Date: 1st January 2017
Terms and Conditions of Sale
These terms and conditions of sale (these “Terms”) together with the attendant proposal,
quotation, order acknowledgment or confirmation (the “Agreement”) are the exclusive terms
and conditions that govern the sale of goods or the provision of services by the seller (“Seller”)
to the purchaser (“Buyer”). The Seller hereunder is the Struers entity identified on the attendant
proposal, quotation, order acknowledgment or confirmation (collectively, “Seller’s Forms”).
1. Definitions
a. “Goods” means all equipment, parts, materials, supplies, software, firmware,
documentation (including design engineering) and other products Seller has supplied to
Buyer under the Agreement.
b. “Services” means any field commissioning, start-up, installation, repair, calibration,
training, consultation, or professional services furnished by Seller to Buyer.
2. Acceptance
The sale of Goods and Services is expressly conditioned on Buyer’s acceptance of the
Agreement in its entirety (which consists these Terms together with the terms set forth in
Seller’s Forms) as the complete and exclusive agreement. Any additional or different terms
proposed by Buyer in any documents (including without limitation, Buyer’s purchase order)
are expressly objected to without need of further notice of objection and are of no effect
and will not be binding upon Seller. Any oral or written representation, warranty, course of
dealing or trade usage not contained in these Terms or the Agreement shall not be binding
on either party. Any changes to these Terms or any additional terms must be agreed to by
both Buyer and Seller in a written document expressly stating that it modifies these Terms.
Any order for Goods and Services, and/or Buyer’s receipt of Goods or Services shipped or
performed under the Agreement shall constitute assent to these Terms.
3. Prices
Prices for Goods and Services shall be the price listed in Seller’s published price list at the
time of shipment or performance of Services, or as otherwise specified in writing; provided
that all quoted prices are firm for thirty (30) days from the date of written quotation, or as
otherwise specified by Seller in writing (errors and omissions excepted). Quoted prices
exclude shipping, freight, or transportation costs, insurance costs, testing and inspection
fees, legalization costs and any other costs or expenses, unless otherwise specified. Prices
include standard packaging only. Any special handling or packaging requests will result in
additional charges to Buyer. Unless otherwise agreed, prices for Resale Products (as
defined below in Section 14) will be the price of such Resale Products at the time the Resale
Products are shipped to Buyer. Buyer acknowledges that the prices for the Goods and
Services are based on these Terms as the exclusive terms of sale, and accordingly, Buyer
confirms that the limitations and exclusions of liability and the insurability of the risks
concerned have been taken into account by Buyer in agreeing to the prices.
4. Taxes
Quoted prices are exclusive of all local, city, state, province, federal or foreign sales, use,
excise, or other taxes or charges payable with respect to the sale, purchase, delivery,
storage, processing, use, consumption or transportation of any of the Goods or Services.
All government charges upon the Goods or Services tendered under the Agreement,
including, but not limited to, use, occupation, VAT, income, export and import taxes, shall
be paid by Buyer or, in lieu thereof, Buyer shall furnish Seller with a tax exemption certificate
acceptable to the authority imposing the tax on Seller. However, Buyer will reimburse Seller
for any taxes incurred by it on the sale of Goods or Services to the extent such tax
exemption certificate proves to be insufficient to the applicable taxing authority for any
reason. Such reimbursement must occur within ten (10) days from the date Seller becomes
aware of the invalidity of such tax exemption certificate.
5. Documentation
Seller shall provide Buyer with the data and documentation that is specifically identified in
the quotation or order acknowledgement. Additional copies of standard data and
documentation or requests for special data and documentation will be made available to
Buyer at additional cost. Such documentation includes, but is not restricted to, drawings,
specifications, instruction manuals, training materials, and other such data or artwork
furnished to Buyer or Buyer’s subcontractors. The definitions and restrictions set forth in
the following subparagraphs apply regardless of the type of media on which the documents
are provided.
a. Document Classes. Documentation shall comprise two classes: Class 1 shall include all
documents describing the standard functionality and operation of Seller’s products,
commonly referred to as instruction manuals, which are not produced exclusively for
Buyer. Class 2 shall include all documents produced by Seller specifically for Buyer for
the purpose of facilitating the fair use of the Goods or Services under the Agreement.
b. Copyrights. Ownership of copyrights for all documents in all classes is retained by Seller.
