HBM Prenscia Inc.  Terms and Conditions of Sale

Last updated: June 27, 2018

These terms and conditions (“Terms”) shall apply to the sale of all Products by HBM Prenscia Inc., an Arizona corporation located at 5210 E. Williams Circle, Suite 240, Tucson, AZ 85711-4405, or its subsidiaries, including but not limited to HBM Prenscia Sp. z o.o., HBM Prenscia Pte Ltd, ReliaSoft India Private Limited, and HBM nCode Federal LLC, (“Seller”) to the Buyer. When the Buyer submits orders to HBM Prenscia Inc. (including Purchase Orders, Credit Card Orders, prepayments via Check or Wire/ACH/Telegraphic Transfer, or similar) (each an “Order”), for products, services and/or deliverables (the “Products”) described in the applicable Order or the Seller’s quotation, proposal or statement of work (the “Quotation”) the order processing, fulfillment, and sale of the Products will be governed by these Terms.

If the Products involve software, then these Terms also include the end user license agreement distributed for the Products by the Seller’s UK affiliate, HBM United Kingdom Limited, (the “EULA”). If there is a direct conflict between these Terms and the EULA, the EULA shall prevail. When using Seller’s websites, Buyer acknowledges that it does so under the Seller’s terms of use and privacy policy, and the Buyer agrees to comply with such terms of use and privacy policy. If the Order or Quotation involves registration for Seller Events, including but not limited to training seminars, conferences, or the Applied Reliability or Durability Conference (“Seller Events”) then additional terms shall apply to the sale; these additional terms can be found under Section 23 below.

PLEASE READ THESE TERMS CAREFULLY. BUYER’S RETENTION OF ANY PRODUCTS DELIVERED BY SELLER, OR PAYMENT BY BUYER OF ANY INVOICE RENDERED HEREUNDER SHALL BE DEEMED AS BUYER HAVING READ, ACCEPTED, AND UNCONDITIONALLY AGREED TO THESE TERMS.

1. Controlling Provisions: These Terms shall take precedence over any terms and conditions which appear in Buyer's Order or purchase order or in any documents incorporated by reference in Buyer's purchase order. Seller’s acceptance of Buyer’s Order or purchase order is conditioned upon Buyer’s acceptance of these Terms. No term or condition of Buyer’s Order or purchase order additional to or different from these Terms shall become part of the contract unless explicitly agreed to in writing by Seller. Other deviations from and/or additions to these Terms shall only be valid if they have been expressly agreed to in writing by both parties. In addition to the aforementioned acceptance language, Buyer’s acceptance may also be demonstrated through any other conduct that evidences the existence of an agreement with respect to the Products that are the subject of Seller’s Quotation. Seller’s failure to object to any provision contained in any communication from Buyer shall not be construed as waiver of these Terms nor as an acceptance of any such provision.

2. Changes to these Terms:  Seller reserves the right, in its sole discretion, to modify, update, add to, discontinue, remove, or otherwise change any portion of these Terms at any time. When Seller amends these Terms, we will revise the “last updated” date located at the top of this page.

3. Payment Terms: Buyer agrees to pay for the Products described in the applicable Order or Quotation according to the Seller's payment terms set out in the applicable Quotation. In the event Buyer fails to make any payment to Seller when due, Buyer's entire account(s) with Seller shall become immediately due and payable on notice. All past due amounts are subject to a 0.0067% per day interest charge or the maximum allowed per law, whichever is lower. Buyer hereby grants Seller a purchase money security interest in the Products purchased until such time as Buyer has fully paid for such Products. Buyer will use commercially reasonable efforts to assist Seller in taking the necessary action to perfect and protect Seller's security interest.

4. Remedies of Seller: Upon default by Buyer, Buyer agrees to reimburse Seller for all reasonable attorney fees and court costs incurred by Seller in connection with the Buyer’s default. Buyer agrees that any of the following shall constitute a default which shall enable Seller, at its option, to cancel any unexecuted portion of a sale of Products or to exercise any right or remedy which it may have by law: (a) the failure of Buyer to perform any term or condition contained within these Terms; (b) any failure of Buyer to give notice required herein; (c) the insolvency of Buyer or its failure to pay debts as they mature, an assignment by Buyer for benefit of its creditors, the appointment of a receiver for Buyer or for the Products covered by an Order or Quotation, or the filing of any petition to adjudicate Buyer as bankrupt; (d) the death, incompetency, dissolution, or the termination of the existence of Buyer; or (e) a determination by the Seller, acting reasonably and in good faith, that Buyer's prospect of performance under these Terms is materially impaired. All rights and remedies of Seller or Buyer herein are in addition to, and shall not exclude, any rights or remedies that either may have by law. In the event it becomes necessary to incur any expense for collection of any overdue account then reasonable and documented collection charges, including reasonable attorneys' fees, will be added to the balance due and Buyer shall pay all such charges in accordance with the payment terms herein.

