Mistras® Terms of Sale
These Mistras Terms of Sale state the contractual terms and conditions which shall govern the order which you are about to place on Mistras’ eCommerce website to purchase Mistras products (such order, “Order”) on behalf of the entity that has authorized you to place the Order (such purchasing party, “the Customer”). Your clicking the Pay for Order button on the Cart Checkout Page shall constitute your placement of the Order and your acknowledgment that you (i) are fully authorized by the Customer to purchase the Mistras products which then appear in the Cart (such products, “the Product(s)”) on behalf of the Customer by placing the Order, (ii) have read these Terms of Sale, and (iii) agree on behalf of the Customer that these terms of sale shall govern the Customer’s purchase of the Product(s). Accordingly, please review these Terms of Sale carefully before you place an Order, and do not click on the Pay for Order button if the Customer does not accept these Terms of Sale.
- 1. Purchase Authorization. Customer hereby agrees to purchase the Product(s) and to pay Mistras the amount identified in the Cart as the Total Amount Due in consideration of its purchase of the Product(s). The Total Amount Due is the sum of the purchase price for the Product Mistras and Applicable Taxes (as defined in the following sentence), and, if applicable, any charges for non-standard shipping and any importation duties. “Applicable Taxes” means sales, use, value-added, transfer, franchise, license or withholding taxes related to the Order, but does not include any tax assessed by on the income earned by Mistras through its fulfillment of the Order.
- 2. Payment Terms. All payments shall be made in U.S. Dollars. The Customer hereby authorizes Mistras to collect the Total Amount Due by charging that amount to the credit card account that you have identified on the Cart Checkout Page.
- 3. Product Delivery; Transfer of Title and Risk of Loss; Acceptance. All delivery dates are tentative. All Products purchased hereunder shall be shipped F.O.B. point of shipment, and title in and risk of loss with respect to such Products shall pass to the Customer upon Mistras’ delivery of the Products to the delivery carrier at the point of shipment. Mistras shall have no responsibility with respect to any Product that is lost or damaged in transit subsequent to Mistras’ delivery of it the delivery carrier. Each Product sold hereunder shall be deemed accepted by the Customer upon Customer’s receipt of it.
- 4. Product Activation and Operation. The activation and operation of some Products require the installation and operation on certain Android® devices of a software application that is identified in the Product’s website and is available at the Google Store at no additional charge (each such application, a “Downloadable Application”). Customer must accept the terms and conditions governing the Customer’s operation and use of each Downloadable Application during the process of installing it on the customer’s device(s). The current list of Android devices on which Downloadable Application may be installed and operated is set forth at http// www.smartleakfinder.com/recommended-devices/ (each such device, an “Authorized Device”). The Customer shall ensure that any device on which a Downloadable Application is installed shall be connected to the internet when the device is in operation so that updates to the Downloadable Application may be delivered and installed automatically.
- 5. Software License. This section applies to any software that is an integrated element of a Product which is provided by Mistras to the Customer, other than a Downloadable Application (such software, “Software”). Mistras grants the Customer a non-exclusive, revocable in the event of breach, assignable and transferable only to a successor owner of the hardware elements of the Product right and license to operate the Software on the Product unit(s) with respect to which it is an integrated element, solely for the purpose of operating the product for its intended use in accordance with its user documentation. Except for the license granted in the previous sentence, Mistras retains all right, title and interest in all Software. The Customer obtains no ownership interest in any Software. The Customer shall not (a) reverse engineer or attempt to find the underlying code of any Software; (b) circumvent, disable, or otherwise interfere with security-related or access control features of Software; (c) modify any Software; (d) reproduce, sell, lease, rent, create derivative works from, publish by hard copy or electronic means, sublicense, disseminate, retransmit, circulate to any third party or on any third-party web site, any Software or (e) use any Software except as permitted by the first sentence of this section.
- 6. Proprietary Rights Notices. The Customer and any successor owner of the hardware elements of a Product may not remove or obscure any proprietary rights notice from any hardware or Software element of the Product.
- 7. Hardware Warranty. Subject to the following two sentences,Mistras warrants that the hardware elements of Product(s) sold hereunder shall be free from material defects in material, workmanship and fabrication during the ninety (90) day warranty period commencing upon their receipt by the Customer at its premises. Should the Customer report to Mistras before the conclusion of that ninety (90) period that the hardware element of any Product has any defect of such nature, Mistras’ sole and exclusive obligation and the Customer’s sole and exclusive remedy shall be, at Mistras’ election, to repair the defective hardware or to replace it with units that satisfy the foregoing warranty during the ninety (90) day warranty period commencing upon their receipt by the Customer at its premises. The Customer shall bear the round-trip costs of shipping hardware to and from Mistras. The warranty set forth in the first sentence of this section shall inure only to the benefit of a Product’s initial owner.
- 8. Software Warranty. Mistras warrants that, except as specified below, where Software is provided to the Customer, Software will, when properly installed, execute in accordance with Mistras’ specification during the ninety (90) day period commencing upon receipt of the hardware elements of the relevant Product by the Customer at its premises. Should the Customer report to Mistras before the conclusion of that ninety (90) day period that the Software does not operate in compliance with this warranty and provide Mistras a description of the non-conformity and the manner in which it was discovered, Mistras’ sole and exclusive obligation and the Customer’s sole and exclusive remedy shall be, at Mistras’ election, to correct the nonconformity by either (i) modifying or making available to the Customer instructions for modifying the Software or (ii) providing the Customer corrected or replacement Software. Mistras shall have no obligation with respect to nonconformities resulting from (i) any Customer actions that are prohibited by Section 5 or (ii) Customer-supplied software or interfacing. Mistras does not warrant that the functions contained in the Software will operate in combinations which may be selected for use by the Customer, or that the Software shall be free of minor errors.
