Terms and Conditions

UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING, ALL QUOTATIONS ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:

1. Buyer understands and agrees that all quotations and accepted orders by VBS, Inc. (“Seller”) are expressly conditioned upon these terms and conditions. Furthermore, your acceptance of this quotation indicates that you have also read, and agree, to the VBS, Inc. Terms and Conditions of Sale which are deemed automatically incorporated into any and all purchase orders.

2. Prices are firm for 10 days unless otherwise noted. As to all other terms, until signed and returned, the quotation is merely a quotation of sales prices.

3. Seller is not required to accept Buyer’s orders. Any purchase order pursuant to Seller’s quotation shall not result in a contract until it is accepted by Seller and acknowledged.

4. This quotation is contingent upon Buyer meeting the financial qualifications established by Seller. Buyer shall supply Seller with such credit information as Seller may reasonably request in order to qualify Buyer for the rights under any Purchase Order Agreement.

5. Special orders may not be subject to return for credit. Return privileges, if available, on special order material will involve restocking charges. Special orders require a non-refundable 50% down payment.

6. Prices do not include taxes for sales, use, property, excise, freight or other tax charges, which are Buyer’s responsibility.

7. If the quotation is accepted and Buyer’s purchase order is used for the purpose, it is expressly understood and agreed that these Terms and Conditions, including the Terms and Conditions of Sale, shall prevail if they conflict in any way with the terms and conditions set forth in such purchase order, and the issuance of such order by Buyer shall be deemed to note Buyer’s assent to this condition. IF BUYER DOES NOT AGREE TO THESE TERMS AND CONDITIONS OF QUOTATIONS, PLEASE DO NOT SEND PURCHASE ORDER!

8. BUYER AGREES TO AND ACKNOWLEDGES RECEIPT OF THESE TERMS AND CONDITIONS WHETHER HAND DELIVERED OR THROUGH VIEWING ONLINE AT vbssys.com, where copies of the Terms and Conditions of Quotation and Terms and Conditions of Sale are available.

UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING, ALL SALES ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:

