QualityGuard™ Terms and Conditions for Calibration - Tsi

Draft of 30 January 2008
APPENDIX A – Test and Measurement Clean and Calibration Service -
SERVICES TO BE PERFORMED
PRODUCTS COVERED UNDER THIS AGREEMENT INCLUDE THE FOLLOWING MODELS
PortaCount Plus 8020 Respirator Fit Testers AeroTrak 9000 Surface Area Monitors
PortaCount Plus 8028 Respirator Fit Testers SidePak AM510 Aerosol Monitors
PortaCount Pro 8030 Respirator Fit Testers Model 4146 Primary Calibrators
PortaCount Pro+ 8038 Respirator Fit Testers Q-Trak 8550 IAQ Monitors
DustTrak 8520 Aerosol Monitors Q-Trak 8551 IAQ Monitors
DustTrak II 8530 Aerosol Monitors Q-Trak 8552 IAQ Monitors
DustTrak II 8531 Aerosol Monitors Q-Trak 8554 IAQ Monitors
DustTrak II 8532 Aerosol Monitors Q-Trak 7565 IAQ Monitors
DustTrak DRX 8533 Aerosol Monitors P-Trak 8525 Ultrafine Particle Counters
DustTrak DRX 8534 Aerosol Monitors
RESPONSIBILITIES OF TSI.
A. SCOPE.
TSI agrees to provide Clean and Calibration Service in accordance with this Calibration Contract while the hardware and software
is operated in conformance with TSI's published specifications, subject to normal use.
B. FACTORY CLEAN AND CALIBRATION SERVICE.
TSI will provide to the Customer Scheduled Clean and Calibration Service at factory-recommended intervals (not less than once
every twelve months) during the term of this Service Agreement. Scheduled Clean and Calibration Service is defined as follows
and includes the listed services:
1. Initial inspection testing and performance verification of Product.
2. Review of written instructions or explanation of problem from customer.
3. Factory Cleaning and Calibration, including:
i. Clean instrument
ii. Inspect and replace consumable components as necessary
iii. Leak check (if applicable)
iv. Calibrate instrument in accordance with TSI standard calibration procedures
1. Zero Check (if applicable)
2. Align Optics (if applicable)
3. Span calibrate gas sensors (if applicable)
4. Calibrate flow rates, voltages, and temperature control (if applicable)
v. Update manual, software and firmware as necessary
vi. Final electrical checkout and performance validation
vii. Provide Calibration Certificate indicating Product is fully functional and operates within factory specifications
4. Technical Support assistance to the Customer by telephone or e-mail during the term of this Calibration Contract.
RESPONSIBILITIES OF THE CUSTOMER.
Throughout the term of this Calibration Contract, the Customer shall maintain the Product within TSI specifications, or in good
working condition. The Customer must follow maintenance procedures as described in the Operations and Service Manual of the
Product. Customers must disclose all hazardous materials used or exposed to the instrument and decontaminate all affected
components prior to TSI servicing. Customer ensures that the instrument is in its original, unmodified configuration prior to TSI
servicing. Customer is responsible for shipping product to TSI Authorized Service Center for Clean and Calibration Service.

Draft of 30 January 2008
APPENDIX B -- TERMS AND CONDITIONS
TSI INCORPORATED SHALL HEREINAFTER BE REFERRED TO AS “SELLER”.
1. PAYMENT; DELIVERY RISK OF LOSS. Unless otherwise agreed, payment is due in U.S. Dollars within 30 days of the date of invoice.
Charges for services are due upon receipt of invoice. Interest in the maximum amount permitted by law may be charged on past due invoices.
Customer shall reimburse TSI for all costs and expenses incurred in the collection of amounts past due, including attorneys' fees. All quoted
delivery dates are approximate and shall commence when TSI has acknowledged receipt of documents required to effect shipment. TSI may
require payment in advance if it believes the financial condition of Customer does not justify shipment, subsequent deliveries, or provision of
services, on the payment terms originally specified. If the Customer becomes bankrupt or insolvent, or a proceeding is brought by or against
Customer under such laws, TSI may cancel any outstanding order, and Customer shall reimburse TSI for its cancellation charges. TSI reserves
the right to ship and to make collection by sight draft.
Unless otherwise agreed, the risk of loss to parts provided pursuant to this Calibration Contract passes to Customer when the parts are
delivered to the carrier, as described in the current INCOTERMS in the case of parts shipped, or when installed if installed by SELER personnel.
Notwithstanding any provision of INCOTERMS or contained herein, equitable title and accession to the parts shall, where permitted by law,
remain with TSI until Customer has paid in full.
