Terms and Conditions of Purchase

Prototek Terms and Conditions of Sale

05/13/2024

NOTICE: ALL TRANSACTIONS BETWEEN PROTOTEK DIGITAL MANUFACTURING LLC, A DELAWARE LIMITED LIABILITY COMPANY OR ANY OF ITS SUBSIDIARIES (COLLECTIVELY, “SELLER”) AND BUYER (“BUYER”), AND ALL DOCUMENTS PERTAINING TO SUCH TRANSACTIONS, ARE SUBJECT TO AND CONDITIONED UPON THESE TERMS AND CONDITIONS OF SALE (“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

   1. “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.

   2. Seller reserves the right to manufacture the Products included in a purchase order in any one of its or its affiliates’ facilities or approved suppliers in order to meet Buyer requested manufacturing requirements and delivery dates.

   3. Seller is not required to manufacture Products to end user requirements, flow down requirements, quality requirements, material requirements, ITAR, NADCAP, or other regulatory conditions unless such requirements or conditions are expressly made part of a Contract pursuant to Section 1.a herein.

2. Acceptance. Seller will accept a purchase order by sending Buyer a written order confirmation. Seller reserves the right, in its sole discretion, to reject a purchase order, whether expressly in writing or by declining to perform.

3. 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 9 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.
4. Delivery.
   1. Any shipping or delivery date, quotation, forecast or commitment 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 4.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.
   2. 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.
   3. 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.
   4. All deliveries of Products will be EXW (Incoterms 2020) at Seller’s facility.
5. Inspection and Rejection
   1. 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 6 (“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.
   2. 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, 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.
   3. 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.
   4. 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.
   5. Buyer acknowledges and agrees that the remedies set forth in this section are Buyer’s exclusive remedies for the delivery of Nonconforming Products.
6. Limited Warranty
   1. 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 6.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 5 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.
   2. 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.
   3. 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 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.
   4. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 6.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.
7. 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.

8. 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.

9. Costs of Collection & Fees for Attorneys. In the event the Buyer Fails to pay pursuant to Section 8, the Buyer shall be liable for the Seller’s legal fees and other costs of collection.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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; (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 or (xi) unauthorized use or alteration of Products. 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.
15. Limitation of Liability.
    1. SELLER’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.
    2. 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.
    3. 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 PRODUCT, 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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 discusisions, usage of trade and course 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. A Contract and these Terms may be amended or modified only by a written agreement, signed by both parties, expressly amending or modifying the applicable Contract or these Terms.