1. The provisions set forth herein are the terms and conditions pursuant to which the buyer named on the face hereof (“Buyer) will purchase and VBS, Inc. (“Seller”) will sell the products listed on the face hereof (the “Products”). These Terms and Conditions shall govern and apply to the sale of the Products to Buyer, regardless of any terms and conditions appearing on any purchase order or other forms submitted by the Buyer to Seller or given verbally by Buyer to Seller. All orders are subject to acceptance in writing by an authorized representative of Seller.
2. All prices published or quoted may be changed at any time without notice. All prices for the Products will be as specified by Seller or, if no price has been specified or quoted, will be Sellers price in effect at the time of shipment. All prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms or conditions which are not part of Sellers original price quotation. Prices for the Products are exclusive of all taxes and duties imposed by any governmental authority with respect to the Products covered hereby, all of which taxes and duties must be paid by Buyer.
3. Terms of Payment. Unless otherwise specified in writing, the purchase price for the Products, all taxes, and all other charges and expenses incurred by Seller at the request of Buyer, shall be paid in full at the time of delivery, in US dollars. Delays in delivery shall not extend terms of payment If Buyer fails to pay any amount when due, Buyer shall pay Seller interest thereon at a periodic rate of one and one-half percent (1.5%) per month (or, if lower, the highest rate permitted by law), together with all costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) incurred by Seller in collecting such overdue amounts or otherwise enforcing Seller’s rights hereunder. Seller reserves the right to require from Buyer full or partial payment in advance, or other security satisfactory to Seller, at any time that Seller believes in good faith that Buyers financial condition does not justify the terms of payment specified. Seller reserves the right to revoke any credit extended to Buyer because of Buyer’s failure to pay for any goods when due or for any reason deemed to be good and sufficient by Seller.
4. Delivery; Cancellation or Changes by Buyer. Unless otherwise agreed in writing, Products will be shipped FCA point of manufacture Sioux Center, Iowa. Seller shall have the right at its election, to make partial shipments of the Products and to invoice each shipment separately. The Products shall be insured in transit at the expense of Buyer. Seller reserves the right to stop delivery of Products in transit and to withhold shipments in whole or in part if Buyer fails to make any payment to Seller when due or otherwise fails to perform its obligations hereunder. All shipping dates are approximate only, and Seller shall not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond Seller’s reasonable control. In the event of a delay due to any cause beyond Seller’s reasonable control, Seller reserves the right to terminate the order or to reschedule the shipment within a reasonable period of time, and Buyer shall not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay. Products unto which delivery is delayed due to any cause within Buyer’s control may be placed in storage by Seller at Buyer’s risk and expense and for Buyers account. Orders in process may be canceled only with Sellers written consent and upon payment of Seller’s cancellation charges. Orders in process may not be changed except with Seller’s written consent and upon agreement by the parties as to an appropriate adjustment in the purchase price therefor. Credit shall not be allowed for Products returned without the prior written consent of Seller.
5. Title and Risk of Loss. Subject to the provisions of Section 6 below and to Sellers right to stop delivery of Products in transit, title to and risk of loss of the Products will pass to Buyer at the FCA point; provided, however, title to software shall be subject to Section 10 below. Any claims for damage to, or loss or misdelivery of, the Products will be filed directly with the carrier by Buyer. Notwithstanding the provisions contained in these Terms and Conditions to the contrary, Seller shall not be responsible or liable for any loss or damage whatsoever, including loss of income and/or profits, incidental, special or consequential damages resulting from Seller’s delayed performance in shipping or delivery of the Products for any reason whatsoever. All freight charges are stated on Sellers invoices and are part of the Seller’s payment terms.
6. Security Interest. To secure any indebtedness due and owing from Buyer from time to time, Buyer hereby grants to Seller a continuing purchase money security interest in any and all of Seller’s Products heretofore or hereafter sold or delivered to Buyer by Seller, and all related parts, components and accessories therefor, and all proceeds arising from the sale or other disposition of the foregoing, including, but not limited to, cash, accounts, contract rights, accounts receivable, instruments and chattel paper. Buyer shall at no time grant any security interest in conflict with that granted to Seller herein. Buyer authorizes Seller to file, and ratifies the filing of, any financing statements necessary to evidence and perfect Sellers security interest as described above.
7. Seller warrants that the Products sold hereunder will be free from defects in material and workmanship when subjected to normal, proper and intended usage by properly trained personnel, for a period of one (1) year from the date of shipment from Seller’s facility. Seller agrees during the Warranty Period, provided it is promptly notified in writing upon the discovery of any defect and further provided that all costs of returning the defective Products to Seller are pre-paid by Buyer, to repair or replace, at Seller’s option, defective Products so as to cause the same to operate in substantial conformance with said specifications. Replacement parts may be new or refurbished, at the election of Seller. All replaced parts shall become the property of Seller. Shipment to Buyer of repaired or replacement Products shall be made in accordance with the provisions of Section 5 above. Lamps, fuses, bulbs and other expendable items are expressly excluded from the warranty under this Section 8. Seller’s sole liability with respect to equipment, materials, parts or software furnished to Seller by third party suppliers shall be limited to the assignment by Seller to Buyer of any such third party suppliers warranty, to the extent the same is assignable. In no event shall Seller have any obligation to make repairs, replacements or corrections required, in whole or in part, as the result of (i) normal wear and tear, (ii) accident, disaster or event of force majeure, (iii) misuse, fault or negligence of or by Buyer, (iv) use of the Products in a manner for which they were not designed, (v) causes external to the Products such as, but not limited to, power failure or electrical power surges, (vi) improper storage of the Products or (vii) use of the Products in combination with equipment or software not supplied by Seller. If Seller determines that Products for which Buyer has requested warranty services are not covered by the warranty hereunder, Buyer shall pay or reimburse Seller for all costs of investigating and responding to such request at Seller’s then prevailing time and materials rates. If Seller provides repair services or replacement parts that are not covered by the warranty provided in this Section 8, Buyer shall pay’ Seller therefor at Seller’s then prevailing time and materials rates. ANY INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHER TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN SELLER WITHOUT SELLER’S PRIOR WRITTEN APPROVAL, OR ANY USE OF REPLACEMENT PARTS NOT SUPPLIED BY SELLER, SHALL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITH RESPECT TO THE AFFECTED PRODUCTS.

THE OBLIGATIONS CREATED BY THIS SECTION TO REPAIR OR REPLACE A DEFECTIVE PRODUCT SHALL BE THE SOLE REMEDY OF BUYER IN THE EVENT OF A DEFECTIVE PART. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, SELLER’S WARRANTY HEREIN IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES OF SELLER AND THE MANUFACTURER OF THE PRODUCTS (COLLECTIVELY, “MANUFACTURING AND SELLING PARTIES”) AND SELLER DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, STATUTORY OR OTHERWISE CREATED UNDER APPLICABLE LAW, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. SELLER DOES NOT WARRANT THAT THE PRODUCTS ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.

