Terms of Conditions of Sales

1. Scope

   These Terms and Conditions of Sale apply to all contracts resulting from bids, quotations, and offers to sell equipment and services (which collectively are herein some- times called products) to be supplied by Beckwood Services (Seller) as a result of Buyer’s submission of a purchase order(s) for such products, and Seller’s acceptance of said order(s). Any such contact(s) shall be deemed to incorporate and be governed by these Terms and Conditions. No Term or Condition of Buyer’s order additional to or different from these Terms and Conditions shall become part of the contract unless explicitly referenced and agreed to in writing by an authorized officer of Beckwood Services at its principal offices in New Hampshire. Retention by Buyer of any products, or payment by Buyer of any invoice rendered under the contract, shall be conclusively deemed acceptance of these Terms and Conditions. The Seller’s failure to object to any provision contained in any communication from Buyer shall not be construed as a waiver of these Terms and Conditions, nor as an acceptance of any such provision.

2. Orders

   By submitting an order to Seller, Buyer agrees to be subject to these Terms and Conditions of Sale in their entirety. No order, whether or not submitted in response to a quotation by Seller, shall be binding upon Seller unless and until accepted in writing by an authorized officer of the Seller at its principal office in New Hampshire.

3. Prices and Taxes

   Prices do not include federal, state, or local taxes, including without limitation sales, use or excise taxes, now or hereafter enacted, applicable to the products sold in this transaction, which taxes may, at Seller’s discretion, be added by Seller to the sales price or may be billed separately and which taxes will, in any event, be paid by Buyer unless Buyer provides Seller with a proper tax-exemption certificate.

4. Delivery and Shipment

   All products will be tendered and shipped F.O.B Seller’s manufacturing site and may be so tendered in several lots. In the absence of specific instructions from Buyer, Seller will select the carrier and ship “collect”, but shall not be deemed thereby to assure any liability in connection with the shipment. Title and risk of loss or damage to all products sold hereunder shall pass from Seller to Buyer upon delivery be Seller to the possession of the carrier, provided that Seller reserves a purchase money security interest in said products.

5. Terms of Payment

   Unless otherwise stated on Seller’s invoice, terms of payment shall be net thirty (30) days from date of invoice. If buyer fails to pay the price or any other payment due hereunder when due, Seller may recover, in addition to the price or payment, interest thereon at a rate equal to the lesser of 1-1/2% per month and the maximum lawful monthly interest rate. Terms of payment hereunder may be changed by Seller at any time.

6. Security Interest

   Buyer hereby grants to Seller a security interest in all products sold to Buyer by Seller as security for the due and punctual performance by Buyer of all of its obligations hereunder. Buyer agrees to execute such documents to evidence and perfect said security interest as Seller may require. Buyer hereby appoints any officer of Seller as its duly authorized agent for the purpose of taking any and all such action, including execution of documents, deemed necessary by Seller, in its sole discretion, for the perfection and enforcement of the security interest granted hereby.

7. Contingencies

   Seller shall not be liable for any delay in delivery or for non-deliveries, in whole or in part, caused by the occurrence of any contingency beyond the control of Seller, including by way of illustration but not limitation, war (whether an actual declaration thereof is made or not), sabotage, insurrection, riot or other act of civil disobedience, act of a public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof, judicial action, labor dispute, accident, fire, explosion, flood, storm or other act of God, shortage of labor, fuel, material or machinery, failure of Seller’s suppliers to deliver or any technical failure where Seller has exercised ordinary care in the prevention thereof. If any such contingency occurs, Seller may allocate production and deliveries among its customers.

8. Equipment

   Seller may modify the specification of equipment furnished under these Terms and Conditions of Sale provided the modifications do not adversely affect the performance of said equipment. In addition, Seller may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by government authority, or non-availability from suppliers.