Buyer is granted a license to make, without further approval by Seller, a limited number
of copies, in whole or in part, of a Class 1 document, so long as the copied portion
includes the applicable copyright and trademark statements found on the original
document. Buyer is further granted a license to make a limited number of copies, in
whole or in part, of any Class 2 document, so long as the copied portion includes the
applicable copyright and trademark statements found on the original document.
c. Trademarks. Buyer is granted a license to use the Seller’s trademarks in documentation
produced by Buyer for the purpose of facilitating the fair use of the Goods provided under
the Agreement, so long as the trademarks are treated in a manner that is consistent with
applicable trademark laws of the jurisdictions in which Buyer is located and clearly
identified as trademarks of Seller.
Documents provided to Buyer, or copies of copyrighted materials made by Buyer under the
provisions set forth in subparagraph “b” above, may be used by Buyer or Buyer’s
subcontractors only for the purpose of facilitating the fair use of the Goods provided under
the Agreement. Such documents contain information considered to be Seller’s confidential
and proprietary property and may not be disclosed to any other third party without Seller’s
written permission.
6. Changes Requested by Buyer
No change requested by Buyer after formation of the Agreement that affects the schedule
or other requirements of the Goods or Services to be provided or that otherwise affects the
scope of the Agreement shall be effective or binding on Seller, unless (i) such change has
been submitted in writing by Buyer to Seller, and (ii) Seller has expressly agreed to such
change. All charges and delays resulting from any such change shall be solely determined
by Seller and shall be binding upon Buyer.
7. Termination, Suspension, and Breach.
a. Unless the Goods have been shipped or the Services have been performed, Buyer may
cancel its order or terminate or suspend performance under the Agreement at Buyer’s
convenience by providing written notice to Seller, subject to the following charges, which
shall be solely determined by Seller:
Buyer will reimburse Seller for any direct or indirect cancellation charges incurred by
Seller, including without limitation lost profits and all costs and expenses incurred by
Seller to prepare the Goods or Services for satisfaction of Buyer’s order. Further, all
orders cancelled will be subject to a restocking fee to be determined by Seller in its sole
discretion, but in no event will such fee be less than twenty percent (20%) of the
purchase price of the Goods or Services.
For custom orders, a 100% cancellation charge shall apply at the time of system
completion to all canceled Goods or Services. Further, Seller reserves the right to charge
Buyer a non-cancellation fee equal to up to one hundred percent (100%) of the purchase
price of the Goods or Services, with the specific amount of such non-cancellation fee to
be determined in the sole discretion of Seller. Any non-cancellation fee will be
communicated to Buyer, and Seller will have the right to keep the non-cancellation fee
(in addition to any other remedies it may have pursuant to this Section) in the event
Buyer cancels such custom order. ,.
b. If Buyer fails to make a payment to Seller for the Goods or Services delivered or
provided, or if Buyer materially breaches any provision of the Agreement, Seller may
take any or all of the following actions: suspend or discontinue delivery of Goods or
performance of Services until Seller receives full payment therefor from Buyer,
immediately terminate the Agreement, or declare all outstanding amounts to be
immediately due and payable.
c. If Buyer fails to pay any sum to Seller when due or makes a voluntary arrangement with
its creditors, or if a receiver is appointed or a petition is presented for the administration,
winding-up or bankruptcy of Buyer, or if Buyer enters into liquidation or takes or suffers
any analogous action, becomes insolvent, files for bankruptcy, or otherwise admits its
inability to pay its debts as they mature, or if Seller has reason to believe that Buyer will
be unable to pay its debts to Seller when due, all sums owed by Buyer will become
immediately due and payable, and Seller will be entitled to require payment in full prior
to further manufacture or delivery of the Goods or performance of the Services, or to
cancel, suspend or terminate all or any further manufacture or delivery of Goods or
performance of Services, without incurring any liability to Buyer.
d. Setoffs. Seller will have the right to setoff and apply any funds received from Buyer for
the benefit of any other overdue accounts or amounts owed to Seller or its affiliates by
Buyer or its affiliates.
8. Credit
The amount of credit offered by Seller to Buyer is contingent upon Seller’s opinion of
Buyer’s capacity, ability, and willingness to promptly pay for Goods received under the
terms of the Agreement. Provided that, in Seller’s opinion, there is a material adverse
change in Buyer’s financial condition and/or Buyer has not, within the agreed time, fully
paid for Goods and/or Services previously supplied under the Agreement and/or another
agreement(s) with Seller, Seller reserves the right to revoke Buyer’s credit and/or suspend
performance on this and/or other orders for Goods and Services without liability to Buyer.
