MetricTest Terms and Conditions of Sale, Rental or Service

By executing the Quote or other related document to which these terms are attached or by delivering an order for the hardware or software ("Products") or services for equipment ("Services") identified in such Quote, the MetricTest customer ("Customer") agrees with Metric Equipment Sales, Inc., dba MetricTest ("MetricTest"), that the following applicable terms (the "Terms") together with the Quote, any applicable MetricTest warranty and any other related MetricTest document to which the Terms are attached, set forth the entire agreement (the "Agreement") between the parties regarding the Product sale or rental or Services delivery, as applicable. The Terms consist of Sections 1-8 below and (a) for Product sales transactions, including "finance leases" ("Sales"), the terms in Section I, (b) for Product rental transactions ("Rentals"), the terms in Section II, or (c) for Services transactions, the terms in Section III. Notwithstanding the above, the Terms do not apply to a Quote for a lease of Products to Customer by a third-party financing entity arranged by MetricTest or to a Quote for the purchase of extended calibration services or an extended repair contract. Such transactions are governed by a separate agreement between the parties.

Any terms or conditions in Customer's purchase order in addition to or different from the Agreement, are expressly rejected and of no force or effect and will not become part of the Agreement.

1. Orders. Customer agrees to purchase or rent, as applicable, the Products, or to purchase the Services, in each case from MetricTest according to the Terms, for the prices indicated in the Quote. Customer must pay all amounts due under the Agreement in US dollars to the payment address noted on the applicable invoice. Customer is deemed to have accepted each Product or Service unless Customer notifies MetricTest of non-acceptance within 7 days of Customer's receipt of such Product or Service.
   
2. Shipping and Delivery. MetricTest will use reasonable efforts to perform the Services and meet acknowledged shipment dates, but will not be liable for delays. MetricTest will ship all Products for Sales and Rental transactions in its standard containers using a carrier or forwarding agent chosen by MetricTest. All such Product shipments from MetricTest will be delivered F.O.B., MetricTest's shipping location. Customer bears all risk of loss for such shipments from and after the time of delivery to the carrier or forwarding agent, including while in transit to or from MetricTest following rejection or a warranty claim. Except as indicated in any applicable warranty, Customer will pay or reimburse all such freight, insurance and other shipping expenses, including any special packing expenses, whether the Products are being shipped to or from Customer. Customer agrees to insure each such Product against loss or damage, at all times from the point of shipment until MetricTest's receipt upon its return or, if applicable, full payment of the purchase price. Such insurance must be in an amount at least equal to the replacement value of the unit or, if higher, the purchase price of the unit. Customer will furnish proof of such insurance to MetricTest upon request. Shipping terms for equipment subject to Services ("Services Equipment") are described in Section III below.
   
3. Installments; Payment Terms; Taxes. If MetricTest ships or delivers Products or Services under the Agreement in installments, then each such installment will be treated as a separate transaction and will be invoiced separately. However, if Customer defaults, and without limiting MetricTest's remedies, MetricTest may terminate, or suspend performance of, the entire Agreement without liability. Subject to credit approval and unless otherwise indicated in the Quote, Customer agrees to pay invoices 1% discount/10 days or net 30 days from the invoice date. If Customer does not make payment when due, interest will accrue on the unpaid amount from the date due until paid at the rate of 1.5% per month, or, if less, the maximum lawful rate. Prices do not include installation charges, sales, use, excise or other taxes or duties. Customer is responsible for any such applicable charge, tax or duty. If MetricTest has payment concerns regarding Customer, MetricTest may require prior payment or other acceptable security.
   
4. Warranty. Products and Services are warranted, if at all, as indicated in Sections I, II and III below. Any express warranty so provided by MetricTest is exclusive and in lieu of all other warranties. MetricTest makes no other warranties, express or implied, either in fact or by operation of law, statutory or otherwise. MetricTest expressly excludes and disclaims the warranties of merchantability, fitness for a particular purpose and noninfringement.
   
