Terms and Conditions - CERTUSS America

Terms and Conditions of Sale, Delivery and Service of CERTUSS America L.P.

§ 1 General

These terms and conditions (the “Contract”) shall apply to all products delivered (“Products”) and services performed (“Services”) by CERTUSS America L.P. (“CERTUSS America”, “we”, “our” or “us”) to or for our customers (each, a “Customer”) pursuant to the purchase order set forth on the face hereof, which is incorporated into this Contract by reference. We shall be deemed to have accepted this Contract upon our written acceptance of the order, confirmation of the order, delivery of the Products or performance of the Services. We shall not be bound by any terms and conditions of the Customer, unless we have expressly agreed to be bound in writing. This Contract merges and supersedes all prior negotiations or agreements of the parties, either written or oral, made either prior to or contemporaneous with this Contract. This Contract, together with its attachments, constitutes the complete, exclusive and final agreement between us and Customer. We reserve the right at our sole discretion to modify any and all provisions of this Contract at any time.

§ 2 Offer and conclusion of Contract

Our offers are subject to change at any time prior to the effective date of this Contract, unless they are expressly designated in writing as “binding”.
The Customer authorizes us to obtain information about its creditworthiness and financial situation. Based on this information, we reserve the right to require prepayment by the Customer before we deliver the Products or provide the Services. If Customer intends to use financing provided by third parties to purchase the Products or Services, we may request verification of such financing prior to our performance.
Our obligations with respect to the quality, specifications and quantity of the Products and/or Services shall be limited to those set forth in this Contract. We reserve the right to change the design and/or materials used as long as these changes are not fundamental and do not adversely affect the Product and/or Service to be provided to the Customer.
If the Customer desires to change the Products or Services in the Contract, the Customer must request this change in writing. We will then inform the Customer whether we can comply with this change request. Any additional costs to be incurred as a result of the change (e.g. formulation of a change proposal, periods of standstill, higher material costs etc.) shall be borne solely by the Customer, if we agree with the request for change.
Customer may cancel the purchase order only if we approve such cancellation in a signed writing. Cancelled orders are subject to a restocking charge of 20% of the purchase price of the Products. Custom orders, special orders or orders for specific equipment requiring a factory order may not be cancelled.

§ 3 Quantity and measurements specifications, obligation to cooperate

The Customer confirms that all quantities and measurements in its orders are based on the Customer’s quantities and specifications that have been verified by the Customer. If deviations from the Customer’s quantities and specifications subsequently arise, additional costs incurred as a result shall be at the Customer’s solely expense.
The Customer shall appoint a competent contact person who shall provide us with the required information and who can make or effect the necessary decisions for the implementation of the Contract without delay.
The Customer shall, and shall ensure that its agents will, cooperate with us as necessary to enable us to deliver the Products and/or perform the Services in a proper manner.
We shall not be liable for delays or errors in the Contract that result from incorrect or incomplete data or information submitted by Customer, or any other circumstances the Customer is responsible for.

§ 4 Prices, conditions of payment

Unless otherwise agreed, our prices are F.O.B./F.C.A. CERTUSS America’s facility according to Incoterms 2010, excluding packaging, which shall be invoiced separately.
All prices are exclusive of any applicable federal, state or local taxes, sales taxes, use taxes or occupational taxes. Unless prohibited by law, Customer is responsible for and shall pay all applicable sales, use, occupational, excise, value added or other similar taxes applicable to the manufacture, sale, price, delivery or use of the Products or Services, or in lieu thereof, Customer shall provide us with a tax exemption certificate acceptable to and considered valid by the applicable taxing authorities.
Unless otherwise agreed in writing, our invoices become payable within 14 days of the date of the invoice, and Customer shall pay all amounts invoiced in full and without setoff or deduction. Failure to make prompt and full payment constitutes a material breach of this Contract. Past due balances shall be subject to interest charges at the maximum rate permitted by law. Customer agrees to pay taxes appearing on the invoice or furnish us with a valid resale/exemption certificate no later than the time of payment.

