Terms

Warranty and Terms and Conditions

Warranty
Protek Power North America's warranty period is defined as three years from date of shipment. Under all conditions the liability shall be limited to the repair or, at Protek Power North America's sole discretion, substitution of goods which prove to be defective. In any event, there shall be no further remedies or claims against Protek Power North America. In particular, the customer has no right to rescind a contract, ask for reduction of price or any compensation, such as compensation for any special, actual, consequential, incidental or indirect damages, or any loss of profit, revenue or data based upon non-performance or breach of any of its obligations, whether based in contract, tort, or otherwise. Further, Protek Power North America shall not be liable for damages resulting from improper use, incorrect implementation, or shipments of incorrect part numbers to the customer or third parties. Particularly, the misuse where product specifications, operating instructions or specifications set forth are exceeded or violated by the customer or third parties.

The warranty shall immediately terminate if the customer or a third party change or try to repair a product without the prior written consent of Protek Power North America. The customer agrees to be fully liable for damages resulting from its own instructions for product usage. The customer shall indemnify and hold harmless Protek Power North America from any and all loss, liability, damage, cost or expense to the extent arising out of any claims or suits brought by third parties against the customer by reason of any breach of customer covenants or obligations contained in this warranty or any other agreement between the parties.

Under no circumstances does Protek Power North America represent that a specific product will work in a customer's application. It is the sole responsibility of each customer to thoroughly test each product and part number under their unique parameters and environments to ensure a product will work properly and reliably.

All defects of material or shipments errors shall be immediately notified to Protek Power North America. Any shipment errors, as in Protek Power's customer shipping the incorrect part number to their customer, will have no liability to Protek Power North America. It is the sole responsibility of the customer to verify and test that part(s) received are the correct parts ordered by the customer.

Return to Stock Request
It is not our practice to allow product to be returned to stock for credit only. Requests for stock return will be based upon product history/usage. Under special circumstances, if a return request is approved, the return will require a restocking fee and an offsetting order along with any freight and handling charges associated with the prior shipment of that order.

Liability for Medical Product Used in Life Support or Life Sustaining Applications
Protek Power North America products are not authorized for use as critical components in Life Support devices or systems without the express written approval of senior management and general counsel. Life support devices or systems are defined as devices or systems which, (a) are intended for surgical implant into the body, or (b) support or sustain life, and whose failure to perform, when properly used in accordance with instructions for use provided, can be reasonably expected to result in a significant injury to the user. A critical component is defined as is any component of a life support device or system whose failure to perform can be reasonably expected to cause the failure of the life support device or system, or to affect its safety or effectiveness.

Protek Power North America Commercial Terms and Conditions of Sale
THE SALE OF PRODUCTS AND SERVICES ("PRODUCTS") BY PROTEK POWER NORTH AMERICA ARE SUBJECT TO THESE TERMS AND CONDITIONS (“AGREEMENT”) REGARDLESS OF OTHER OR ADDITIONAL TERMS OR CONDITIONS THAT CONFLICT OR CONTRADICT THIS AGREEMENT IN ANY PURCHASE ORDER, DOCUMENT, OR OTHER COMMUNICATION ("ORDER"). PREPRINTED TERMS AND CONDITIONS ON ANY CUSTOMER (“CUSTOMER”) DOCUMENT (FOR EXAMPLE: PURCHASE ORDERS OR CONFIRMATIONS) AND/OR PROTEK POWER NORTH AMERICA’S FAILURE TO OBJECT TO CONFLICTING OR ADDITIONAL TERMS WILL NOT CHANGE OR ADD TO THE TERMS OF THIS AGREEMENT.

1. ORDERS. All Orders are subject to acceptance by Protek Power North America. Protek Power North America reserves the right to allocate the sale of Products among its customers. Orders for special, build-to-order, custom, value-added and Products specifically identified by Protek Power North America as non-standard are non-cancellable and nonreturnable (“NCNR”). The Customer may not cancel or reschedule Orders for standard Products without Protek Power North America’s consent.

2. PRICES. Protek Power North America’s quoted prices apply for 30 days or as otherwise stated in its quote. Protek Power North America may increase prices if Protek Power North America’s costs increase or other circumstances beyond Protek Power North America’s reasonable control. Prices are subject to change at any time. Prices are for Products only and do not include taxes, impositions and any other charges, fees, shipping charges and duties imposed by any government authority. Customer is responsible for any additional fees and taxes.

3. TERMS OF PAYMENT. Upon our Accounting Department's approval for Customer's open terms payment, Payment of the total invoice amount, without offset or deduction, is due 30 days from the invoice date. On any past due invoice, Protek Power North America may charge interest from the payment due date to the date of payment (at 1 ½ % per month), plus reasonable attorney fees and collection costs. Protek Power North America may change the terms of Customer’s credit at any time. Protek Power North America may apply payments to any of Customer’s accounts.

4. DELIVERY AND TITLE. Customer is responsible for all shipping costs and any applicable surcharges. Title and risk of loss pass to Customer upon delivery of the Products to the carrier. Protek Power North America’s delivery dates are estimates only and Protek Power North America is not liable for delays in delivery. Protek Power North America reserves the right to make partial shipments and Customer will accept delivery and pay for the Products delivered. A delayed delivery of any part of an Order does not entitle Customer to cancel other deliveries.