9. Inspection
Buyer must inspect the Goods and the Services promptly upon physical receipt of the
Goods or performance of Services. Buyer may reject Goods or Services if it discovers a
defect materially impairing the value of the Goods or the Services, provided that any claim
regarding a material defect must be made promptly, and no later than five (5) business
days from the date of Buyer’s physical receipt of the Goods or upon Seller’s performance
of the Services, or Buyer will be deemed to have waived such claim. Any lesser defects are
governed by the terms of Seller’s applicable standard limited warranties. Claims for
shortages must be reported to Seller promptly, and no later than five (5) business days
from the date of Buyer’s physical receipt of the Goods, or Buyer will be deemed to have
waived such claim against Seller. To the extent any shortage or damage to the Goods has
occurred during shipping, Buyer’s exclusive remedy will be to file a claim with the carrier.
In no event shall Seller be liable for Goods lost or damage during shipment.
10. Shipment and Risk of Loss
All sales are Ex Works (pursuant to Incoterms 2010) Seller’s factory, unless otherwise
agreed upon in writing. Shipping contracts made by Seller shall be to Buyer’s account. All
claims for loss or damage after risk of loss has passed to Buyer shall be filed by Buyer with
the carrier. Buyer shall be liable to Seller for the full price of the Goods and Services,
irrespective of loss or damage in transit. Notwithstanding the foregoing, Seller reserves its
rights to stop goods in transit.
a. Transportation Expenses: Transportation expenses shall be paid by Buyer. Seller shall
select the carrier. Full insurable values shall be declared with the resultant insurance
premiums being paid by Buyer. Shipping and insurance charges shall be prepaid by
Seller and added to Buyer’s invoice at cost, unless otherwise agreed to by the parties.
b. Schedules: Dates quoted by Seller are estimated based upon Buyer’s specified
requirements at time of order acceptance. Delays in receipt of approvals and/or
information, changes that result in delays, or requested deferment of schedules may
Date: 1st January 2017
2
cause additional expense to Seller. Accordingly, in addition to the escalation provisions
of subparagraph “c” below, Seller shall be entitled to an extension of time, and
reimbursement of costs. The change in price shall be evenly divided among any invoices
remaining to be issued.
c. Escalation: All prices quoted are based on scheduled shipments within twelve (12)
months from date of order acceptance. Delays caused solely by Seller beyond the
quoted delivery date shall not be subject to escalation.
11. Delivery of Goods or Services
Seller will use reasonable efforts to deliver the Goods or perform the Services on the date
or within the period for delivery or performance agreed by the parties, but time for delivery
or performance will not be of the essence, and Seller will not be liable for any loss or
expense whatsoever caused by late delivery or performance. Seller will use reasonable
efforts to comply with Buyer’s delivery procedures. If Buyer is unable or unwilling to accept
delivery of the Goods in accordance with the Agreement, Seller may retain the Goods and
arrange for or provide their storage and insurance as it determines in its sole discretion and
at Buyer’s expense. If Seller provides such storage, Seller will be entitled to charge Buyer
at Seller’s then current standard rates for storage. Such retention or dispatch of any Goods
for storage will be treated as constituting their delivery to Buyer in accordance with the
Agreement for all the purposes of these terms and conditions. If Buyer is unable or unwilling
for any reason to accept performance of the Services in accordance with the Agreement,
Seller will use reasonable efforts to perform the Services as soon as practicable following
Buyer’s confirmation, by not less than fourteen (14) days’ notice in writing, of the date on
which Buyer will be ready. If the date specified is more than 30 days later than the date
specified in the Agreement, Seller will be entitled to invoice Buyer and be paid for the
Services as if they had been completed, and to invoice Buyer following performance for
any additional cost or expense of performance resulting from the delay.
12. Payments
Orders of an aggregate amount less than $30,000 must be prepaid, or in special cases with
Seller’s written agreement, paid net cash against shipping documents through irrevocable,
confirmed letters of credit. For orders of an aggregate amount equal to $30,000 or more,
Buyer must prepay 30% of the aggregate amount upon Seller’s acceptance of the order.
Payment of the remaining amount must be made against invoice within the due date
specified on Seller’s sales order acknowledgement. Invoices will be issued by Seller as of
the date of shipment, performance of Services or commencement of Service Plan.
Payments due Seller must be paid to Seller by wire transfer at Seller’s designated bank
account. All payments must be in the currency designated on the Sellers sales order
acknowledgement. All invoices will be deemed to be accepted by Buyer unless Seller
receives written notice within ten (10) business days from the date of the invoice. Invoiced
amounts must be paid in full without any discounts, deductions or set-offs by Buyer. A
monthly service charge of 1.5% may be charged on amounts owed by Buyer to Seller that
have not been paid within the specified due date, subject to maximum amount permitted
by law. If any overdue amounts have been handed over to an attorney for their collection,
Buyer will reimburse Seller for all costs of collection and associated attorneys’ fees (with
such costs and fees being not less than thirty percent (30%) of the total overdue amount
payable). Seller may apply any sums received from Buyer first to the payment of any such
costs and expenses, then interest accrued, and then all other amounts owed to Seller in
date order, starting with the oldest, regardless of any disputes or Buyer’s attribution of
payment to any particular invoices.