5. Seller’s Rejection of Order: Seller reserves the right to reject any Order placed by Buyer with or without cause. Should Seller reject an Order, Buyer will be notified electronically of such action and Seller will neither invoice nor charge Buyer for such rejected Order. Alternatively, Seller may elect to suspend an Order and contact Buyer for clarification; should Buyer and Seller resolve any issues causing the suspension and agree to either complete the Order as is or in a revised form, such Order will then be accepted and fulfilled by Seller.  

6. Delivery: Seller will deliver the Products as set forth in the applicable Quotation.  Seller assumes no responsibility or liability and will accept no backcharge for loss or damage due to delay or inability to deliver, whether or not such loss or damage was made known to Seller, including but not limited to liability for Seller's non-performance pursuant to Section 21 hereunder or any other cause of any kind beyond Seller’s control. In the event of a shipment of Products having been lost or damaged during transit, Seller's entire responsibility is limited to re-shipping the Products to Buyer and using Buyer's preferred and reasonable method of shipment at Seller’s expense.  

7. Products Acceptance Period: Except for the purchase of training courses whereby no warranties exist, Buyer and Seller agree that all Products provided per these Terms will be deemed accepted by Buyer thirty (30) days after delivery. Nothing in this paragraph will affect any warranty period for the Products covered by the EULA or a variation otherwise referenced in the Quotation.

8. Disclaimer of Warranties:  EXCEPT AS SET OUT IN THE EULA, ALL PRODUCTS PURCHASED UNDER THESE TERMS OR ANY ORDER, OR ANY PURCHASE BETWEEN THE SELLER AND BUYER ARE PROVIDED “AS IS.” THE SELLER MAKES NO OTHER REPRESENTATIONS AND GRANTS NO WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE. SELLER SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ALL IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

9. Limitation of Liability: TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT, REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE), SHALL THE SELLER BE LIABLE TO BUYER FOR ANY DIRECT OR INDIRECT LOSS OF PROFIT, LOSS OF USE, LOSS OF ANCTICIPATED SAVINGS, LOSS OF ANTICIPATED REVENUE, LOSS OF GOODWILL, LOSS OF DATA, REGULATORY FINES, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY LOSSES OR DAMAGES ARISING OUT OF THESE TERMS OR THE SALE OF THE PRODUCTS TO THE BUYER, WHETHER OR NOT SUCH CLAIMS, LOSSES, OR DAMAGES WERE REASONABLY FORESEEABLE TO THE SELLER. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL THE SELLER’S LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR THE SALE OF PRODUCTS TO THE BUYER EXCEED THE PURCHASE PRICE PAID BY BUYER FOR THE SPECIFIC PRODUCTS WHICH GAVE RISE TO THE CLAIM.

10. Confidential Information:  Buyer agrees to hold any Confidential Information (as defined below) it obtains as a result of purchasing the Seller’s Products in confidence and, unless required by law, not to make the Confidential Information available to any third party or to use the Confidential Information for any purpose other than the business activities for which the Buyer is given access to the Confidential Information. Buyer agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of these Terms. For purposes of these Terms, "Confidential Information" refers to all non-public verbal or written information, including electronically transmitted information, which refers to Seller’s business, technology, services, and products or that of one of its subsidiaries or affiliates and is disclosed to the Buyer for purposes of purchasing the Seller’s Products. This includes, but is not limited to, product data, business plans, drawings, reports, inventions, notifications, designs, marketing strategies, price calculations, financial programs, product ideas, production processes, prototypes, suppliers list, business secrets, and other know-how and information. This Section shall not apply to information which is (i) in the public domain, (ii) already known to the Buyer, (iii) developed independently or (iv) received from a third party without similar restriction and without breach of these Terms or a similar agreement.

11. Export Laws:  Buyer agrees to comply with all export and re-export control laws and regulations, as may be applicable to the purchase of the Products hereunder, including without limitation the Export Administration Regulations and the International Traffic in Arms Regulations. Therefore, Buyer shall not (a) permit any third party to access or use the Products in violation of any U.S. law or regulation; or (b) export the Products or otherwise remove the Products from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Buyer shall not permit any third party to access or use the Products, or export the Products to, a country subject to a United States embargo.  

12. Taxes:  The amount of any sales, excise, or other taxes, if any, applicable to the Products shall be added to the purchase price and shall be paid by Buyer, unless Buyer provides Seller with an exemption certificate or direct pay authority acceptable to the taxing authorities. Any taxes which Seller may be required to pay or collect with respect to the sale, purchase, delivery, storage, processing, use, or consumption of any of the Products, including taxes upon or measured by the receipts from the sale thereof, shall be charged to the Buyer’s account. Buyer agrees to promptly pay the amount to Seller upon demand.

13. Severability:  These Terms shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared these Terms and any uncertainty or ambiguity shall not be interpreted against any one party. If any provision hereof is held to be illegal, invalid, or unenforceable under any present or future laws, such provision shall be fully severable and these Terms shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never been made a part hereof. The remaining provisions herein shall remain in full force and effect and shall not be affected by such illegal, invalid, or unenforceable provisions or by their severance from these Terms.  

14. Set-Off:  Buyer shall not be entitled to set-off any amounts it is due against any amounts due Seller in connection with any specific Order or sale of Products from the Seller to the Buyer.

