MOXTEK, Inc
Terms and Conditions of Sale

        
  1. Definitions.              
    1. “Agreement” means a binding contract for Buyer to purchase, and Moxtek to sell, Product per Moxtek’s Terms of Sale per agreed upon prices, quantities, and delivery date.
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    2. “Buyer” means the party purchasing products from Moxtek.
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    3. “Moxtek” means Moxtek, Inc., a Delaware corporation, having offices at 452 West 1260 North, Orem, Utah 84057, USA.
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    4. “Order Confirmation” means a confirmation sent to Buyer to confirm the contract that was formed by Moxtek’s Quotation as an offer for sale and Buyer’s purchase order as an acceptance of Moxtek’s Quotation.
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    5. “Product” means the product or products designated in Moxtek’s Quotation, Buyer’s purchase order, and Moxtek’s Order Confirmation.
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    6. “Quotation” means Moxtek’s offer to sell Product per the terms of these Terms of Sale.

  2. Contract Formation. Buyer may accept Moxtek’s Quotation with Buyer’s purchase order. Any acceptance is EXPRESSLY CONDITIONAL on acceptance of these Terms of Sale. The Order Confirmation is intended to confirm a contract formed by Moxtek’s Quotation and Buyer’s purchase order. If no Quotation was sent, the Quotation had expired, or for any other reason no contract was formed by exchange of Moxtek’s Quotation and Buyer’s purchase order, the Order Confirmation may be considered as an acceptance of the buyer’s purchase order EXPRESSLY CONDITIONAL upon Buyer’s assent to these Terms of Sale.

  3. Delivery. Product will be shipped by carrier F.O.B. Moxtek’s factory, Orem, Utah. The Buyer is responsible for shipping and insurance charges. Moxtek may ship using Buyer’s account. Moxtek may in its discretion ship Product under this agreement in multiple lots to be separately accepted.

  4. Performance Dates. Dates in this Agreement represent Moxtek’s good faith estimates for delivery and other performance. Moxtek is not liable for failing to meet such dates. If Moxtek is more than 30 days late in meeting a date, Buyer’s exclusive remedy is to cancel the applicable order or portion thereof (prior to tender of delivery by Moxtek) without further liability of Moxtek.

  5. Payment. Moxtek may invoice Buyer after Moxtek’s tender of delivery of Product. Buyer will pay Moxtek in U.S. dollars within 30 days from the date of Moxtek’s invoice. Buyer agrees to pay late charges of 1½ percent per month on any overdue balance and to reimburse Moxtek for all costs and expenses, including attorney’s fees, incurred in collecting any overdue amounts or otherwise enforcing this Agreement, whether or not legal action is instituted. All payments due must be made without deduction for taxes, assessments, duties, surcharges, or other charges that may be imposed on either the Buyer or Moxtek by any government with respect to any amounts payable to Moxtek pursuant to this Agreement, and such taxes, assessments, duties, surcharges or other charges must be assumed by and are the sole responsibility of the Buyer. Moxtek may defer shipments or refuse to ship any further Product if Buyer fails to pay any invoice in accordance with the terms of this contract.

  6. Inspection. Upon request, Moxtek agrees to provide Buyer with an opportunity to inspect Product prior to shipment. In any event, Buyer agrees to promptly inspect Product upon shipment. Buyer must notify Moxtek of rejection of Product within fifteen (15) days of receipt or prior to the date on which payment is due hereunder, whichever occurs first, or such Product will be deemed to have been accepted by Buyer.

  7. Limited Warranty. Seller warrants the Product in accordance with “Moxtek, Inc. X-Ray Products Limited Warranty” for sale of Moxtek’s x-ray products or under “Moxtek, Inc. Optics Products Limited Warranty” for sale of Moxtek’s optics products, incorporated herein by reference (“Warranty”). Except where otherwise subject to an enforceableexclusive remedy in this Agreement, any claim for breach of this Agreement or for non-conforming Product is subject to the exclusive remedies in, or the exclusion and limitationof damage provisions of the Warranty.

  8. Proper Product Use and Product Safety. Buyer agrees to use Product only in the manner and for the purpose for which the Product is intended, and in compliance with the technical and safety requirements for proper handling and use of the Product as specified by Moxtek or under applicable law. Buyer acknowledges awareness of the technical and safety requirements for proper handling and use of Products. Buyer shall ensure that Buyer’s employees and customers are adequately informed and trained in the proper handling, use and safety of Products.

  9. Force Majeure. In the event of breakage of equipment, terrorism, accident, war, fire, flood, strike, labor trouble, riot, act of governmental authority, good faith compliance with governmental regulation, act of God, contingencies beyond the reasonable control of Moxtek, or inability to obtain, on terms deemed by Moxtek to be practicable, any raw material (including energy source) used in connection with the Products ordered hereunder, or other commercial impracticability, any resulting delay in performance or non-performance of Moxtek will not constitute a breach of the parties’ Agreement. Moxtek will notify the Buyer seasonably of any force majeure as required by law, and Buyer may terminate any unexecuted portion of the Product under this Agreement, or modify this Agreement by agreeing to take a lesser allocation of Moxtek’s production (as determined by law).

  10. No Waiver. No term or provision hereof will be considered waived and no breach of this Agreement excused unless such waiver or consent is in writing. The waiver or consent to a breach of any provision of this Agreement shall not operate or be construed as a waiver of, consent to, or excuse of any other or subsequent breach.

  11. Arbitration. This Agreement shall be subject to the laws of the State of Utah without any regard to any conflicts of law provisions. Any controversy or claim arising out of or relating to this Agreement or the breach of this Agreement shall be settled by arbitration in Orem, Utah, in accordance with the Rules of the American Arbitration Association. This Agreement shall be enforceable by law and the judgment or any award made by the arbitrators may be entered in any court having appropriate jurisdiction.

  12. Limitations of Actions. Any arbitration or other action for breach of this Agreement, including the Warranty, must be commenced within one year after the breach occurs.

  13. Severability. If any provision of this Agreement is found to be illegal, invalid, or unenforceable by a court or tribunal, it is agreed that the provision in question shall be reduced or otherwise modified by such court or tribunal to achieve as nearly as possible the same economic effect as the original provision, and the legality, validity, and enforceability of the remaining provisions of this Agreement shall not be affected or impaired.

  14. Order Changes and Cancellations. No order changes or cancellations are allowed if such change or cancellation is requested within four weeks of the scheduled delivery date. If such change or cancellation is requested more than four weeks from the scheduled delivery date, then a change or cancellation may be allowed per Moxtek’s sole discretion.