13. Rights of Seller until Payment by Buyer
Until all amounts have been paid in full, Buyer will hold the Goods and their proceeds upon
sale as fiduciary for Seller, and Seller will be entitled to have access to Buyer’s premises
at all reasonable times to inspect and remove the Goods; provided that Buyer if Buyer is a
reseller of the Goods, Buyer may sell the Goods as Seller’s agent in the ordinary course of
its business, unless and until Seller terminates Buyer’s authority to do so by written notice.
Notwithstanding the foregoing, Seller may bring an action for the price of the Goods or
Services at any time until Seller has been paid in full.
14. Resale Products; Third Party Components
a. ”Resale Products” are items that are sold with Seller’s Goods and that are not
manufactured by Seller, but are supplied as an accommodation to Buyer. Seller’s
responsibility for Resale Products is limited to reasonable commercial effort to arrange
for procurement and shipping. Unless otherwise agreed, all prices are F.C.A. Resale
Product manufacturer’s factory. Standard documentation shall be only as supplied by
the Resale Product manufacturer. Buyer agrees that Seller has no liability for Resale
Products beyond Seller’s direct control and beyond that which is necessary to
reasonably discharge the above stated responsibility, and Seller shall not be liable for
delays caused by Resale Product manufacturer.
b. Notwithstanding anything else contained herein, to the extent that any Goods or any
component or part of the Goods has been manufactured by a third party and not by
Seller or its affiliates (“Third Party Components”), such Third Party Components shall be
warranted only to the extent of and under the conditions of the original manufacturer’s
warranty. Seller will not be responsible for any defects in such Third Party Component;
provided that upon Buyer’s request, Seller will, to the extent it is able to do so, transfer
to Buyer the benefit of whatever warranties and other rights as to defective components
that Seller may have against its supplier.
c. SELLER MAKES NO WARRANTY FOR RESALE PRODUCTS OR THIRD PARTY
GOODS, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SOLE
WARRANTY SHALL BE THE WARRANTY, IF ANY, PROVIDED BY THE
MANUFACTURER OF THE RESALE PRODUCT OR THE THIRD PARTY
COMPONENT. Buyer further agrees that Buyer’s SOLE AND EXCLUSIVE REMEDY for
Seller’s breach of its stated responsibilities as set forth above shall be limited to the
difference between manufacturer’s price to Seller for the Resale Products or Third Party
Components and Seller’s price to Buyer for the Resale Products or Third Party
Components that are the subject of such breach.
15. Limited Warranty.
a. Seller warrants, to its original customer only, that (i) Goods and their component parts
manufactured by Seller are free from defects in material and workmanship until the
earlier of twelve (12) months from the date of start-up or eighteen (18) months from date
of shipment; and (ii) the Services will be performed with reasonable skill and care. If
within the specified warranty period it is discovered that the Goods fail to conform to
specifications or have a defect in materials or workmanship, or if the Services are not
performed as warranted, then Seller must promptly be notified in writing, which
notification, in any event must be received no later than twenty (20) months from the
date of shipment of Goods or twelve (12) months from the date the Services were
performed. The foregoing warranty shall not apply to Goods or Services that Seller, in
its sole discretion, determines to be damaged as a result of (i) misuse, neglect or
accident; (ii) improper application, installation, storage or use; (iii) improper or
inadequate maintenance or calibration; (iv) operation outside of the published
environmental specification; (v) damage caused by disasters such as fire, flood, wind
and lightning (vi) improper site preparation or maintenance; (vii) unauthorized repairs or
replacements or use of parts or consumables not supplied or recommended by Seller;
(viii) modifications negligently or otherwise improperly made or performed by persons
other than Seller; (ix) Buyer-supplied software or supplies; or (x) use in conjunction with
or interfacing with unapproved accessory equipment or attachments.