§ 5 Credit

We may recover for each shipment hereunder as a separate transaction, without reference to any other shipment. If Customer fails to pay any invoice in accordance with the terms of this Contract or is past due in payment of any other amount owing to us, We may, at our option (and without liability or prejudice to any other remedies) defer further shipments until all payments owing to us by Customer have been made (in which event we may elect to extend the Contract period for a time equal to that for which shipments were so deferred), stop any Product in transit or Service in performance and/or decline further performance of this Contract. If at any time in our judgment, the financial responsibility of Customer is impaired, Customer may change the terms of payment and may require advance payment as a condition of shipment.

§ 6 Delivery, Deadlines, Default

Delivery and performance times and dates are estimates and are not guaranteed unless expressly agreed to in writing. All scheduled delivery and performance times and dates are contingent upon the clarification of all technical questions and the availability of the documents and approvals to be provided by the Customer. Any changes to the Contract by the Customer may delay the delivery and performance times and dates. We reserve the right to withhold delivery or performance if Customer does not timely fulfill its obligations under the Contract. Unless otherwise directed, we will prepay all freight and invoice the Customer for the amount of freight paid. We shall use reasonable efforts to make deliveries promptly and in a commercially reasonable manner. We may make partial deliveries in our discretion.
If the Customer refuses to accept the Products or Services without justification or breaches its duty to cooperate, we will be entitled to demand compensation for the damages resulting from Customer’s actions, including any additional expenses. Further claims or rights remain reserved.

§ 7 Transfer of risk of loss; reservation of title

All sales are F.O.B./F.C.A. CERTUSS America’s facility. The risk of loss of all Products sold hereunder shall pass to Customer upon delivery to carrier at point of shipment whether or not Customer pays all of any part of the freight, and notwithstanding any designation in this Contract of any other F.O.B./F.C.A. point. Thereafter, Customer shall be fully responsible for and assume all risk of loss, destruction of or damage to the Products. If the shipping is delayed due to the acts of Customer, the risk of loss will pass to the Customer at the time we notify the Customer of our readiness for shipment. Loss or damage to the Products after risk of loss has passed to Customer will not release or excuse Customer from its obligations under this Contract to us, including the obligation to make full payment.
Unless otherwise stated in the purchase order, we shall determine the type and manner of packaging and shipment. Upon Customer’s written request, we will insure the Products during shipment at the Customer’s expense.
For Service contracts, the risk shall pass to the Customer upon acceptance of the Services.
Title to the Products shall remain with us until the Customer fulfills its obligations to us in full. We shall retain a first priority security interest in and a lien on such Products until payment by Customer of all amounts due to us from Customer with respect to such Products. If the Customer breaches the Contract, including without limitation its payment obligations, we shall be entitled to terminate the Contract and reclaim any Products provided thereunder.

§ 8 Notice of Claims; Limitation of Actions.

All claims must be received by us in writing within thirty (30) days after Customer’s receipt of the Products or Services. With respect to any defects incapable of discovery by Customer (with the exercise of reasonable diligence) until in use or in processing in the manufacture of other products, all claims must be received by us in writing within fifteen (15) days after Customer learns (or, with the exercise of reasonable diligence, could have learned) of the alleged defect. All claims must be received by us at the address specified on the front of this Contract. All claims not made in writing as specified above and received by us within the time periods specified above shall be deemed waived. Upon receipt of Customer’s notification, we shall have the option of making inspection, analyses and tests of the Products at Customer’s premises or of requiring Customer to send any Product or adequate samples thereof, at Customer’s expense, to us or to a person designated by us for inspection, analyses and tests. No inspection or any other actions by third parties are authorized or will be paid for by us, without our prior consent in writing. Any action for our breach of this Contract (including breach of warranties) must be commenced by Customer within one year after the cause of action accrues, and no such action may be maintained which is not commenced within such period.

§ 9 Warranties, liability, damages

(1) We warrant to Customer that (a) the Products are of the quality set forth in our published specifications, if any, or, as may be otherwise stated in writing in this Contract, and (b) the title conveyed is good and the Products are free from any security interest, lien or encumbrance (other than in favor of us for the unpaid balance of all amounts due to us from Customer with respect to the Products). Such warranties extend only to Customer. Except as expressly set forth above the Products are sold “AS IS.”

