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Terms of Sale

 
Customer and Embedded Data Systems, LLC. ("EDS") agree that the purchase and sales of EDS hardware and software products ("the Products") are made under these terms and conditions, and that EDS SHALL NOT BE BOUND BY CUSTOMER'S ADDITIONAL OR DIFFERENT TERMS. Customer's order and purchase of the Products shall constitute acceptance of these terms and conditions.
 
Title
Title to the Products shall pass at EDS's plant. EDS retains a security interest and right of possession in the Products until Customer makes full payment.

 
Taxes
Product prices are exclusive of, and Customer shall pay, applicable sales, use, service, value added or like taxes, unless Customer has provided EDS with an appropriate exemption certificate for the delivery destination acceptable to the applicable taxing authorities.

 
Prices & Payment
All quotations shall expire thirty (30) days from date of issuance, unless otherwise set forth on the quotation or agreed in writing. Customer shall make payment in full prior to or upon shipment by wire transfer, cashier's check, credit card, or money order, unless EDS approves Customer for credit terms. If EDS approves Customer's credit application, payment shall be due no later than 30 days from the date of EDS's invoice. All sums not paid when due shall accrue interest daily at the lesser of a monthly rate of 1.5% or the highest rate permissible by law on the unpaid balance until paid in full. Payments for orders accepted in the United States shall be made in U.S. Dollars. In the event of any order for several units, each unit(s) will be invoiced when shipped. Exceptions will be made for government purchase orders.

 
Orders
All orders are subject to acceptance by EDS. EDS's booking of an order shall constitute its acceptance of an order.

 
Delivery
EDS shall deliver the Products to a carrier at EDS's plant and, if the Products are sold to a Customer outside the United States, shall clear the Products for export destined outside the United States. Customer shall pay all applicable freight charges. EDS will invoice the customer for these charges as shipping and handling fees. Customers may receive other charges for duties, customs, and /or expediting directly from the carrier. Orders are entered as close as possible to the Customer's requested shipment date, if any. Shipment dates are scheduled after acceptance of orders and receipt of necessary documents. Claims for shipment shortage shall be deemed waived unless presented to EDS in writing within forty-five (45) days of shipment.

 
Limited Warranty
EDS hardware Products are warranted against defects in materials and workmanship for a one (1) year period of time from the date EDS ships the Products to Customer ("Delivery Date"). All software Products are licensed to Customer under the terms of the appropriate Embedded Data Systems, LLC. license. Customer must obtain a Return Material Authorization number from EDS before returning any Products under warranty to EDS. Customer shall pay expenses for shipment of repaired or replacement Products to and from EDS. After examining and testing a returned product, if EDS concludes that a returned product is not defective, Customer will be notified, the product returned at Customer's expense, and a charge made for examination and testing. This Limited Warranty is void if failure of the Products has resulted from accident, abuse, misapplication, improper calibration by Customer, Customer supplied third party software not intended for use with the applicable EDS software, utilization of an improper hardware or software key or unauthorized maintenance or repair.

 
Customer Remedies
EDS's sole obligation (and Customer's sole remedy) with respect to the foregoing Limited Warranty shall be to, at its option, return the fees paid or repair/replace any defective Products, provided that EDS receives written notice of such defects during the applicable warranty period. Customer may not bring an action to enforce its remedies under the foregoing Limited Warranty more than 60 days after the occurrence of such cause of action.

 
Return/Cancellation/Change Policy
Customer may return unwanted Products within thirty (30) days of the Delivery Date with EDS’s approval. Customer shall pay a fifteen percent (15%) restocking charge on any unwanted Products returned to EDS in resalable condition. (The minimum restocking charge is $15.00.) No credit will be given for damaged goods. No returns will be accepted after the thirty (30) day period has expired. Where special equipment or services are involved, Customer shall be responsible for all related work in progress; however, EDS shall take responsible steps to mitigate damages immediately upon receipt of a written cancellation notice from Customer. A Return-Material Authorization number must be obtained from EDS for return of any Products. EDS may terminate any order if any representations made by Customer to EDS are false or misleading. Changes to orders shall not be binding upon nor be put into effect by EDS unless confirmed in writing by EDS's appropriate representative.

 
No Other Warranties
EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE PRODUCTS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED ARE MADE WITH RESPECT TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. EDS DOES NOT WARRANT, GUARANTEE, NOR MAKE ANY REPRESENTATIONS REGARDING THE USE OF NOR THE RESULTS OF THE USE OF THE PRODUCTS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, NOR OTHERWISE AND DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED NOR ERROR FREE. EDS EXPRESSLY DISCLAIMS ANY WARRANTIES NOT STATED HEREIN.