15. Governing Law:  These Terms and the Seller’s sale of the Products to the Buyer shall be governed in all respects by the laws of the State of Arizona, United States, without giving effect to principles of conflicts of law, whose courts shall have sole jurisdiction to all matters arising from these Terms. The parties agree that the UN Convention on the International Sale of Goods shall not apply to these Terms or any of the transactions contemplated by either.  

16. Time Limits for Bringing Claims:  All claims or actions, regardless of form, arising out of or related to the Seller’s sale of Products to the Buyer must be filed within the applicable statutory period, but in no event more than six (6) months after the Seller shipped or provided the Products in question.  

17. Non-Waiver:  Seller's failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of any of Seller's rights or remedies hereunder, nor of its respective right to insist upon the strict performance of the same or any other term herein in the future. No waiver of any term or condition hereunder shall be valid unless in writing and signed by Seller or Buyer, as the case may be.

18. Assignment:  Buyer may not assign, transfer, sub-contract, or otherwise part with any of its obligations under the Terms without the Seller’s prior written consent, such consent not to be unreasonably withheld.

19. Notices:  Any notice or communication required or permitted to be given by either party under these Terms shall be in writing and sent by registered or certified mail, return receipt requested, or by confirmed facsimile transmission or by an overnight delivery service to Seller at the address provided in the Quotation or to the Buyer at the address provided in the Order.

20. Survival:  Sections 3, 4, 8, 9, 10, and 16 will survive the expiration or termination of these Terms or the Quotation.

21. Force Majeure:  Seller shall not be liable to Buyer for any failure to perform or other loss due to unforeseen circumstances or causes beyond its control, including without limitation acts of God, strikes, material or transportation shortages, natural casualties, governmental regulations, war, fire, flood, disasters, and civil unrest.

22. Entire Agreement: These Terms and the other Seller documents referred to herein (such as the Seller’s Quotation, Statement of Work, the EULA, if applicable, and any other document which Seller has attached or referenced in its transaction documents), constitute the entire, complete, and exclusive agreement between the Seller and Buyer with respect to the subject matter hereof and contain all the terms and conditions of sale.

23. Additional Terms for Seller Events:  If the Order or Quotation involves registration for public Seller Events (hereinafter referred to as “Seller Events” or “Event”) then the following additional terms shall apply to the sale of the Products:

    1. Registrations must be used within 24 months of purchase or will be forfeited.

    2. Travel & Accommodations: Attendees are responsible for their own travel arrangements and hotel reservations.

    3. Substitutions: Substitutions are allowed provided that Seller is notified prior to the Event start date.

    4. Cancellations: Cancellations received up to 10 working days prior to the Event start date will be entitled to a refund of the registration fee. After this period, all cancellations will be subject to the entire fee. If purchasing a software/training bundle, seminar cancellations are not refunded; however, you may substitute another attendee or transfer to another course (see "Transferring" below).

    5. Transferring: Provided that the Seller receives notification prior to the Event start date, Buyer may transfer to another scheduled Event once at no cost; a small fee will be assessed for each additional transfer. If the price for the new Event is higher, Buyer will be billed for the difference. There are no refunds when transferring to an Event with a lower fee.

    6. No Shows: Registrants who do not attend the Event and who do not notify the Seller prior to the start date will be subject to the full registration fee and will not have the ability to transfer the registration.

    7. Event Cancellation: Although unlikely, the Seller reserves the right to cancel an Event at any time up to 2 weeks prior to the start date at the Seller’s discretion, or at any time prior to or during the course due to circumstances outside the Seller’s control (including per Section 21 of these Terms). If this occurs, Buyer will automatically be transferred to the next upcoming Event. If transfer is not acceptable, registration fees will be refunded upon request. The Seller is not responsible for any other costs that Buyer may incur, including non-refundable airline tickets.

    8. Video/Photograph Disclaimer: By registering for an Event, Buyer recognizes that the Seller may occasionally take photos or video footage of the Event and Buyer hereby agrees to the Seller’s video/photograph disclaimer policy which can be found at /content/hbkworld/global/en/migration/prenscia/en/photo.html.

    9. All Courses Use Computers: For an Event held at the HBM Prenscia Training Facility in Detroit, computers will be available to use free of charge. In some other venues, the Seller may offer to provide a PC for an additional rental fee (indicated when you register for the course if available). For all other situations, please plan to bring a laptop; you will receive instructions to prepare it with the software that will be needed.

    10. Seminar Fee Includes: Lectures provided by the Seller’s experienced pool of instructors, lecture notes and other course handouts, evaluation copies of the Seller’s software, and lunch and refreshments. A certificate of attendance will be provided. Attendees are eligible for 0.1 Educational Units per contact hour and the applicable number of Certified Reliability Professional course credits.

    11. ARDC Registration Fee Includes: Attendance to the Buyer’s choice of presentations, access to the Event proceedings and any other handouts, and a variety of food options and refreshments served during breaks (Consult the Event program for specific details.) A certificate of attendance will be provided. Attendees are eligible for 0.1 Educational Units per contact hour and 1 Certified Reliability Professional course credit.