b. If Seller determines that the Goods or Services fail to conform to the warranty, then within
a reasonable time after Buyer’s notification of a warranty claim, Seller will correct any
failure to conform to specifications or any defect in materials or workmanship, or in lieu
of such repair, and at its sole option, shall replace the Goods. Seller’s obligation with
respect to such Goods or Services shall be limited to replacement or repair of the
nonconforming Goods or Services (parts and labor only) and conditioned upon Buyer
promptly returning the Goods in question to Seller upon its request. Seller may, in its
sole discretion, refund all or any part of Seller’s charge for any Services that Seller
determines, in its reasonable judgment, failed to conform to the express warranty. In no
event shall Seller be liable for consequential, incidental, indirect or special damages, or
for transportation, installation, adjustment or other expenses that may arise in connection
with such Goods or Services. All warranty service will be performed by the Sellers
employees or authorized representatives. If Seller determines that the Goods or
Services did not fail to conform to the warranty, or that such failure to conform was not
the solely caused by Seller, then Buyer shall reimburse Seller for Seller’s time, costs and
expense incurred in responding to Buyer’s claim. Prior to any obligation of Seller to
perform any limited warranty service as set forth herein, Buyer must have paid all
invoices to Seller in full, whether or not they are specifically related to the Goods or
Services at issue.
c. There is no warranty by Seller with respect to: (i) the Goods operating uninterrupted or
error-free; (ii) the actual performance of the Goods, other than their capability to meet
Seller’s specifications therefor; (iii) the removal or installation of the Goods from a
worksite or process, or the suitability of an installation environment; (iv) the Goods’
electronic components or associated accessories (including without limitation circuit
boards and integrated circuits); (v) the Goods’ maintenance, adjustments, minor repairs,
and other inspection requirements, preventative or otherwise; (vi) the use of the Goods
under inappropriate conditions or not in accordance with operating instructions; or (vii)
the use of Goods in connection with the operation of a nuclear facility.
d. EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY. SELLER DISCLAIMS ANY
AND ALL OTHER WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE
GOODS AND SERVICES PROVIDED HEREUNDER, WHETHER EXPRESS OR
IMPLIED, ARISING BY LAW, CUSTOM, ORAL OR WRITTEN STATEMENTS OR
OTHERWISE,
INCLUDING
BUT
NOT
LIMITED
TO
WARRANTIES
OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM OF
INTERFERENCE WITH ENJOYMENT, QUALITY, ACCURACY, COMPLETENESS,
FITNESS OF RESULTING WORK PRODUCT, OR THAT THE PRODUCTS OR
SERVICES WILL GENERATE CERTAIN RESULTS, WORK IN COMBINATION WITH
OTHER COMPONENTS OR AS AN INTEGRATED SYSTEM OR WILL FULFILL ANY
OF BUYER’S PARTICULAR PURPOSES OR NEEDS. SELLER MAKES NO
WARRANTY, EXPRESS OR IMPLIED, AS TO THE DESIGN, SALE, INSTALLATION
OR USE OF ITS PRODUCTS. SELLER’S WARRANTIES WILL NOT BE ENLARGED
BY, NOR WILL ANY OBLIGATION OR LIABILITY OF SELLER ARISE DUE TO SELLER
PROVIDING TECHNICAL DIRECTION, FACILITIES OR SERVICE IN CONNECTION
WITH ANY GOODS OR SERVICES.
16. Buyer’s Obligations
a. Buyer shall comply with all applicable laws related to its order for and receipt and use of
the Goods and Services.
b. Buyer shall cooperate with Seller in all matters relating to Services and provide sufficient
access to the premises where the Services will be performed and to such office
accommodation and other facilities and storage as Seller may reasonably request in
connection with providing the Services. Buyer shall ensure that Seller has sufficient
access to an adequate supply of utilities and shall be responsible for obtaining and
maintaining all necessary licenses, permits and consents for the Services.
c. Buyer will ensure that each location where Services are being performed (other than
Seller’s facilities) is safe and free of hazards, and that the working conditions will not
adversely affect the health and safety of Seller’s personnel, or the personnel of Seller’s
agents or contractors; and Buyer shall indemnify and hold harmless Seller from and
against any claim, loss, damage or expense or injury of whatever nature suffered or
incurred by Seller or any such personnel or any third parties, arising from or in respect
of the performance of the Services at the site, except to the extent resulting from Seller’s
negligence. Buyer acknowledges that individuals who provide Service shall have the
right to refuse or decline to provide any Service if such individual perceives a health or
safety risk, and such action shall not be deemed to be a breach of any Seller obligation.
d. Except as otherwise expressly stated in these Terms, and to the fullest extent permitted
by law, Buyer will indemnify and hold harmless Seller and its officers, employees, agents
or contractors fully from and against any third party claims, including all legal fees, costs
Date: 1st January 2017
3
and expenses, for damage, injury, expense or loss of amenity, income, business or profit
or any other loss, whether due to negligence or otherwise, arising from or in respect of
the Goods or Services or otherwise from or in relation to the Agreement.