 
No Liability for Consequential Damages
The entire liability of EDS and its licensors, distributors, and suppliers (including its and their directors, officers, employees, and agents) is set forth above. To the maximum extent permitted by applicable law, in no event shall EDS and its licensors, distributors, and suppliers (including its and their directors, officers, employees, and agents) be liable for any damages, including, but not limited to, any special, direct, indirect, incidental, exemplary, or consequential damages, expenses, lost profits, lost savings, business interruption, lost business information, or any other damages arising out of the use or inability to use the Products, even if EDS or its licensors, distributors, and suppliers has been advised of the possibility of such damages. Customer acknowledges that the applicable purchase price or license fee for the Products reflects this allocation of risk. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply. If the foregoing limitation of liability is not enforceable because an EDS product sold or licensed to Customer is determined by a court of competent jurisdiction in a final, non-appealable judgment to be defective and to have directly caused bodily injury, death, or property damage, in no event shall EDS's liability for property damage exceed the greater of $50,000 or fees paid for the specific product that caused such damage.

 
Warning
(1) EDS PRODUCTS ARE NOT DESIGNED WITH COMPONENTS AND TESTING FOR A LEVEL OF RELIABILITY SUITABLE FOR USE IN OR IN CONNECTION WITH SURGICAL IMPLANTS OR AS CRITICAL COMPONENTS IN ANY LIFE SUPPORT SYSTEMS WHOSE FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO CAUSE SIGNIFICANT INJURY TO A HUMAN. (2) IN ANY APPLICATION, INCLUDING THE ABOVE, RELIABILITY OF OPERATION OF THE SOFTWARE PRODUCTS CAN BE IMPAIRED BY ADVERSE FACTORS, INCLUDING BUT NOT LIMITED TO FLUCTUATIONS IN ELECTRICAL POWER SUPPLY, COMPUTER HARDWARE MALFUNCTIONS, COMPUTER OPERATING SYSTEM SOFTWARE FITNESS, FITNESS OF COMPILERS AND DEVELOPMENT SOFTWARE USED TO DEVELOP AN APPLICATION, INSTALLATION ERRORS, SOFTWARE AND HARDWARE COMPATIBILITY PROBLEMS, MALFUNCTIONS OR FAILURES OF ELECTRONIC MONITORING OR CONTROL DEVICES, TRANSIENT FAILURES OF ELECTRONIC SYSTEMS (HARDWARE AND/OR SOFTWARE), UNANTICIPATED USES OR MISUSES, OR ERRORS ON THE PART OF THE USER OR APPLICATIONS DESIGNER (ADVERSE FACTORS SUCH AS THESE ARE HEREAFTER COLLECTIVELY TERMED "SYSTEM FAILURES"). ANY APPLICATION WHERE A SYSTEM FAILURE WOULD CREATE A RISK OF HARM TO PROPERTY OR PERSONS (INCLUDING THE RISK OF BODILY INJURY AND DEATH) SHOULD NOT BE RELIANT SOLELY UPON ONE FORM OF ELECTRONIC SYSTEM DUE TO THE RISK OF SYSTEM FAILURE. TO AVOID DAMAGE, INJURY, OR DEATH, THE USER OR APPLICATION DESIGNER MUST TAKE REASONABLY PRUDENT STEPS TO PROTECT AGAINST SYSTEM FAILURES, INCLUDING BUT NOT LIMITED TO BACK-UP OR SHUT DOWN MECHANISMS. BECAUSE EACH END-USER SYSTEM IS CUSTOMIZED AND DIFFERS FROM EDS'S TESTING PLATFORMS AND BECAUSE A USER OR APPLICATION DESIGNER MAY USE EDS PRODUCTS IN COMBINATION WITH OTHER PRODUCTS IN A MANNER NOT EVALUATED OR CONTEMPLATED BY EDS, THE USER OR APPLICATION DESIGNER IS ULTIMATELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE SUITABILITY OF EDS PRODUCTS WHENEVER EDS PRODUCTS ARE INCORPORATED IN A SYSTEM OR APPLICATION, INCLUDING, WITHOUT LIMITATION, THE APPROPRIATE DESIGN, PROCESS AND SAFETY LEVEL OF SUCH SYSTEM OR APPLICATION.

 
Force Majeure
EDS shall be excused for any delay or failure to perform due to any cause beyond its reasonable control, including but not limited to acts of governments, natural catastrophes, acts of Customer, interruptions of transportation or inability to obtain necessary labor or materials. EDS's estimated shipping schedule shall be extended by a period of time equal to the time lost because of any excusable delay. In the event EDS is unable to perform in whole or in part because of any excusable failure to perform, EDS may cancel orders without liability to Customer.

 
Acknowledgment/Governing Law
Customer acknowledges reading these Terms and Conditions, understands them and agrees to be bound by them. A waiver of any provision of this agreement shall not be construed as a waiver or modification of any other term hereof. With respect to all orders accepted by EDS in the United States, disputes arising in connection with these Terms and Conditions of Sale shall be governed by the laws of the State of Kentucky without regard to principles of conflicts of laws.

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