9. Software

   Seller shall at all times have and retain title to and full ownership of all software and documentation thereof supplied by Seller for use with the equipment and of all copies thereof made by Buyer (collectively referred to a “software”). Seller hereby grants to Buyer a license to use the software with the equipment and to make copies of the software in machine readable form to the extent necessary for the efficient use of the equipment by the Buyer. Buyer shall not remove any statutory copyright notice included in the software and shall reproduce all such notices on all copies, including revised, modified or translated versions, made by Buyer unless otherwise directed by Seller in writing. Buyer shall limit use of and access to all software to such of Buyer’s employees and consulting as are directly involved in the operation and maintenance of the equipment. Buyer shall prevent its employees, consultants, and former employees and consultants from making any disclosure of the software which is not required for the operation and maintenance of the equipment by the Buyer. The license granted to Buyer hereunder may not be transferred without the prior written consent of Seller, except that license may be transferred upon transfer of the equipment to which said license applies when Buyer obtains from transferee agreement to assume and comply with all obligations of Buyer with respect to the software. When the buyer no longer desires to use the software, Buyer shall notify Seller in writing and return or destroy all copies thereof.

10. Warranties
    • Equipment

      Seller warrants that all equipment manufactured by it shall be free from defects in materials and workmanship under normal use for a period of one (1) year from date of shipment to Buyer. If any equipment covered by this warranty is returned to and received at the original shipping point, transportation charges prepaid, within one (1) year from the date of original shipment to the Buyer, and upon examination Seller determines to its satisfaction that such equipment is defective in material of workmanship and such defect was not caused by accident, misuse, neglect, alteration, improper installation, improper adjustment, improper repair, or improper testing. Seller shall at its option (1) repair or replace the equipment and reship to Buyer, shipping charges prepaid, or (2) credit the account of the buyer for the original cast of the shipment. If Seller elects to repair or replace the equipment, seller shall have reasonable time to make repairs or replacement.

    • Software

      If, at any time during the period ending ninety (90) days after shipment of the software to the buyer, Buyer shall report and document any error in the software that prevents conformance with Seller’s description of the software, or prevents use by Buyer, Seller shall use reasonable efforts to correct any such error, provided, however, that this warranty shall apply only to those portions of the software, or its replacement, that incorporated all program corrections and modifications, if any, delivered to the Buyer; and provided further that this warranty shall not apply to any error or failure due to machine error or to the misuse or misapplication of the software or negligence of any person and shall not apply to any software which is modified by Buyer.

    • Termination

      If Buyer fails to pay when due any portion of the price or any other payment required from Buyer to Seller under this contract or otherwise, all warranties and remedies granted herein and all warranties and obligations of Seller to service, repair, replace, correct, or otherwise remedy defects, errors or failure under any contract between Buyer and Seller may, at Seller’s option, be terminated.

    • Other Equipment

      With respect to equipment sold to Buyer by Seller but not manufactured by Seller, SELLER MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, but will assign the manufacturer’s warranty, to the extent permitted, to Buyer upon Buyer’s timely written request.

    • THE WARRANTIES GIVEN IN THIS SECTION 10 ARE THE ONLY WARRANTIES GIVEN BY SELLER WITH RESPECT TO THE PRODUCTS AND SERVICES AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTIBILITY AND OF THOSE EXPRESSED HEREIN. If any remedy expressed in this section or otherwise offered by Seller fails its essential purpose, Buyer agrees to give Seller written notice to that effect and reasonable opportunity, at Seller’s option, to offer and provide further remedies consistent with said purpose.

11. Patents

    All products delivered by Seller shall meet Buyer requirements as warranted herein. If any infringement of a United States patent in construction or design of warranted products is identified in writing by Buyer, Seller warrants that it will assist at Buyer’s expense with Buyer’s defense and proceedings to obtain non-infringing equipment or to obtain right to use said products. Such assistance may include modification or replacement of equipment and re-manufacture to eliminate infringement, in accordance with Buyer instruction and expense. Seller shall not be liable for any infringement arising from combination of any warranted equipment with any system or product other than warranted equipment. Seller shall not be liable for any expense incurred without Seller’s written authorization. THE FOREGOING STATES THE ENTIRE LIABILITY OF SELLER WITH RESPECT TO ANY ALLEGED PATENT INFRIDGEMENT OF THE WARRANTED PRODUCTS.