17. Force Majeure
Seller shall not be liable for its failure to perform under the Agreement or for any direct or
consequential damages caused, either directly or indirectly, as a result of: (i) any act of
God, including but not limited to natural disasters such as floods, earthquakes or tornadoes;
(ii) failure of supplies or transportation, or governmental action; (iii) damages resulting from
or under the conditions of labor disputes, strikes, riot, insurrection, civil commotion or war;
(iv) damages or improper operation due to intermittent power line voltage, frequency,
electrical spikes or surges, unusual shock or electrical damage; (v) accident, fire or water
damage, corrosive atmosphere or causes other than ordinary use; or (vi) any other causes
beyond Seller’s reasonable control.
18. Software Provisions
If software is provided under the Agreement, Buyer is granted a non-exclusive, non-
transferable, royalty free license only for Buyer’s use of Seller’s software provided with the
Seller’s system. Under this license Buyer may: (a) use Seller’s software with the Seller’s
system provided; (b) copy the Seller’s software into any machine readable or printed form
for back up in support of Buyer’s use of the Seller’s software on the Seller’s system
provided; and (c) create one additional copy of the software for archival purposes only.
19. Patents
Seller shall defend and indemnify Buyer against any actions of third parties based on claims
that the Goods manufactured and sold or Services performed by Seller constitute an
infringement of a valid patent of the United States, as judged by a federal court of law in
the United States, for the benefit of such third parties, provided that Buyer notifies Seller in
writing of any such claim within five (5) days thereof and thereafter gives necessary
authority, information and assistance to Seller for the defense of such action. In the event
that the Goods manufactured or Services performed by Seller are held to be infringing in
such action and their use is enjoined, Seller shall only be required to, at Seller’s expense,
modify the Goods or Services so they become non-infringing, or, if modification is not
possible, refund the Buyer purchase price for the hardware and software items that are
infringing and remove them at Seller’s sole expense. Buyer agrees that Seller shall not be
liable, and that Buyer shall fully indemnify Seller, if infringement is based upon the use of
the Goods or Services in connection with goods not manufactured by Seller, or in a manner
for which the Goods were not designed by Seller, or if the Goods were designed by Buyer
or were modified by or for Buyer in a manner to cause them to become infringing.
20. Intellectual Property
All title to and ownership of all proprietary rights related to Seller’s products or services,
including all patent rights, copyrights, trademarks, trade secrets, and other intellectual
property and any inventions and software shall remain the property of Seller (or Seller’s
affiliates), even upon completion or termination of the Agreement. Buyer acknowledges and
agrees that all software provided under the Agreement is licensed, not sold, by Seller.
Buyer acknowledges that all Goods and software (excluding any firmware, software and
other items that are proprietary to others) and the intellectual property associated with such
Goods and software, including all code, content, protocols, and documentation provided by
Seller in conjunction with the Goods and software are (as between Buyer and Seller) the
property of Seller or Seller’s affiliates and are protected by international copyright,
trademarks, patents and other proprietary rights and laws relating to Intellectual Property
Rights as well as by such laws of various countries in which Seller and its affiliates conduct
their businesses. “Intellectual Property Rights” means, collectively, rights under patent,
trademark, copyright and trade secret laws, and any other intellectual property or
proprietary rights recognized in any country or jurisdiction worldwide, including, without
limitation, moral or similar rights. Buyer may not delete, alter, or remove any copyright,
trademark, or other proprietary rights notice Seller has placed on Goods or software. Buyer
may not modify, reverse-engineer, decompile, disassemble, or otherwise discover the
Goods or software, or attempt to do so for any reason. Further, Buyer may not access,
create or modify the source code of the software in any way. Buyer does not have the right
to and may not create derivative works of the Goods or software. Buyer will (at Seller’s
expense) take such steps as Seller may reasonably request to establish, prosecute and
defend the Intellectual Property Rights of Seller and its affiliates. All modifications or
enhancements to the Goods or software remain the sole property of Seller. All Intellectual
Property Rights not expressly granted by the Agreement are expressly reserved to Seller.
21. Confidentiality
Seller and Buyer will not, without the prior written consent of the other, either (a) disclose
any confidential, proprietary, or commercially sensitive information of the other that the
party may be exposed to in the course of this relationship to anyone other than those
officers, employees, agents, or subcontractors who need to know it in connection with
performance of the Agreement and have agreed to be bound by these obligations of
confidentiality, or (b) use the other’s confidential information for any purpose other than
performance of the Agreement. Confidential information may include, but is not limited to,
all data, maps, reports, drawings, specifications, records, technical information, and
computer programs/software concerning either party’s operations, processes or equipment
which are provided and/or acquired or handled by either party in connection with the
Agreement unless that confidential information was already known to the receiving party,
is available to persons in the public domain, is lawfully acquired by either party from a third
party or other source, or is required by law or legal process to be disclosed provided that
the receiving party immediately notify the other party of such disclosure prior to disclosure
and cooperates with any attempts by the disclosing party to avoid such disclosure.