EXCEPT AS EXPRESSLY SET FORTH IN THE FOREGOING SENTENCES, WE MAKE NO EXPRESS OR IMPLIED WARRANTY THAT THE PRODUCTS SOLD OR THE SERVICES PROVIDED HEREUNDER ARE NON-INFRINGING, ARE OF MERCHANTABLE QUALITY, OR THAT THE PRODUCTS SHALL BE FIT FOR ANY PARTICULAR PURPOSE. THERE ARE NO OTHER WARRANTIES EXPRESSED OR IMPLIED BY OPERATION OF LAW OR OTHERWISE.

WE SHALL NOT BE LIABLE TO CUSTOMER OR ANYONE ELSE FOR ANY SPECIAL, INDIRECT, ECONOMIC, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS OR THE SERVICES, THIS CONTRACT OR ANY BREACH OF THIS CONTRACT INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR ANY LOSS OR DAMAGE RESULTING FROM THE USE OF THE PRODUCTS IN CUSTOMER’S MANUFACTURING OR OPERATIONAL PROCESSES OR IN COMBINATION WITH OTHER SUBSTANCES.

IF THE PRODUCTS OR SERVICES DO NOT CONFORM TO THE WARRANTIES SET FORTH IN THIS SECTION, OR IF CUSTOMER MAKES ANY OTHER CLAIM OF ANY SORT WHATSOEVER, INCLUDING THE CLAIMS SET FORTH ABOVE, AGAINST US, CUSTOMER’S EXCLUSIVE REMEDY SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF THE PRODUCTS, OR, AT OUR OPTION, REPAYMENT OF THE PURCHASE PRICE PAID BY CUSTOMER.

WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR ADEQUACY OF INFORMATION FURNISHED TO CUSTOMER CONCERNING THE CHARACTERISTICS OF, AND PROTECTIVE MEASURES TO BE TAKEN REGARDING THE PRODUCT OR SERVICES. WE SHALL NOT BE LIABLE FOR ANY ERROR OR OMISSION IN THE PREPARATION OF SUCH INFORMATION. WE SHALL NOT BE LIABLE TO CUSTOMER, CUSTOMER’S EMPLOYEES OR ANYONE IN CONNECTION WITH THE ACCURACY, ADEQUACY OR FURNISHING OF SUCH INFORMATION.

Any Product or Service supplied by us hereunder to replace the Product or Service shall be deemed supplied subject to all of provisions of this Contract, including, without limitation, those concerning warranties, limitation of liability, remedies and damages, to the same extent as the Products or Services. In the event we agree to replace any Product or agree to repay to Customer the purchase price of any Product supplied by us to Customer under this Contract, Customer agrees that it shall take reasonable steps, at our written request, to return to us (at our expense) the Product for which replacement or repayment is sought. Notwithstanding the foregoing, if the costs of curing the defect will be disproportionate, we shall be entitled to terminate the Contract.

(2) Our liability for data loss shall be limited to the typical restoration costs which would have occurred during regular and complete creation of backup copies of the entire data, structures and software. If the use of software products of third parties is included in our Services, the Customer hereby acknowledges the terms of use/license of the holder of rights to this software. These use/license terms will be made available to the Customer upon request. We are not responsible for failures of functions which are related or linked to operating system environments and operating system configurations installed at the Customer’s site. We shall not be liable in the event the software program is not compatible with the Customer’s hardware and/or software, unless we have performed consulting Services with respect to its compatibility pursuant to a written agreement.

§ 10 Indemnification

Customer shall defend (including reasonable attorneys’ fees), indemnify and hold us harmless from and against all damages, causes of action, claims, liabilities, penalties, personal injuries (including death), environmental damages and tangible property damage caused by Customer’s negligence, strict liability, breach of warranty, breach of this Contract, fault, omissions and willful or wanton conduct arising, without limitation, from the handling, transportation, modification, storage and use of the Products or the Services provided hereunder. Customer assumes all risk of patent infringement by reason of any use Customer makes of the Products in combination with other materials or in the operation of any process.

§ 11 Customer’s Handling/Use of Products

Customer assumes all risks and liability with respect to unloading and discharge of the Products (including failure of discharge or unloading implements or material used by Customer, whether or not supplied by us), storage, handling, sales and use of the Product, and the compliance or noncompliance with all federal and local laws and regulations with respect thereto.