12. Limitation of Liability

    An essential purpose of the limited exclusive remedies provided in Section 10 and 11 is allocation of risks between Seller and Buyer, which allocation of risks is reflected in the purchase price of the products and/or services. UNDER NO CIRCUMSTANCES SHALL SELLER’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT OR SELLER’S PERFORMANCE OR ASSERTED FAILURE TO PERFORM THEREUNDER, IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE PURCHASE PRICE OF THE PRODUCTS; AND IN NO EVENT SHALL SELLER BE LIABLE IN CONTRACT, TORT OROTHERWISE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR ANALOGOUS DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF USE, LOSS OF PROFITS, LOSS OF BUSINESS, OR LOSS OF GOODWILL.

13. Proprietary Information

    Buyer represents that it has adopted reasonable procedures to protect Proprietary Information, as defined hereafter, including binding agreements with employees and consultants to prevent unauthorized disclosure or use of such information during or after the term of their employment by or services for buyer. Buyer shall not use Proprietary Information except as expressly permitted hereunder, shall not disclose Proprietary Information to any third party, except as may be authorized in writing by Seller.

    “Proprietary Information” shall mean information, data, or documentation of Seller or of a third party to whom Seller owes obligation of confidentiality, and which is furnished or to be furnished in written, graphic, or machine-readable form and is marked proprietary or confidential. Where copies or alternative forms of information or data are received from Seller, such information or data shall be considered Proprietary Information if at least one (1) of said copies or alternative forms is marked proprietary or confidential.

    This Section 13 shall not apply to information which Buyer demonstrates was in Buyer’s possession prior to receipt from Seller or information which Buyer demonstrates is or has become available to the public or general knowledge in the industry otherwise than through the fault of Buyer.

14. Termination

    Orders accepted in writing by Seller may be canceled by Buyer only with written consent of Seller (which consent may be withheld for any reason) and payment of reasonable cancellation charges. Seller shall have the right without penalty or payment to cancel any order accepted, or to refuse or delay shipment thereunder (1) if Buyer fails to make promptly any payment due Seller or to meet any other reasonable requirement established by Seller, (2) if any act or omission of Buyer delays Seller’s performance, or (3) if Buyer’s credit becomes impaired. In any such events, Seller shall be entitled to reasonable cancellation charges.

15. Non-Waiver of Default Remedies

    In the event of any default by Buyer under this or any other contract between Seller and Buyer, Seller may decline to make shipments and Buyer shall pay all costs incurred by Seller to enforce such contract, including reasonable attorney’s fees. If Seller elects to continue shipments, Seller’s action shall not constitute waiver of any default by Buyer or in any way affect Seller’s legal remedies for any such default. All Seller rights and remedies shall be cumulative and non-exclusive and may be excised singularly or concurrently.

16. Applicable Law

    The validity, performance, and construction of any contract subject to these Terms and Conditions of Sale shall be governed by the laws of the Commonwealth of New Hampshire.

17. Export

    Regardless of any disclosure made by Buyer to Seller of an ultimate destination of Seller products, Buyer will not export either directly or indirectly any Seller products, or any system incorporating said products. Without first obtaining all required licenses and permits from the United States Department of Commerce and any other relevant agencies or departments of the United States Government.

18. Assignment

    Contracts subject to these Terms and Conditions of Sale shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors, and permitted assigns. The contracts are personal to Buyer, and Buyer may not assign any of its rights or delegate any of its obligations thereunder, in whole or on part, without the prior written consent of Seller, which may be withheld for any reason.