STANDARD TERMS AND CONDITIONS
1. TERMS APPLICABLE
The “Agreement” between Engenuity Inc. (“Seller”) and “Buyer” consists of the price quotation, purchase order, sales order, and any other documentation made a part thereof, together with these Standard Terms and Conditions (“Terms”) which are incorporated into every transaction with Seller. Any of Buyer’s terms and conditions which are in addition to or different from Seller’s Terms, that are not separately agreed to by Seller in writing, shall be of no effect. Objections to any of Seller’s Terms shall be deemed waived by Buyer if Seller does not receive Buyer’s written notice of such objection within ten (10) days from the date of the Agreement. In the absence of a written objection, Buyer will be deemed to have accepted Seller’s Terms upon Buyer’s (i) acceptance of delivery of any Products and/or (ii) use of any Products. As used herein: “Equipment” means any tangible goods, including computer hardware; “Services” means any services performed or provided by Seller; and “Software” means a set of instructions, data or programs written by Seller and used to operate computers and execute specific tasks. The term “Products” is used herein as a term of convenience to refer to any Equipment, Services and/or Software, as applicable, that is the subject of an Agreement.
2. DELIVERY
All delivery dates are good faith estimates and are not “of the essence.” Buyer’s failure to promptly make advance or interim payments, supply technical information, drawings or approvals, and force majeure events may result in a delay in delivery. Unless otherwise agreed in writing by Seller, delivery of all Products will be made Ex Works (EXW) - Seller’s plant (or EXW - point of manufacture, for any Products shipped direct to Buyer from any location other than Seller’s plant). Upon placement of Products in the actual or constructive possession of Buyer’s carrier, which shall constitute delivery to Buyer, all risk of loss shall shift to and be borne by Buyer. Unless otherwise specified in the Agreement, all transportation charges, customs, duties, consular fees, insurance charges and other applicable charges shall be borne by Buyer.
3. PAYMENT
Payment is due on the date specified on Seller’s invoice, notwithstanding any period of delay caused by Buyer which prevents Seller from timely delivering the Product as arranged. Buyer shall be liable for any extra labor and/or materials costs incurred by Seller as a result of such delay. Interest shall accrue at the rate of 1.5% per month on all past due amounts. If Buyer fails to make any payment in accordance with the Agreement, Seller shall have the right, but not the obligation, at its discretion (i) to defer further shipments until such payments are made and satisfactory credit arrangements are established, or (ii) cancel the unshipped balance of any Agreement. Seller’s remedies are cumulative and the remedies described herein are in addition to and not in lieu of any other remedies available to Seller at law, in equity or by statute. In the event of nonpayment, Seller fully reserves its right to seek recovery of all applicable damages, including direct, special and exemplary damages.
4. WARRANTY
(a) Seller warrants to Buyer that Equipment manufactured by it will be free from defects in materials and workmanship (the “Equipment Warranty”) for a period of one (1) year commencing on the date of delivery (the “Equipment Warranty Period”). Seller also warrants to Buyer that Software written by it, when deployed on supported hardware, utilizing a supported operating system, will materially conform to its published specification in the relevant documentation (the “Software Warranty”) for a period of ninety (90) days commencing on the date of delivery (the “Software Warranty Period”). If during a Warranty Period, Buyer discovers a warranted defect, then Buyer shall have ten (10) days from the date of discovery to make a written request for warranty consideration. Upon receipt by Seller of Buyer’s written request for warranty consideration, Seller will issue to Buyer a Return Merchandise Authorization (“RMA”) number valid for thirty (30) days commencing on the date of issue (the “RMA Period”). Buyer must have a valid RMA to return Equipment or Software to Seller, at the address designated on the RMA and at the sole expense of Buyer. Seller will have no warranty obligations under this section if Buyer fails to give Seller the aforementioned written ten (10) day notice or if Buyer fails to return Equipment and/or Software during the RMA Period or both. Additionally Seller will have no warranty obligations under this section if the Equipment and/or Software: (i) has not been operated and/or maintained by competent personnel in accordance with generally approved industry