Proprietary information shall include, but not be limited to, any information, data or know-
how in whatever form that is related to the operations of either party including pricing
information, marketing information, terms and conditions of any proposed or actual
agreement between the parties and their clients or customers, and either party’s policies
and practices.
22. General Provisions
a. There are no understandings, agreements, or representations, expressed or implied, not
specified in the Agreement.
b. No action, regardless of form arising out of transactions under the Agreement, may be
brought by either party more than two (2) years after the cause of action has accrued.
c. The Agreement is formed and shall be construed under the laws of country (and state
or province, if applicable) of Seller’s principal place of business (as shown by the address
on Seller’s Forms), without regard to any conflict of law provisions that might otherwise
require the application of any other law. The United Nations Convention on Contracts for
the International Sale of Goods shall not apply to these Terms.
d. In the event of any claim arising hereunder, Buyer consents to the exclusive jurisdiction
of the court at Seller’s principal place of business (as shown by the address on Seller’s
Forms), provided however, that Seller shall have the right to pursue any remedies
against Buyer in any other court having proper jurisdiction. The parties waive any right
to a jury trial.
e. All stenographic, typographical, and clerical errors in quotations or field engineering
services rate sheet and specifications may be corrected at any time by Seller.
f. Seller may provide various translated versions of these Terms for informational purposes
only, except to the extent otherwise required by applicable law. If the parties disagree
over the meaning or construction of any provision, the parties agree that the original
English language version of these Terms and of any communications between the
parties will control.
g. If Goods supplied hereunder are used in a nuclear power generation facility or any
nuclear applications, Buyer fully indemnifies Seller for any claims, demands, complaints,
or actions of third parties, Buyer or any of Buyer’s employees, independent contractors,
or agents including but not limited to claims for personal injury or property damage, and
any costs, expenses, or damages incurred as a result thereof which are based on the
negligence, gross negligence, or intentional misconduct of any party.
23. Electronic Data Interchange
Buyer and Seller may execute an order acknowledgement by transmitting and receiving
the data contained in the order acknowledgement electronically rather than in paper form.
To provide the legal validity and enforceability of such order acknowledgement, Buyer and
Seller further agree the data transmitted herein will be considered “in writing” and to have
been “signed.” Buyer and Seller agree not to contest the validity or enforceability of an order
acknowledgement because of the electronic origination, transmission, storage or handling
of such order acknowledgement. Any computer printout of the data contained in the order
acknowledgement will be considered an “original” when maintained in the ordinary course
of business and will be admissible as between Buyer and Seller to the same extent and
under the same conditions as other business records maintained in documentary form.
Buyer and Seller agree to properly use those security procedures which are reasonably
sufficient to ensure that a transmission of the data contained in an order acknowledgement
is authorized and to protect its business records and data from improper sources.
24. Limitation of Liability
IN NO CASE SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES BASED UPON ANY LEGAL
THEORY, WHETHER TORT, CONTRACT OR STRICT LIABILITY, WHETHER OR NOT
SUCH DAMAGES ARE FORESEEABLE, INCLUDING BUT NOT LIMITED TO THOSE
BASED UPON ANY LOSS OF PROFITS, LOSS OF SAVINGS OR REVENUE, LOSS OF
USE OF THE PRODUCT OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL,
COST OF ANY SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME,
LOSS OR DAMAGE RESULTING FROM GENERAL OR PARTICULAR REQUIREMENTS
AND NEEDS OF BUYER OF WHICH SELLER MAY HAVE HAD REASON TO KNOW,
TjHE CLAIMS OF THIRD PARTIES INCLUDING CUSTOMERS, INJURY TO PROPERTY
AND, UNLESS PRECLUDED UNDER APPLICABLE LAW, BODILY AND PERSONAL
INJURY. Buyer acknowledges that Seller shall not be liable for any acts or omissions by
any third parties, including its distributors and sales and service agents. Notwithstanding
any other provision of the Agreement, in no event shall Seller’s total liability for any and all
losses and damages arising out of any and all causes whatsoever including, without
limitation, defects in the Goods, Services, software, or documentation supplied under the
Agreement or for breach of the Agreement, exceed the purchase price received by Seller
for the applicable item(s) of the Goods or the fees for the Services giving rise to the claim.
Any action or suit by Buyer against Seller relating to the Agreement or the Goods or
Services covered hereby must be brought within one (1) year of the date of invoice for such
Goods or Services giving rise to the claim.