5. Liability Limit. Customer agrees that MetricTest's liability to Customer in any way connected with the Sale or Rental of a Product to Customer or delivery of Services, regardless of the form of action, will not exceed the price paid by Customer for the related Product or Services. In no event will MetricTest be liable for costs of procurement of substitute Products or Services, lost profits, or any special, indirect, consequential or incidental damages, however caused and on any theory of liability, arising in any way out of the Sale or Rental of Products or delivery of Services to Customer. This limitation will apply even if MetricTest has been advised of the possibility of such damages and notwithstanding any failure of essential purpose of any remedy.
   
6. Software. Customer acknowledges that all software, including software included in a Product, and accompanying documentation (collectively "Software") obtained by Customer from MetricTest are licensed (not sold) to Customer on the terms of the license agreement accompanying such Software. Any references to "purchases" or "rental" of Software signify only the purchase or rental, as appropriate, by Customer of the rights granted under such license agreements. Customer agrees to comply with such license agreements.
   
7. Customer Indemnity. Customer agrees to indemnify, hold harmless and defend MetricTest from any and all claims, damages, costs and expenses (including attorneys' fees) arising out of the Products or Services Equipment and their use or operation, including strict liability claims. Such indemnity will not apply to claims based on the actual gross negligence or willful misconduct of MetricTest.
   
8. Miscellaneous.
   
   1. Entire Agreement; Law; Jurisdiction. The Agreement constitutes the entire agreement between MetricTest and Customer with respect to the matters described therein. The Agreement is governed by the laws of the State of California, other than its conflicts of law rules, and not by the United Nations Convention on Contracts for the International Sale of Goods. Any suit brought regarding the Agreement (other than to enforce a judgment) will be brought in the federal or state courts in the districts which include Hayward, California. Customer hereby agrees and submits to the personal jurisdiction and venue of such courts.
      
   2. Credits. Customer may apply any credits (other than Rental credits for the purchase of an item) owed to it by MetricTest to future Sales or Rental transactions with MetricTest. Alternatively, upon written request from Customer, MetricTest will promptly refund such credit to Customer. Any credits which are unused or unrefunded 6 months after availability are deemed forfeited.
      
   3. Attorney's Fees. The prevailing party in any suit to enforce the Agreement will be entitled to an award of its related costs and expenses, including attorneys' fees.
      
   4. Survival. Sections 2, 3, 4, 5, 7 and 8 will survive the expiration or termination of the Agreement. In addition, depending on the type of transaction, the following Sections will survive: (i) for Sales transactions, Sections I(b) and (d); (ii) for Rental transactions, Sections II(e), (f) and (g); and (iii) for Services transactions, Section III(d). Termination or expiration of the Agreement will not affect payment obligations which arose prior to or, if applicable, after termination or expiration.
      
   5. Waiver. Neither party's waiver of any right or remedy on one occasion will be deemed a waiver of such right or remedy on any other occasion.
      
   6. Changes. MetricTest may substitute and modify the Products and Services without notice to Customer, if such substitutions and modifications do not materially affect the form, fit or function of the applicable Product or Services.
      
   7. Return Process. Before returning any Product or Services Equipment to MetricTest (other than return at the end of a Rental), Customer must obtain from MetricTest a return materials authorization number.
      
   8. Export Restrictions. All Products and Metric's obligations are subject to export restrictions. Customer may not export, re-export, or transfer, directly or indirectly, any Product, Services Equipment or technical data provided under the Agreement, to any country or user to which such actions are restricted by United States or local country law or regulation, without first obtaining any required governmental license, authorization, certification or approval and providing Metric any required end user certification.
      