practices and Seller’s written instructions; (ii) is used in connection with any mixture, substance or operating condition other than that for which it was designed; (iii) has been damaged; (iv) experiences ordinary wear and tear or in respect of any part which by its nature is exposed to severe wear and tear or is considered consumable; or (v) for expenses incurred for work in connection with removal of the defective Products and reinstallation following repair or replacement. (b) Seller warrants to Buyer that at delivery, the Products will be free of any liens or encumbrances. If any such liens or encumbrances are discovered, Seller will cause them to be discharged promptly after notification from Buyer of their existence. (c) Products deemed by Seller to have a valid warranty claim will be repaired or replaced, with comparable new or remanufactured Products, at the sole discretion of Seller. (d) THE EXPRESS WARRANTIES SELLER MAKES IN THIS SECTION 4 ARE THE SOLE WARRANTIES OF SELLER WITH RESPECT TO THE PRODUCTS. SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER STATUTORY, ORAL, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLER’S WARRANTY DOES NOT COVER DETERIORATION BY CORROSION, INCLUDING STRESS CORROSION OR ANY OTHER CAUSE OF FAILURE OTHER THAN DEFECTS OF WORKMANSHIP AND MATERIAL. (e) With respect to any Product or part thereof not specifically manufactured by Seller, including instances where such Product or part is incorporated into or combined with a Product or part thereof that is manufacture by Seller, Seller shall assign to Buyer those warranties made to Seller by the manufacturer to the extent assignable. (f) If Buyer alters or repairs a Product covered by this warranty without the prior written authorization of Seller, any and all warranties applicable to such Product shall automatically be deemed null and void and Seller shall have no liability for such allegedly defective Product or for any claims for damages or expenses of any kind whatsoever, including direct, special or consequential, arising from or related thereto.
5. NON-PRODUCTIVE TIME
Neither Buyer nor any of its affiliates shall have any right to charge Seller with any amounts related to non-productive time (NPT). Equipment rental and Software subscriptions will not be reduced or suspended for any actual or perceived NPT.
6. LIMITATION OF LIABILITY
The remedies of Buyer set forth in Sections 4(a)-(b) of these Terms are exclusive and the aggregate liability of Seller and its affiliates and subcontractors for any claims of any kind, for any loss or damage arising from or related to the Agreement or from the performance or breach thereof, or from the manufacture, sale, delivery, resale, repair or use of any Product, whether based on contract, warranty, tort, strict liability, indemnity, or otherwise, shall in no event exceed the price allocable to the Product which gave rise to the claim. All liability of Seller, its affiliates and subcontractors under the Agreement and these Terms for any such claim shall terminate on the first anniversary of the date of delivery of the Product. The provisions of this Section 5 shall supersede any inconsistent provisions in any instrument forming part of the Agreement. IT IS UNDERSTOOD THAT THE LIABILITY OF SELLER SHALL BE LIMITED AS PROVIDED HEREIN AND THAT SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THE AGREEMENT OR ANY PRODUCT, FROM ANY CAUSE WHATSOEVER.
7. TRAINING SERVICES
If the Products provided to Buyer include training services (e.g., training on the proper operation, maintenance or repair of a Product or a component thereof), Buyer will defend and indemnify Seller from any claim, suit or liability based on personal injury, illness and death, property damage or economic loss suffered by its employees, contractors or invitees arising from or related to Buyer’s or its employees use or implementation of such training services. This indemnity includes indemnification from and against all related costs, charges and expenses (including attorneys’ fees).
8. INDEMNITY
THE INDEMNITY PROVISIONS SET FORTH HEREIN IN FAVOR OF SELLER SHALL BE ENFORCEABLE REGARDLESS OF WHETHER ANY PERSON ALLEGES OR PROVES THE SOLE, CONCURRENT OR COMPARTIVE NEGLIGENCE, STRICT LIABILITY, OR VIOLATION OF ANY LAW BY THE INDEMNITEE; PROVIDED, HOWEVER, THE INDEMNITOR SHALL NOT BE RESPONSIBLE FOR THE PERCENTAGE OF FAULT, IF ANY, ASSESSED AGAINST THE INDEMNITEE.
9. TAXES
Seller’s prices do not include any sales, use, excise or other taxes. In addition to the price specified herein, the amount of any present or futures sales, use, excise or other tax applicable to the sale or use of the Products shall be invoiced to and paid by Buyer unless Buyer provides to Seller a tax-exemption certificate acceptable to the relevant taxing authorizes.