8. Patent Infringement. Seller’s liability for patent infringement (and the liability of the Manufacturing and Selling Parties) is limited to Seller’s defense of any suit or proceeding brought against Buyer based on a claim that the Products sold hereunder, when employed in the manner intended by Seller, constitutes an infringement of any patent of the United States. If Buyer’s use of the Products in the manner intended by Seller is finally enjoined, Seller shall, at its option, procure for Buyer the right to continue using the Products, replace the same with non-infringing Products, modify the Products so that they become non-infringing, but equivalent to the Products sold hereunder, or refund the purchase price (less allowance for use, damage or obsolescence). Seller makes no warranty against patent infringement resulting from portions of the Products made to Buyer’s specifications or the use of Products in combination with any other Products or in the practice of any process and if a claim, suit or action against the Manufacturing or Selling Parties is based thereon, Buyer shall defend, indemnify and save Seller and the Manufacturing and Selling Parties harmless from and against any and all claims, losses or damages arising therefrom.
9. In addition to any indemnification obligations set forth in other sections of this Agreement, Seller agrees to indemnify, protect, defend, and hold harmless the Buyer during the term of this Agreement and any time hereafter against any and all costs and expenses (including, but not limited to, reasonable attorneys’ fees and expenses, overhead, settlements, judgments, and court cost) the Buyer incurs arising out of or related to any claims (i) involving the death of or injury to any person or any damage to tangible property caused by Seller’s breach of the terms of this Agreement or Seller’s negligence, or (ii) alleging or asserting in whole or in part (A) any failure of the product to comply with the performance specifications, warranties, and certifications under this Agreement; (B) negligence on the part of Seller; or (C) other claims of strict product liability.

Buyer agrees to indemnify, protect, defend, and hold harmless Seller during the term of this Agreement and any time thereafter against any and all cost and expenses (including, but not limited to, reasonable attorneys’ fees and expenses, overhead, settlements, judgments, and court costs) Seller incurs arising out of or related to any claims which are the result of (i) design or other special requirements specified in writing by a duly authorized representative of Buyer and incorporated the equipment over the written objection of Seller; or (ii) negligence on the part of Buyer.

10. Software. Seller and Buyer intend and agree that such software products incorporated in or forming a part of the Products are being licensed and not sold, and that the words “purchase”, “sell” or similar or derivative words are understood and agreed to mean “license”, and that the word “Buyer” or similar or derivative words are understood and agreed to mean “licensee”. Notwithstanding anything to the contrary contained herein, Seller or its licensor, as the case may be, retains ownership of and title to all software products provided hereunder.

Seller hereby grants to Buyer a royalty-free, non-exclusive, nontransferable license, without power to sublicense, to use software provided hereunder solely for Buyer’s own internal business purposes on the hardware products provided hereunder and to use the related documentation solely for Buyer’s own internal business purposes. This license terminates when Buyer’s lawful possession of the hardware products provided hereunder ceases, unless earlier terminated as provided herein. Seller is the owner and retains ownership of the software products and related documentation provided hereunder and any copies thereof, and of all copyright, trade secret, patent, trademark and other intellectual property rights therein. Buyer agrees not to sell, transfer, license, loan or otherwise make available to third parties the software products and related documentation provided hereunder. Buyer may not change or supplement the software products provided hereunder without Seller’s prior written consent The source code for the software products supplied hereunder will not be disclosed to Buyer, and Buyer shall not disassemble, decompile or reverse engineer the software products supplied hereunder. Buyer agrees to hold in confidence the software products and related documentation supplied hereunder and not to disclose or make available in any form the same, except to Seller’s and Buyer’s employees and agents. Seller may terminate this license if Buyer fails to comply with any term or condition herein. Buyer will, upon termination of this license, immediately to return to Seller all software products and related documentation provided hereunder and all copies thereof.

Certain of the software products provided by Seller may be owned by one or more third parties and licensed to Seller. Seller and Buyer agree that software products owned by third parties and provided hereunder are being sublicensed to Buyer, that such third parties retain ownership of and title to such software products, and that such third parties may directly enforce Buyer’s obligations hereunder in order to protect their respective interests in such software products. The warranty and indemnification provisions set forth herein shall not apply to software products owned by third parties and provided hereunder.

11. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE LIABILITY OF SELLER UNDER THESE TERMS AND CONDITIONS (WHETHER BY REASON OF BREACH OF WARRANTY, BREACH OF CONTRACT, TORT OR OTHERWISE, BUT EXCLUDING LIABILITY OF SELLER UNDER SECTION 8 ABOVE) SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL PURCHASE PRICE THERETOFORE PAID BY BUYER TO SELLER WITH RESPECT TO THE PRODUCT(s) GIVING RISE TO SUCH LIABILITY, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE OF FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF PROFITS OR LOSS OF GOODWILL), REGARDLESS OF WHETHER SELLER (A) HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR (B) IS NEGLIGENT.
12. Export Restrictions.
    1. S. Export Laws and Reputations. Buyer acknowledges that each Product and any related software and technology, including documents and other material containing technical data and other information (collectively “Items”), may be subject to export controls of the U.S. government, including those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”). Buyer shall comply with the EAR and all other United States laws, regulations, laws, treaties, and agreements relating to the export or re-export of any Item, and without limiting the foregoing, shall not, without first obtaining permission to do so from the appropriate U.S. government agencies, (I) export or re-export any Item into any of those countries listed from time to time in the EAR as countries subject to general embargoes or to any persons who are specially designated nationals of such countries or (ii) export, re-export, distribute or supply any Item to a person if Buyer knows that such person intends to export or re-export the Item to any such embargoed country or a national thereof or intends to use or allow others to use the Item for activities related to weapons or their delivery. Buyer shall cooperate fully with Seller in any official or unofficial audit or inspection related to the export control laws or regulations of the U.S. government.
    2. Non-U.S. Approvals. Buyer shall obtain and maintain, at its own expense, any non-United States governmental consents, authorizations, approvals, filings, permits, or licenses required for it to export or import any Product or other Item and for each of Buyer and Seller to exercise its rights and to discharge its obligations under this Agreement including, without limitation, all consents of and filings with any non-United States governmental body.
    3. Indemnification. Buyer agrees to indemnify and hold Seller harmless from, or in connection with, any violation of the provisions of this Section by Buyer or its employees, consultants, agents, or customers.
13. Miscellaneous. (A) Buyer may not delegate any duties nor assign any rights or claims hereunder without Seller’s prior written consent, and any such attempted delegation or assignment shall be void, (B) The rights and obligations of the parties hereunder shall be governed by and construed as a sealed instrument in accordance with the laws of the State of Iowa without reference to its choice of law provisions. The application to this Agreement of the U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded. (C) Each party hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts located in Sioux County, State of Iowa, in any action arising out of or relating to this Agreement and waives any other venue to which it may be entitled by domicile or otherwise. (D) ALL PARTIES WAIVE ANY RIGHT TO A TRIAL BY JURY. (E) Any action arising under this Agreement must be brought within two years from the date that the cause of action arose. (F) In the event that any one or more provisions contained herein (other than the provisions obligating Buyer to pay Seller for the Products) shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. (G) The remedies contained herein are cumulative and in addition to any other remedies at law or in equity. All rights available to Seller under the Uniform Commercial Code are reserved to Seller as remedies available in the event of default or breach by Buyer. (H) Seller’s failure to enforce, or Seller’s waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by Seller and Buyer. (I) Any notice or communication required or permitted hereunder shall be in writing and shall be deemed received when personally delivered or three (3) business days after being sent by certified mail, postage prepaid, to a party at the address specified herein or at such other address as either party may from time to time designate to the other. (J) This is the complete and exclusive statement of the contract between Seller and Buyer with respect to Buyer’s purchase of the Products, and supersedes any and all prior agreements, correspondences, quotations or understandings heretofore in force between the parties relating to the subject matter hereof. (K) These Terms and Conditions shall be binding upon the successors and legal representatives of Buyer and Seller.
14. Entire Agreement. These terms and conditions constitute the entire agreement and understanding between Buyer and Seller concerning the subject matter hereof and supersedes all prior agreements and understandings of the parties with respect thereto. These terms and conditions may NOT be altered, supplemented, or amended by the use of any other documents. Any attempt to alter, supplement or amend this document or to enter an order for products or services which are subject to additional or altered terms and conditions shall be null and void, unless otherwise agreed to in a written agreement signed by Buyer and Seller.  To the extent that anything in or associated with site is in conflict or inconsistent with these terms and conditions, these terms and conditions shall take precedence.  If Buyer finds these Terms and Conditions of Sale not acceptable, Buyer may wish to return product to Seller in Sioux Center, IA within 10 days of invoice for a full refund (less freight) of said product.

Any questions?  Contact Jeff Gross at  jgross@vbssys.com