2. WARRANTY.
2.1 TSI warrants that:
(a) the services it provides to Customer under this Calibration Contract will be performed in a professional matter, consistent with
industry standards;
(b) spare parts and replacement Supported Equipment provided by TSI under this Calibration Contract will conform to the specifications
for those parts for a period of ninety (90) days after first delivery to Customer.
(c) TSI does not provide any warranty on finished parts manufactured by others or on any fuses, batteries or other consumable materials.
Only the original manufacturer's warranty applies.
In the event of any breach of the foregoing warranties, Customer’s sole remedy, and TSI’s sole obligation will be the reperformance of the
affected service or repair or replacement of the defective spare parts or Supported Equipment during the term of this Calibration Contract.
2.2 THE WARRANTIES SET FORTH IN SECTION 2.1 ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO THE
PRODUCTS AND SERVICES PROVIDED HEREUNDER, EXPRESS OR IMPLIED, WHICH ARE HEREBY DISCLAIMED AND EXCLUDED
BY TSI, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
USE, OR FREEDOM FROM INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
2.3 Limitations of Liability. TSI WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DELAY IN FURNISHING
PRODUCTS OR SERVICES UNDER THIS SERVICE AGREEMENT, OR ANY OTHER PERFORMANCE UNDER OR PURSUANT TO THIS
SERVICE AGREEMENT, OTHER THAN ANY SUCH LOSS OR DAMAGE RESULTING FROM GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF TSI.
2.4 TO THE EXTENT PERMITTED BY LAW, THE EXCLUSIVE REMEDY OF THE USER OR CUSTOMER, AND THE LIMIT OF TSI'S
LIABILITY FOR ANY AND ALL LOSSES, INJURIES, OR DAMAGES CONCERNING THE PARTS OR SERVICES (INCLUDING CLAIMS
BASED ON CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE) SHALL BE THE RETURN OF PARTS TO TSI
AND/OR THE REFUND OF THE PURCHASE PRICE, OR, AT THE OPTION OF TSI, THE REPAIR OR REPLACEMENT OF THE PARTS. IN
NO EVENT SHALL TSI BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES. TSI SHALL NOT BE
RESPONSIBLE FOR INSTALLATION, DISMANTLING OR REINSTALLATION COSTS OR CHARGES. No Action, regardless of form, may be
brought against TSI more than 12 months after a cause of action has accrued. The parts returned under warranty to TSI's factory shall be at
Customer's risk of loss, and will be returned, if at all, at TSI's risk of loss.
2.5 IN NO EVENT SHALL TSI 'S LIABILITY OF ANY KIND (I) INCLUDE ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL LOSSES OR DAMAGES, EVEN IF TSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR
DAMAGE, OR (II) EXCEED THE AMOUNT REMITTED TO TSI UNDER THIS CALIBRATION CONTRACT.
3. INSPECTION: ACCEPTANCE. Customer shall inspect parts delivered or services performed within 15 business days from the date of receipt
of the parts or completion of the services. Within that time Customer shall send Seller a written notice specifying any respects in which the parts
or services are nonconforming. Failure to send a written notice shall constitute a waiver of Customer's claims for any nonconformity that an
inspection, whether or not in fact carried out, should have discovered. Customer is deemed to have accepted delivered parts and services on
terms set forth herein, unless within 15 business days of receipt of the parts Customer sends a written notice of rejection that provides detailed
grounds for rejection. No order may be canceled or altered by Customer except on terms and conditions accepted in writing by the Seller. Seller
may impose reasonable cancellation charges. Parts may not be returned for credit unless pre-approved in writing by Seller. A restocking charge
will be applied.
4. CAUSES BEYOND TSI'S CONTROL. TSI will be released without any liability from the performance of its obligations under this Calibration
Contract to the extent an event or condition not within TSI’s control prevents that performance or makes that performance so difficult or costly
that it is commercially unreasonable.
5. SAFETY AND EXPRESS INDEMNIFICATION. During the life of goods sold, Buyer agrees to use its best efforts to ensure that all safety
information provided by TSI is provided to all users (employees and independent contractors). This may include warning labels, instruction
manuals, and training users in the safe installation, use and maintenance of the goods. Buyer agrees to defend, protect, indemnify and hold TSI
harmless from and against all claims, losses, expenses, damages and liabilities to the extent caused by Buyer's negligence, including Buyer's
failure to comply with the aforementioned safety obligations.

Draft of 30 January 2008
6. GENERAL.
6.1 This Calibration Contract does not make either party the employee, agent or legal representative of the other for any purpose
whatsoever. Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf
of or in the name of the other party. In fulfilling its obligations under this Calibration Contract, each party will be acting as an independent
contractor.