10. SECURITY INTEREST
Buyer hereby grants Seller a first priority lien and security interest in the Products until all payments called for under the Agreement have been paid in full. Buyer acknowledges that Seller may file a financing statement and may take all other action it deems reasonably necessary to perfect and maintain such security interest in the Products. The Agreement, including these Terms, may be filed as a financing statement at the sole discretion of Seller.
11. NO SET OFF
Neither Buyer nor any of its affiliates shall have any right to set off any claims, charges or damages against Seller or any of its affiliates for amounts owed under the Agreement or otherwise.
12. PATENTS
Unless the Product or any component thereof is designed to Buyer’s specifications, and provided that neither the Product nor any component thereof is used in any manner other than as specified or approved by Seller in writing: (i) Seller shall defend against any suit or proceeding brought against Buyer to the extent it is based on a claim that any Product or any component thereof, infringes upon any United States device patent, provided Seller is notified promptly in writing and is given the necessary authority, information and assistance for the defense of such suit or proceeding; (ii) Seller shall indemnify and hold Buyer harmless from any judgment for damages entered against Buyer in such suit; and (iii) if such judgment enjoins Buyer from using the Product or a component thereof, then Seller shall, at its option: (a) obtain for Buyer the right to continue using such Product or component; (b) eliminate the infringement by replacing or modifying all or part of the Product or component; or (c) take back such Product or component and refund to Buyer all payments on the purchase price which Seller has received, in which case neither Buyer nor Seller will have any claim against the other or arising from or related to the Product, the component or the Agreement. The provisions of this Section 11 contain Buyer’s exclusive remedies and the entirety of Seller’s obligations and liability for patent infringement by any Product or component provided by Seller.
13. TERMINATION
Buyer may only terminate an order upon written notice to Seller and upon payment to Seller of Seller’s termination charges, which shall be specified to Buyer and shall take into account, among other things, expenses (direct and indirect) incurred and commitments already made by Seller in providing the Product and an appropriate profit; provided, that in no event shall Seller’s termination charges be less than twenty-five percent (25%) of the invoiced price. In the event of any bankruptcy or insolvency proceeding brought by or against Buyer, Seller shall be entitled to terminate any order outstanding at any time during the period allowed for filing claims against the debtor’s estate and shall receive reimbursement for its cancellation charges.
14. CHANGES
Seller will not make changes in a Product, requested by the Buyer, unless Buyer and Seller have executed a written change order for such change. The change order will include an appropriate adjustment to price and delivery terms. If the change impairs Seller’s ability to satisfy any of its obligations to Buyer, the change order will include appropriate modifications to the Agreement. If, after the date of the quotation or acknowledgment, new or revised governmental requirements require a change in the Product, the changes will be subject to this Section 13.
15. CONFIDENTIALITY
Buyer acknowledges that all information, drawings, diagrams, specifications and other materials furnished by Seller relating to the capabilities, design, manufacture, use, maintenance and repair of the Products furnished hereunder (collectively, the “Proprietary Information”) is confidential, proprietary and is the sole property of Seller. Proprietary Information also includes any information acquired by Buyer and its employees during any visits to Seller’s offices or other facilities. Buyer acknowledges and agrees that Seller has invested and will continue to invest substantial resources in developing its Proprietary Information and that the Proprietary Information is and shall at all times remain the sole and exclusive property of Seller. Accordingly, Buyer shall: (i) hold all Proprietary Information in strict confidence and take reasonable precautions to protect it from unauthorized use and disclosure (such precautions being no less than Buyer uses to protect its own confidential information and trade secrets); (ii) not reproduce or distribute any Proprietary Information except to Buyer’ employees who reasonably require such information to properly perform their duties; (iii) not reproduce or distribute any Proprietary Information to any third-parties without Seller’s prior written consent (which consent may be granted, refused, delayed or conditioned at Seller’s sole discretion); or (iv) use any Propriety Information in a manner adverse or injurious to Seller. Buyer shall not, directly or indirectly, use, publish, disseminate or otherwise disclose the Proprietary Information except as expressly authorized herein. All copies of Seller’s Confidential Information (regardless of media and including electronic form) shall be immediately returned to Seller upon written demand. Buyer shall be responsible for any unauthorized use or disclosure of Proprietary information by persons under Buyer’s control (e.g., employees, consultants, etc.).