   9. Sales Terms. To the extent the Quote or another related document indicates the Agreement is a Sales transaction:
      (a) Invoices. If the Quote specifies that Customer will pay the purchase price in a single installment or is silent on the issue of installments, then the related invoice will be issued on or about the shipment date. If the Quote or another related document specifies that Customer will pay the purchase price in multiple installments (such as in a finance lease), then the initial installment and a processing fee are due in advance and thereafter the remaining installments are due on the dates and in the amounts specified in the Quote or in related documents provided by MetricTest. However, if Customer breaches the Agreement, MetricTest may declare all such installments immediately due.
      (b) Title; Security. Title to the Products transfers to Customer upon full payment of the purchase price therefor. Customer hereby grants to MetricTest a purchase money security interest in the Products and all proceeds, to secure payment of the purchase price. Customer agrees to promptly execute any documents requested by MetricTest to document, perfect and/or protect such security interest. MetricTest may enforce such security interest if Customer breaches the Agreement. Following such breach, Customer agrees to assemble the Products as requested by MetricTest.
      (c) Cancellation and Return. If the Quote indicates that a particular Product is a "Custom order", then the Agreement may not be cancelled or rescheduled for that Product for any reason. If the Quote indicates that a particular Product is a "Special order", then Customer may
      (i) extend the delivery date up to 15 days from the original delivery date without charge, or
      (ii) within 7 days of Customer's receipt of such Product, cancel the Agreement and return the Product, subject to payment of a cancellation fee of 25% of the invoice price (plus shipping charges). All other Product orders may be cancelled or rescheduled and the Products returned to MetricTest for any reason within 7 days of Customer's receipt of such Product at no charge (other than shipping charges). All returned Products must be returned in original condition and, in the case of new Products, original packaging.
      (d) Warranty. MetricTest does not provide a warranty for new Products other than Advantest branded Products. A new Product (other than an Advantest branded Product) is warranted, if at all, only by the manufacturer of such Product. MetricTest may warrant new Advantest branded Products and refurbished Products. If MetricTest warrants such a Product, then the Quote or the "Certificate of Warranty" shipped with the Product will indicate the duration of the warranty. (If the duration specified in the Quote differs from that stated in the Certificate of Warranty, then such certificate controls.) The terms of any such warranty are available from MetricTest or at www.metrictest.com. If the Quote does not indicate that a Product is warranted, then such Product is provided by MetricTest "AS IS" and without any express or implied warranty of any kind, including warranties of merchantability, fitness for a particular purpose and noninfringement, all of which are expressly disclaimed. The foregoing does not negate any warranty provided by the manufacturer of a new Product.
      
   10. Rental Terms. To the extent the Quote indicates the Agreement is a Rental transaction:
       (a) Terms. Unless otherwise stated in the Quote, the minimum Rental period is 30 days. The Rental period commences and rent begins to accrue from the date of shipment. The Rental period and the accrual of rent continue until the Products are received by MetricTest at the end of the Rental. Customer will pay rent to MetricTest in advance of each 30-day Rental period. Invoices will be issued every 30 days starting on the date of shipment. If Products are shipped in installments, each installment will be deemed a separate Rental.
       (b) No Sale. The Agreement evidences a rental of Products, not a sale. MetricTest retains title to the Products. Customer agrees that MetricTest may file protective UCC filings.
       (c) Use and Maintenance. Customer may use the Products only for the purposes and in the manner intended by the manufacturer thereof. Other than the services for which MetricTest is responsible as provided in Section II(d) below, Customer is responsible for all maintenance of the Products.
       (d) Warranty. During the Rental term, MetricTest agrees to repair, replace or recalibrate any Product which does not substantially conform to the manufacturer's specifications. Such remedy will be at Customer's expense if such is required due to Customer's neglect, misuse or abuse or if the Product was serviced by anyone other than MetricTest. Customer must ship Products in need of repair, replacement or recalibration to MetricTest. Shipping charges will be MetricTest's responsibility, unless Customer is responsible for the related remedy as provided above. Customer bears all risk of loss for Products while in transit to or from MetricTest.
       (e) Return. Subject to minimum Rental term limits, Customer may terminate its Rental for a particular unit at any time by returning such item to MetricTest. Subject to Customer's exercise of its purchase option, if any, Customer will return each Product to MetricTest at the end of the Rental thereof, properly packaged and in the same condition as delivered, ordinary wear and tear excepted. If Customer fails to so return any Product, then Customer will, upon demand, pay to MetricTest the "advertised" price for such unit as indicated on the Quote. If the return of Products after the minimum Rental term results in prepaid rent remaining with MetricTest, such amount may be credited or refunded to Customer as provided in Section 8(b).
       (f) Default. If Customer breaches the Agreement, MetricTest may declare the Agreement in default and require Customer to immediately return the Products to MetricTest in accordance with Section II(e) above. Such return will not relieve Customer of its obligation to pay rent or any other amounts which accrued prior to such return, including unpaid rent for the minimum Rental term, as well as any other amounts payable to MetricTest, including amounts for damage to the Products.
       (g) Purchase Options. Customer may purchase the Products at the end of the Rental term only if the Quote indicates that Customer is entitled to a purchase option and Customer did not breach the Agreement. Any purchase of Products following a Rental will be "AS IS, WHERE IS" and without any warranty. The purchase option, if any, will be either:
       (i) Month-to-Month Rental Program with Buyout Option (MTM). If the Quote specifies that Customer has a "MTM" purchase option for a particular Product then: Customer may purchase such Product at the end of the Rental term for the "advertised" price of such unit as indicated in the Quote. After the first 90 days of the Rental term, Customer may credit 20% of each Rental payment thereafter made for such unit toward the purchase price of such unit, with a maximum credit of 85% of such price. Such credit may be applied only to the unit to which the Rental payments relate. Customer's breach of the Agreement voids any credit accrual; or
       (ii) Rent-to-Own Program (RTO). If the Quote specifies that Customer has a "RTO" purchase option for a particular Product then: Customer may purchase such Product at the end of the Rental term specified in the Quote for 25% of the "advertised" price of such unit as indicated in the Quote. If Customer cancels its Rental of such Product prior to the end of the minimum Rental term specified in the Quote, then Customer is obligated to pay the rent attributable to the balance of such minimum term. If Customer does not exercise the purchase option, Customer is not entitled to any refund or credit.
       