25. Improvements by Seller
Seller and its suppliers continuously improve the quality and performance of the Goods and
Services, and accordingly, the Goods and Services will be subject to changes in
specifications, design, materials, components, finishes, construction and processes at
Seller’s sole discretion, without any liability for retrofitting any previously supplied Goods or
revising any previously provided Services.
26. Buyer Data
If any data supplied by Buyer, whether in the form of Buyer specifications or pursuant to
any purchase order or other documentation, proves to be inaccurate, any warranties or
other related obligations of Seller relying thereon will be void.
27. Export
Buyer agrees to comply with all applicable export and re-export control laws and
regulations, including without limitation:
(i) the Export Control Act of 2002, the Export Control Order 2008, or any successor acts
or order related thereto as in effect in the U.K., and all acts, orders, rules and regulations
thereunder (collectively, “UK Export Control Laws”)
(ii) the Export Administration Regulations (“EAR”) maintained by the U.S. Department of
Commerce, trade and economic sanctions regulations maintained by the Treasury
Department’s Office of Foreign Assets Control (“OFAC”) and the International Traffic in
Arms Regulations (“ITAR”) maintained by the Department of State.
Date: 1st January 2017
4
At the time the order is placed, Buyer must identify to Seller’s satisfaction the end-user
application and/or dual applications for the Goods to be purchased. Seller reserves the
exclusive right to refuse to accept any purchase order. Buyer will be responsible for
obtaining any license required under the UK Export Control Laws, EAR, OFAC regulations
or ITAR. Seller will identify in writing to Buyer those items, technology and software for
which an export license is required and provide export classification and licensing
information necessary for export documents, including but not limited to the appropriate
U.S. Export Control Classification Number (“ECCN”) from the Commerce Control List, the
applicability of license exceptions, license numbers and copies of licenses. Buyer agrees
to indemnify Seller for any fines, penalties, claims, losses, damages, costs (including legal
costs), expenses and liabilities that may arise as a result of Buyer’s breach of this Section.
28. Anti-Bribery Laws
Buyer agrees to comply, and Buyer’s order for Goods and Services shall be deemed to be
Buyer’s certification that Buyer complies, with all laws, regulations, and international
conventions related to bribery and corruption, including but not limited to the U.K. Bribery
Act of 2010 (http://www.legislation.gov.uk/ukpga/2010/23/contents), the U.S. Foreign
Corrupt Practices Act (http://www.justice.gov/criminal/fraud/fcpa/statutes/regulations.html)
and any applicable laws or regulation in furtherance of the Convention on Combating
Bribery of Foreign Officials in International Business Transactions of the Organization of
Economic Co-Operation and Development (OECD), which prohibits the payment of
anything of value to governments, government officials, political parties, political party
officials or relatives of such officials, whether directly or indirectly, to gain unfair advantage,
obtain or retain business in marketing or selling products.
29. Governmental Procurement
No governmental procurement regulations or contractual clauses will be binding upon
either Seller or Buyer unless such regulations or clauses are mutually agreed to by Seller
and Buyer.
30. Survival
Each of the representations, warranties, covenants and obligations set forth in these Terms
shall survive the sale of the Goods and Services from Seller to Buyer for an indefinite period
and each of Seller and Buyer will continue to be bound by these Terms.
31. No Waive
Any failure by any party to strictly enforce the Terms or to exercise any rights acquired
hereunder shall not constitute a waiver of such terms or rights and shall not affect the right
of the party to enforce or exercise such terms or rights in the future. A waiver must be in
writing signed by the party against whom enforcement is sought, and such waiver shall not
be considered to constitute a general waiver of any rights.
32. Severability
If any one or more of the provisions or subjects contained in the Agreement shall for any
reason be held invalid, illegal, or unenforceable, it shall not affect the validity and
enforceability of any other provisions or subjects.
33. Notice & Electronic Signature
All notices hereunder must be in writing, which shall be deemed duly given (i) upon delivery
if delivered by express courier, or (ii) when receipt is acknowledged by an authorized
representative, if given by electronic transmission. Notice shall be provided at the last
known address of the receiving party. Electronic signatures shall not be effective to modify
or waive any terms of the Agreement, or to indicate acceptance of any of Buyer’s standard
terms and conditions.
34. Assignment
Buyer shall not assign or otherwise transfer (by action or operation of law) its rights or
obligations under the Agreement without Seller’s prior written consent. Except as expressly
set forth in these Terms, no person other than Buyer (or its permitted assignees) shall have
any rights under the Agreement, whether pursuant to the Contracts (Rights of Third Parties)
Act 1999 (U.K.) or otherwise. Any prohibited assignment shall be null and void.