16. FORCE MAJEURE
Seller shall not be liable for failure or delay in delivery due to Force Majeure Events. "Force Majeure Events" means an event beyond the control of Seller, which prevents Seller from complying with any of its obligations under the Agreement, including but not limited to: acts of God (such as, but not limited to, fires, explosions, earthquakes, weather, drought and floods); war, hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilization, requisition, or embargo; rebellion, revolution, insurrection, or military or usurped power, or civil war; riot, commotion, strikes, go slows, lock outs or disorder; acts or threats of terrorism; pandemics, epidemics and other public health emergencies; government regulations or requirements; shortages or failure of raw material, supplies, fuel, power or transportation; breakdown of equipment, or any other causes beyond Seller’s control, whether of similar or dissimilar nature than those enumerated. In such event, Seller shall have such additional time within which to perform as may be reasonably necessary under the circumstances. In no eventshall Seller be liable for any special or consequential damages or claims for labor resulting from failure or delay in delivery.
17. GENERAL
(a) Seller represents that any Products or components thereof manufactured by Seller will be manufactured in compliance with federal, state and local laws applicable to their manufacture and in accordance with Seller’s engineering standards. Seller shall not be liable for failure of the Products to comply with any other specifications, standards, laws or regulations. (b) The Agreement shall inure only to the benefit of Buyer and Seller and their respective successors and permitted assigns. Any assignment of the Agreement or any of the rights or obligations hereunder, by either party without the prior written consent of the other party shall be void. (c) The Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior oral and written understanding between Buyer and Seller concerning the Products, and any prior course of dealings or usage of the trade not expressly incorporated herein shall be of no effect. (d) The Agreement may be modified, supplemented or amended only by a writing signed by the parties. Seller’s waiver of any breach by Buyer of any terms of the Agreement must be in writing. Any failure of Seller to strictly enforce any of the terms and conditions of the Agreement at any time shall not affect, limit or waive Seller’s right thereafter to enforce and compel strict compliance with every term and condition thereof. (e) The Agreement and the parties’ performance thereunder will be governed and constructed according to the laws of the State of Texas. The parties irrevocably submit to the jurisdiction and venue of the state and federal courts sitting in Harris County, Texas (and to any appellate courts to which an appeal may be taken therefrom) and waive any claims as to inconvenient forum. In the event the Agreement pertains to the sale of any Products outside of the United States, the parties agree that the United Nations Convention for the International Sale of Goods shall not apply. (f) The design and specification of standard units or components manufactured or sold by the Seller as described in Seller brochures, sales literature, website, etc. may be discontinued or altered by Seller without notice. (g) Seller endeavors to pack or prepare all shipments so that they will not break, rust or deteriorate in transit, but does not guarantee against such damage. Unless requested in writing by Buyer, no shipments are insured by Seller against damage or loss in transit. Seller will place insurance as nearly as possible in accordance with Buyer’s written instructions and at Buyer’s expense, but in such case, Seller acts only as an accommodating party between Buyer and the insurance company and Seller assumes no liability whatsoever. (h) Waiver by Seller of any breach of any terms and conditions set forth herein shall not be construed as a waiver of any other breach, and the failure of Seller to exercise its rights arising from any default of Buyer hereunder shall not be deemed to be a waiver of such right, which may be exercised at any subsequent time. (i) Seller hereby grants to Buyer a revocable, non assignable, non-exclusive, royalty-free, license to use Seller’s Proprietary Information for purposes of the use, maintenance and repair of a Product to which such confidential and proprietary information pertains and for no other purpose. This license shall be coterminous with Seller’s right to use the Product. (j) Buyer further agrees not to permit any third-party to fabricate the Product or any component thereof, or to reverse engineer the Product or any component thereof, or to use Seller’s drawings to duplicate the Product or any component thereof, or to use Seller’s drawings other than for proper purposes in connection with the Product made the subject of the Agreement. Buyer will defend and indemnify Seller from any claim, suit or liability based on personal injury, illness and death, property damage or economic loss related to or arising from to any Product or component thereof which is fabricated by Buyer or a third-party without Seller’s prior written consent. This indemnity includes indemnification from and against all related costs, charges and expenses (including attorneys’ fees). (k) Seller retains all rights in any invention, improvement, discovery or patent it conceives relating to the Products delivered under the Agreement. (l) Whenever the context may require, any pronoun used in the Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa. s its own standard terms and conditions, even if these were drawn up after these standard terms and conditions of sale. In order to be valid, any derogation must be expressly agreed to in advance in writing.