   11. Services Terms. To the extent the Quote indicates the Agreement involves the delivery of Services:
       (a) Terms. All Services will be performed at MetricTest's facilities. Customer is responsible for shipping, at its expense, the Services Equipment to MetricTest. MetricTest will return such equipment to Customer at Customer's expense. Customer bears all risk of loss for the Services Equipment at all times. MetricTest hereby transfers to Customer title to any parts it purchases from MetricTest in connection with the Services. Such transfer is effective upon MetricTest's receipt of the related payment.
       (b) Price. The prices for the Services are as specified in the Quote. However, additional Services may be necessary to resolve all issues with the particular Services Equipment item. All Services, other than Services specified to be on a time and materials basis, are provided on a fixed price basis. In exchange for an evaluation fee, MetricTest will provide an estimate, which includes the labor and (unless otherwise specified) parts for such repair. If Customer elects to have MetricTest repair such item, then the evaluation fee will be included in the repair charges. The actual repair costs may exceed any estimate provided. MetricTest will make reasonable efforts to inform Customer in advance when the repair costs exceed any such estimate. However, Customer is obligated to pay MetricTest even if it fails to provide such notice. All parts charges are at MetricTest's standard rates. Invoices for Services fees will be issued on or about the date of delivery of such Services.
       (c)Cancellation. Customer may cancel or reschedule the delivery of Services at any time, provided that Customer is liable for incurred costs, such as parts ordered by MetricTest for such Services, and any Services then performed. MetricTest may cancel or reschedule the delivery of Services at any time upon notice to Customer.
       (d) Warranty. MetricTest warrants, for 90 days from return of the Services Equipment to Customer, that (i) the completed Services corrected the particular, identified problem, and (ii) all parts provided to Customer as part of such Services will be free from significant defects in materials and workmanship under normal use. If Customer believes that MetricTest has breached either such warranty, then it must notify MetricTest within such 90-day period and, if requested by MetricTest, ship the affected Services Equipment unit or part to MetricTest, freight prepaid. If MetricTest confirms such breach, it will, at its option, reperform such Services or repair or replace such part at no charge to Customer, or refund the amount paid for the defective Services or part. Shipping charges to return such item to Customer will be paid by MetricTest, unless it does not confirm the breach of warranty (in which case Customer is responsible for such charges). The remedies set forth above are Customer's sole and exclusive remedies for breach of any warranty relating to Services. MetricTest does not warrant that the Services specified in the Quote will resolve all issues with the particular Services Equipment item.