5. PRODUCT RETURNS. Customer cannot return Products without a return material authorization ("RMA") number. RMAs will be issued only for damage, shortage, or other discrepancy to Products created solely by Protek Power North America and only if Customer notifies Protek Power North America in writing of any damage, shortage, or other discrepancy to Products within 10 days after delivery. RMAs will not be granted for damage, shortage, or other discrepancy created by Customer, the carrier or freight provider, or any other third party. Returned Products must be in original shipping cartons or equivalent. Customer must return all Products, freight prepaid, as specified in the RMA and pay any restocking charges. At Protek Power North America’s discretion, Protek Power North America will return all Products not eligible for return to Customer, freight collect, or hold Product for Customer’s account at Customer’s expense. PRODUCT RETURN TO STOCK REQUEST- It is NOT Protek Power North America’s practice to allow product to be returned to stock. Requests for stock return will be based upon product history/usage. Under special circumstances, if a return request is approved, the return will require a restocking fee and an offsetting order along with any freight and handling charges associated with the prior shipment of that order.

6. PROTEK POWER NORTH AMERICA's LIMITED WARRANTY. Protek Power North America states a two-year warranty for products. Protek Power North America warrants the Products will confirm to published specifications. PROTEK POWER NORTH AMERICA MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED. PROTEK POWER NORTH AMERICA MAKES NO WARRANTY OF MERCHANTABILITY, FITNESS FOR PURPOSE OR NON-INFRINGEMENT. If Products do not meet the published specifications the Product Warranty Support will be, at Protek Power North America’s choice: (1) repaired or (2) replaced at no cost to Customer. Customer must return Products to Protek Power North America, along with acceptable proof of purchase, within the warranty period specified by the manufacturer with freight charges prepaid.

7. LIMITATION OF LIABILITY. PROTEK POWER NORTH AMERICA IS NOT LIABLE FOR AND CUSTOMER IS NOT ENTITLED TO ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES; FOR EXAMPLE, LOSS OF PROFITS OR REVENUE, LOSS OF DATA, LOSS OF USE, REWORK, MANUFACTURING EXPENSE, INJURY TO REPUTATION, OR LOSS OF CUSTOMERS. CUSTOMER’S RECOVERY FROM PROTEK POWER NORTH AMERICA FOR ANY DIRECT DAMAGES WILL NOT EXCEED THE PRICE OF THE PRODUCT AT ISSUE. CUSTOMER WILL INDEMNIFY, DEFEND AND HOLD PROTEK POWER NORTH AMERICA HARMLESS FROM ANY CLAIMS BASED ON; (i)PROTEK POWER NORTH AMERICA’S COMPLIANCE WITH CUSTOMER’S DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS, (ii) MODIFICATION OF ANY PRODUCTS BY ANYONE OTHER THAN PROTEK POWER NORTH AMERICA, OR (iii) USE IN COMBINATION WITH OTHER PRODUCTS. PROTEK POWER NORTH AMERICA PRODUCTS ARE NOT AUTHORIZED FOR USE AS CRITICAL COMPONENTS IN LIFE SUPPORT DEVICES OR SYSTEMS WITHOUT THE EXPRESS WRITTEN APPROVAL OF SENIOR MANAGEMENT AND GENERAL COUNSEL.

8. FORCES BEYOND PROTEK POWER NORTH AMERICA’S CONTROL. Protek Power North America is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond its reasonable control, (for example: acts of God, acts or omissions of the Customer, man-made or natural disasters, epidemic medical crises, materials shortages, strikes, acts of terrorism, delays in transportation, or inability to obtain labor or materials through its regular sources).

9. USE OF PRODUCTS. Products are not authorized for use in critical safety or other applications where a failure may reasonably be expected to result in personal injury, loss of life, or catastrophic property damage. If Customer uses or sells the Products for use in any such applications, Customer acknowledges that such use or sale is at Customer’s sole risk. Customer will indemnify, defend and hold Protek Power North America harmless from and against any and all liabilities and costs arising out of or in connection with such use or sale.

10. EXPORT/IMPORT. Certain Products sold by Protek Power North America and other related technology and documentation are subject to export control laws, regulations and orders of the United States and the export or import control laws and regulations of other countries. Customer will not directly or indirectly export or divert any Products and other related technology and documentation to any third party or country where such export or transmission is restricted or prohibited. Customer agrees it is responsible to obtain any license to export, re-export, or import as may be required.

11. PRODUCT INFORMATION. All Product information is subject to change without notice. Protek Power North America is not responsible for typographical or other errors or omissions in Product information.

12. ELECTRONIC ORDERS. In the event that any part of the purchase and sale of Products utilizes electronic data interchange, internal or third party portal, or any other electronic means (“Electronic Purchase Order”), this Agreement, or any other validly executed agreement between Protek Power North America and Customer, will continue to apply to the purchase and sale of Products between Customer and Protek Power North America.

13. GENERAL.
a. The laws of the Commonwealth of Massachusetts will exclusively govern any dispute between Protek Power North America and Customer. The United Nations Convention for the International Sale of Goods shall not apply.
b. Customer may not assign this Agreement without the prior written consent of Protek Power North America. Protek Power North America or its affiliates may perform the obligations under this Agreement. This Agreement is binding on successors and assigns.
c. This Agreement can only be modified in writing signed by authorized representatives of both Protek Power North America and Customer.
d. Protek Power North America and Customer are independent contractors and agree that this Agreement does not establish a joint venture or partnership.
e. Statements or advice (technical or otherwise) if given without charge, are an accommodation to Customer and Protek Power North America has no responsibility or liability for the content or use of such statements or advice.
f. Protek Power North America’s failure to object to any document, communication, or act of Customer will not be deemed a waiver of any of these terms and conditions.
g. The unenforceability of any of these terms or conditions will not affect the remainder of the terms or conditions.
h. Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses. i. Customer and Protek Power North America will comply with applicable laws and regulations.