoever, including non-compliance with the foregoing. Seller reserves the right to suspend, disable, or delete Buyer’s Account, with or without warning, due to a breach of these Terms. 

23. Linked Websites. This Site or the Services may provide links to third-party websites for Buyer’s convenience only. The inclusion of these links does not imply that Seller monitors or endorses these websites, or the content, products, or services on or available from such websites. Seller is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or the reliance upon any information, content, goods, or services available on or through any third-party websites or linked resources. 

 24. Internet Software or Computer Viruses. Seller is not responsible or liable for any software, computer viruses, or other destructive, harmful, or disruptive files or programs that may infect or otherwise impact Buyer’s use of its computer equipment or other property on account of Buyer’s access to, use of, or browsing on this Site or the Services or other content from this Site.  

 25. Waiver of Jury Trial. BUYER AND SELLER, AS BETWEEN THEM, 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 A CONTRACT, THE OFFER TO SELL, OR THE PRODUCTS DELIVERED PURSUANT THERETO. 

 26. Relationship. Seller is an independent contractor.  Nothing in a Contract will be construed as creating a partnership, association or joint venture between the parties.  Buyer will have no power or authority to enter into any commitment on behalf of or otherwise bind Seller on any matter including making any representation or warranty on behalf of Seller.  No employee of either party will be deemed to be an employee of the other party. 

 27. Miscellaneous.  A Contract contains the entire agreement and understanding of the parties relating to the subject matter and supersedes all previous and contemporaneous agreements, understandings, proposals, negotiations or discussions, usages of trade and courses of dealing, whether written or oral, between the parties.  A Contract will be binding on, and will inure to the benefit of, the parties and their respective successors, heirs and permitted assigns.  Buyer may not assign (including by operation of law) all or any portion of its rights or obligations under a Contract without Seller’s prior written consent, and any purported assignment without that consent will be void and of no effect.  No assignment will relieve Buyer of any obligations under a Contract.  Any consent, approval or agreement required or allowed by Seller may be given or withheld by Seller in its sole discretion and must be in writing and signed by an authorized representative of Seller to be effective.  No delay or failure by Seller to exercise or enforce any of its rights or remedies under a Contract will be construed as a waiver of such rights or remedies.  The express waiver of any right or remedy in a particular instance will not constitute a waiver of that right or remedy in any other instance.  If any provision of these Terms or any Sales Documents is held to be invalid, illegal or unenforceable by any court of competent jurisdiction, then such provision(s) will be deemed to be severable and these Terms and any Sales Documents will then be construed and enforced in accordance with the remaining provisions.  As used herein, the words “including”, “include” and “includes” will not be deemed to be limiting.  Any rights or obligations of Seller or Buyer that by their nature continue after the termination of a Contract, will survive the termination of a Contract for any reason. A Contract and these Terms (as they apply to a given Contract) may be amended or modified only by a written agreement, signed by both parties, expressly amending or modifying the applicable Contract or these Terms; provided, however, that Seller may revise, supplement, or delete any provision contained in these Terms on a going-forward basis and such changes shall apply to any Contract entered into after revision, supplementation or deletion. Seller may revise, supplement, or delete information, services, and/or the resources contained in this Site and the Services and reserves the right to make such changes without prior notification to past, current or prospective visitors. For the avoidance of doubt, Seller reserves the right at any time to change (i) this Site or the Services, including terminating, eliminating, supplementing, modifying, adding, or discontinuing any Content or feature or data or service on or available through this Site or the Services or the hours that they are available; (ii) any fees or charges, if any, related to the use of this Site or the Services; and (iii) the equipment, hardware, or software required to use and access this Site or the Services. Any changes that Seller makes to these Terms will be effective immediately upon notice, which Seller may provide by any means including, without limitation, posting on this Site. If the modified Terms are not acceptable to Buyer, Buyer’s only recourse is to cease using the Site and Services. Buyer’s continued use of this Site or the Services after such notice will be deemed acceptance of such changes. If Buyer wishes to Contact Seller regarding this Site, the Services, or these Terms, please contact Seller at [email protected]. 

 

Last updated November 2024.