- 9. Disclaimers.
A. MISTRAS MAKES NO WARRANTY, EXPRESS, IMPLIED (INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR INTENDED PURPOSE OR NON-INFRINGEMENT), OR STATUTORY, OTHER THAN THE EXPRESS WARRANTIES SET FORTH IN SECTIONS 7 AND 8.
B. Mistras shall have no liability for any injury suffered by the Customer or any third party that would have been avoided had the Customer or any individual operating a Product operated it in full compliance with its user documentation, including, where necessary, through the operation of a Downloadable Application which has been installed on an Authorized Device.
C. Mistras does not warrant that any Product supplied to the Customer hereunder comply with any industry or regulatory standard.
- 10. Confidential Information. All Software and product user documentation and information are confidential information of Mistras. The Customer shall disclose Mistras Confidential Information to third parties without Mistras’ prior written consent, and shall use Mistras Confidential Information only to operate Products purchased under this Order.
- 11. Limitation of Liability. In no event shall Mistras, its suppliers or subcontractors be liable for special, indirect, incidental, or consequential damages, whether in contract, warranty, tort, negligence, strict liability or otherwise, including, but not limited to, loss of profits or revenue, loss of use of any Product or any other Customer asset, cost of capital, cost of substitute equipment, facilities or services, downtime costs, delays, and claims of customers of the Customer or other third parties for any damages. Mistras’ liability for any claim whether in contract, warranty, tort, negligence, strict liability, or otherwise for any loss or damage arising out of, connected with, or resulting from this agreement or the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, repair, replacement, installation, technical direction of installation, inspection, operation or use of any Product furnished under this agreement shall in no case exceed the purchase price paid for the Product(s) which gave rise to the claim.
- 12. Force Majeure. Mistras will not be responsible for delays of non-performance directly or indirectly caused by governmental regulations or requirements, act of God, unavailability of materials, work stoppages, slow downs, boycotts, and other causes (whether or not similar in nature to any of these hereinbefore specified) beyond Mistras’ reasonable control.
- 13. Compliance with Laws; Export Control. The Customer shall comply with all laws pertaining to the use and exportation of each Product purchased under this Agreement, including with all applicable export and import control laws and regulations. Customer will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of any Product to any country for which approval is required under the laws of the United States or any other country unless the appropriate export license or approval has first been obtained. Without limiting the generality of the foregoing, Customer agrees that it does not intend to nor will it, directly or indirectly, engage in any export or re-export (i) to any prohibited destination under U.S. export restrictions, or to any national of any such country, wherever located, (ii) to any entity or individual who Company knows or has reason to know is engaging in the design, development or production of nuclear, chemical or biological weapons, or missile technology, or (iii) to any entity or individual who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. Government, including the U.S. Department of Treasury’s Office of Foreign Assets Control and the U.S. Bureau of Industry and Security. Customer will provide Mistras with copies of all export registrations and filings with the United States government. If the Customer wishes to learn the Export Control Classification Number (ECCN) of any Product, it should contact [email protected]
- 14. Return Authorization. The Customer must obtain a Returned Material Authorization from [email protected] before the Customer ships any defective Product to Mistras. Defective Products that are returned to Mistras while they are under warranty shall be repaired at no additional charge. Defective Products that are out of warranty will be repaired after Mistras provides the Customer a quote for repair of the Product and the Customer agrees to pay the quote amount. In either event, the Customer shall bear the round-trip costs of shipping hardware to and from Mistras.
- 15. Choice of Law. This Order shall be construed and controlled by the laws of the State of New Jersey (excluding (a) any conflicts of laws principles that would result in the application of the laws of a different jurisdiction and, (b) to the extent otherwise required by New Jersey law, the provisions of the 1980 United Nationals Convention on Contracts for the International Sale of Goods).
- 16. Termination. Either party may terminate this Order in the event that the other party does not cure its material breach of this Order within ten (10) days of its receipt of notice of material breach from the other party. Upon such termination, all Software licenses granted under this Order shall be revoked and the Customer shall cease all use of the applicable Software. Sections 6, 9, 10 – 13 and 17 and this Section 16 shall survive the termination of this Order.
- 17. U.S. Government End-Users. Each of the components that constitute a Product is a “commercial item” as that term is defined at 48 C.F.R. 2.101. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government Customers acquire Products with only those rights set forth herein.
- 18. Miscellaneous.
A. Rights Reserved. In addition to the rights and remedies reserved herein, Mistras shall have all rights and remedies conferred by law and shall not be required to proceed with performance for the contract arising herefrom if customer is in default to the company under this or any other contract.
B. Waiver. No waiver of any breach of any provision of this Order shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
C. Severability. If for any reason a court of competent jurisdiction finds any provision of this Order, or portion thereof, to be unenforceable, that provision of this Order will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Order will continue in full force and effect.
D. Notices. Notices may be delivered to Mistras at the following address: 195 Clarksville Road, Princeton Junction, NJ, 08550, Attention: General Counsel. Notices may be delivered to Customer at the address supplied by Customer in this Order.
- 19. Entire Agreement. This Order constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous communications, negotiations and agreements, whether written or oral, between the parties. No unilateral terms or conditions on materials issued by the Customer including without limitation, purchase orders, purchase agreements, and order forms, will be used to interpret or amend the arties’ legal rights and responsibilities under this Order. No course of dealing or trade practice shall act to modify or interpret any of the terms of this Order. This Agreement shall come into effect when Company’s authorized representative clicks the “Place Order” button on the Cart Checkout Page.