Customer assumes all risk of patent infringement by reason of any use Customer makes of the Product in combination with other material or in the operation of any process.

§ 12 Assignment, offsetting

The Customer shall not be entitled to assign this Contract to third parties without our prior written consent. The same applies to claims and rights arising against us directly by act of law. We shall be entitled, without prior consent of the Customer, to assign the Contract, in whole or in part, to third parties.
The Customer shall be entitled to rights of setoff only if its counter-claims have been legally determined, are undisputed or are acknowledged by us in writing.

§ 13 Termination

Should we for any reason elect to suspend manufacture of any Product or discontinue any Service which is the subject of any Contract or curtail production or sale of the Product or provision of a Service in consequence of the application of any governmental regulation or order which will, in our reasonable judgment, render the production, marketing or transportation of the Product or provision of the Service economically, technically or commercially impracticable, we may terminate the Contract upon thirty (30) days prior written notice to Customer. If Customer fails to perform any of the terms of this Contract, we may at our option defer shipments until the default is remedied and/or treat such default as a breach of the entire Contract.

§ 14 Governing Law; Dispute resolution; arbitration.

All disputes between the parties shall be exclusively governed by, and construed in accordance with, the laws of the State of Ohio, without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods (CIGS) shall not apply.

Any dispute (in tort, contract or otherwise) including those arising in connection with this Contract shall be finally settled by binding arbitration in Cleveland, Ohio, U.S.A. under then current Rules of the International Institute for Conflict Prevention and Resolution, CPR®, by one arbitrator appointed in accordance with such rules.

The arbitration shall be governed by the Federal Arbitration Act, tit. 9 U.S.C. Sections 1-16, and judgment upon the award rendered may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of such award and an order of enforcement as the case may be.

The arbitrator shall not be empowered to grant punitive or exemplary damages or any damages in excess of those damages permitted or limited under the express terms of this Contract.

The party prevailing on substantially all of its claims in arbitration shall be entitled to recover its costs, including attorneys’ fees, for the arbitration proceeding, as well as any ancillary proceedings, including a proceeding to compel or enjoin arbitration, to request interim measures or to confirm or set aside an award. Any arbitration proceeding is subject to the confidentiality provisions of this Contract.

§ 15 Force Majeure

We shall have no liability or obligation to Customer of any kind, including but not limited to any obligation to deliver the Products or provide the Services, arising from any delay or failure to perform all or any part of the Contract as a result of causes, conduct or occurrences beyond our reasonable control, including, but not limited to, commercial impracticability, fire, flood, pandemics, act of war, civil disorder or disobedience, acts of public enemies, problems associated with transportation, acts or failures to act of any state, federal or foreign government or regulatory authorities, labor disputes, strikes, or failures of suppliers to make timely deliveries of materials, goods or services to us.

§ 16 Attorneys’ Fees

In the event it becomes necessary for us to enforce the terms and conditions of the Contract by litigation or otherwise, or to defend ourselves in any controversy, litigation, claim, demand or cause of action arising out of or as a result of the Contract, the Products, or the Services, and if we are the substantially prevailing party in said controversy, litigation, claim, demand or cause of action, then we shall be entitled to recover, in addition to any other relief granted or damages assessed, our reasonable attorneys’ fees, expert witness fees, costs and expenses of litigation.

§ 17 Waiver

No claim or right arising out of a breach of this Contract can be discharged, in whole or in part, by a waiver or renunciation of the claim or right unless the waiver is supported by consideration and is in writing and signed by the aggrieved party.

§ 18 Severability

If any term, covenant, warranty or condition of this Contract, or the application thereof to any person or circumstance shall, to any extent, be held or deemed invalid or unenforceable, the remainder of this Contract or the application of such term, covenant or provision, to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each remaining term, covenant or provision of this Contract shall be deemed valid and enforced to the fullest extent permitted by law.

§ 19 OFAC Lists

None of Customer or any of its officers, directors or employees is on any list of prohibited countries, individuals, organizations or entities that is administered or maintained by the U.S. Office of Foreign Assets Control (“OFAC”), including but not limited to the List of Specially Designated Nationals and Blocked Persons, or on any similar list not maintained by the OFAC. Customer has and will maintain a process to ensure compliance with this Section 19.