6.2 Customer may not assign or otherwise transfer its rights and obligations under this Calibration Contract. A successor to TSI by
assignment of this Calibration Contract, or to the assets or business of TSI by merger, operation of law, purchase or otherwise, will acquire all
interests of TSI hereunder. Any prohibited assignment will be null and void.
6.3 Any notice or other communication or payment herein required or permitted to be given shall be deemed sufficient if and when
personally delivered in writing or if and when given by United States registered or certified mail, postage prepaid, return receipt requested,
properly addressed to the respective addresses of the parties as written below, or such other address as the parties may designate by future
notice. Notices so given will be effective upon the earlier to occur of (i) receipt by the party to which notice is given, or (ii) the fifth (5 th )
business day following the date such notice was posted, whichever occurs first.
6.4 Any government tax, fee, duty or charge on the sale, purchase, delivery or use of the goods and/or services sold hereunder shall be
paid by Buyer, in addition to the purchase price, unless otherwise agreed. Certain goods are subject to international export control regulations.
Buyer shall be responsible for compliance with all regulations related to the export of goods to end-users.
6.5 This Calibration Contract together with Exhibit A attached and incorporated as an integral part of this Calibration Contract,
constitutes the entire Calibration Contract between the parties with respect to the subject matter hereof, and supersedes any and all other
Calibration Contract between the parties related thereto, as well as all proposals, oral or written, and all negotiations, conversations or
discussions between the parties related to this Calibration Contract. No product or service specifications, or terms and conditions that are
additional or contrary to the terms of this Calibration Contract, whether contained in any purchase order or other communication from
Customer or any third party, will be construed as, or constitute a waiver of these terms and conditions, or acceptance of any such additional
terms, conditions or specifications. TSI hereby rejects and objects to such additional or contrary terms, conditions or specifications.
6.6 No modification of this Calibration Contract will be binding on either party unless it is in writing and signed by both parties.
6.7 No failure by either party to take any action or assert any right hereunder will be deemed to be a waiver of such right in the event of
the continuation or repetition of the circumstances giving rise to such right.
6.8 In the event that any of the terms of this Calibration Contract are in conflict with any applicable rule of law or statutory provision or
are otherwise unenforceable under the applicable laws or regulations of any government or subdivision thereof, such terms will be deemed
stricken from this Calibration Contract, and the remainder of this Calibration Contract will continue in force.
6.9 This Calibration Contract will be executed in two or more counterparts and each such counterpart will be deemed an original
7. SOFTWARE. In the case of any software or firmware containing software supplied in connection with services provided under this Calibration
Contract, or updates or upgrades to any software or firmware containing software, Buyer is granted ONLY a nonexclusive and nontransferable
license to use one copy of the appropriate software as installed or supplied, on a single computer. Buyer acknowledges and agrees that the
software is proprietary and constitutes a trade secret, copyright or patent of TSI. The Buyer shall acquire no title or rights of ownership in the
software nor have the right to copy (except for backup), modify, reverse engineer or compile, license others, transfer, disassemble or disclose to
any third party, all or part of the software. The Buyer agrees to follow all additional terms stated in the Software License including, but not limited
to, warranty provisions, customer remedies, and damages. As used in this paragraph, an update refers to the correction or fix of a software bug
or other software defect, an upgrade refers to a performance enhancement or enhanced functionality.
8. SOLE AND EXCLUSIVE TERMS OF SALE. Except as otherwise agreed to in writing by TSI, Buyer agrees that this document contains the
sole and exclusive terms and conditions which shall apply to the sale of the goods and/or services sold hereunder. Any additional or different
terms in documents provided by Buyer shall not apply and are hereby expressly objected to by TSI.
9. ARBITRATION. TSI may bring an action for nonpayment before any judicial court of competent jurisdiction without need for arbitration. Any
other claim or dispute arising out of or concerning the transaction evidenced hereby shall be settled by binding arbitration in Minneapolis,
Minnesota, under the Commercial Rules and procedures of the American Arbitration Association in effect at the time of the dispute. The
arbitration panel shall be comprised of one person. The language of the arbitration shall be English. The award shall be enforceable in any court
having jurisdiction.
10. GOVERNING LAW. This document, the transactions evidenced hereby and any dispute that arises shall be governed by the laws of the State
of Minnesota, U.S.A., without regard to principles of conflicts of laws. The rights and obligations of the parties hereunder shall not be governed by
the United Nations Convention on Contracts for the International Sale of Goods.
11. MISCELLANEOUS. This document is not an acceptance of any offer. All orders are subject to acceptance by TSI. TSI may correct any errors
in the typed portion of this document at any time. Services pursuant to this Calibration Contract may be provided by TSI or its subsidiaries.