Terms and Conditions of Sales and Delivery

Brueckner Group USA, Inc.

NOTICE: All offers to sell, all acceptances of offers to purchase or acceptances of offers to sell and the sale of all products described in this document (“Products”) and the services described in this document (“Services”) are made solely pursuant to the contract‐specific terms and conditions described on the front side of BRUECKNER GROUP USA’S (“Seller’s”) purchase order acknowledgment and to these Terms and Conditions of Sale and Delivery. Any purported acceptance by Seller of a purchase order is expressly conditional upon Purchaser’s acceptance of these terms and conditions of sale and delivery. Seller hereby objects to any and all additional or different terms and conditions of sale and delivery proposed by Purchaser. Purchaser will be deemed to have accepted these Terms and Conditions of sale unless it cancels its purchase order within five business days after first receipt of any document referencing these Terms and Conditions.

 

1. Acceptance. All orders received by Seller are subject to final acceptance or confirmation by Seller and no terms or orders are binding upon Seller until so accepted.

 

2. Deliveries. All deliveries are F.C.A. … named place (UCC Terms). All deliveries shall be made via common carrier or some other reasonable means chosen by Seller. All risk of loss to Products sold shall pass to Purchaser upon delivery by Seller of such Products to a common carrier. Title to the Products shall remain with Seller until Purchaser pays the purchase price in full to Seller. Delivery is conditional on availability of Products and transportation, the timely receipt by Seller of documents necessary for the completion of the order, any down payment, and Purchaser’s compliance with these terms and conditions. Delivery schedules represent Seller estimates only, and partial deliveries are permissible. Seller will use reasonable efforts to meet delivery schedules. Seller will not be liable for any delay in the performance of orders or contracts, or in the delivery or shipment of Products, or for any damages suffered by Purchaser by reason of such delay. Delivery is subject to Purchaser maintaining credit satisfactory to Seller. Seller may suspend or delay performance or delivery at any time pending receipt of assurances, including full or partial prepayment or payment of any outstanding amounts owed, adequate to Seller in its discretion, of Purchaser’s ability to pay. Failure to provide such assurances shall entitle Seller to cancel this contract without further liability or obligation to Purchaser.

 

3. Prices. Prices are quoted F.C.A. …named place (UCC Terms). Listed or published prices are subject to change by Seller without notice to Purchaser. Prices do not include sales, use, excise, privilege or any similar tax levied by any government, and Purchaser shall pay any such applicable tax. Upon the request of Seller, Purchaser shall provide Seller a tax exemption certificate acceptable to the appropriate taxing authorities.

 

4. Terms of Payment. In the case of Service‐only contracts, Spare Parts contracts under $100,000, and other contracts under $100,000 for Products (with or without bundled Services), the purchase price shall be due in full by Purchaser thirty days after date of invoice or as otherwise provided in Seller’s purchase order acknowledgment. For all other contracts and orders, unless otherwise provided for by express written agreement of the Seller and Purchaser, 40% of the contract amount shall be paid upon Purchaser’s receipt of our Order Confirmation, 30% of the contract amount shall be paid at the conclusion of the design review or Seller’s technical review, 20% of the contract amount shall be paid on Seller’s notice to Purchaser that Seller is prepared to deliver or provide the Products and/or Services, and the final 10% of the Contract Amount, plus all other remaining unpaid fees, charges and costs under the Contract shall be paid no later than thirty (30) days after the date indicated on Seller’s final invoice. Extensions of credit, if any, may be changed or withdrawn by Seller at any time. Invoices not paid on their date due will be subject to carrying charges which shall accrue and be added to the unpaid balance in the amount of one and one‐half percent (1‐1/2 %) per month of any overdue unpaid balance, or the maximum rate permitted by law, whichever is less.

 

Purchaser shall reimburse Seller for the costs of collection, including, without limitation, reasonable attorneys’ fees, of any overdue amount owed by Purchaser to Seller, and such collection costs shall also be subject to the carrying charges. Purchaser may not hold back or set‐off any amounts owed to Seller in satisfaction of any claims asserted by Purchaser against Seller.

 

5. Returned Goods and Claims. Within ten (10) business days after Purchaser’s receipt of Products sold, Purchaser must give written notice to Seller of any claim by Purchaser based upon the condition, quantity, or grade of the products sold or of any claimed nonconformity with Purchaser’s specifications. Purchaser’s failure to comply with this Paragraph shall constitute irrevocable acceptance by Purchaser of the Products delivered and shall bind Purchaser to pay to Seller the full price of such Products.

 

6. Cancellation/Changes. Purchaser may not cancel or change an order once placed with and accepted by Seller except with the prior written consent of Seller and upon terms that will indemnify Seller against any loss. Seller may correct mathematical, clerical or transcription errors.

 

7. Instruction Manuals and Drawings. Complete operating instructions, parts lists, wiring diagrams and systems layout drawings are furnished at no additional cost. All equipment is pre‐wired to terminal blocks, ready for installation by Purchaser’s personnel. Drives and interconnecting cabling between cabinets, operators’ consoles and drives are shipped separately and have to be mounted and connected by the Purchaser at its own expense. Corresponding layout drawings are furnished at no additional cost.

 

8. Installation and Startup. Technical personnel for installation, set‐up, start‐up or supervision of installation are not included in our quoted prices, but available upon request at the rates as indicated on our “Rates for Technical Personnel” sheet. Start‐up consists of: check‐out, necessary adjustment of completed installation, electrical connections, alignments, etc. made by the Purchaser’s personnel.

 

9. Limited Warranty. Seller warrants that the Products sold will be free from defects in material and workmanship for a period of one (1) year from the date of delivery to the original Purchaser, except that Purchaser’s exclusive remedy with respect to electrical parts, attachments, accessories to the main equipment and any part not manufactured by Seller, shall be under the applicable manufacturer’s warranty, if any, to the exclusion of any warranty from Seller. Subject to the foregoing, Seller will repair, or in its sole discretion, replace, any Product found to be defective at the time of delivery.

 

This limited warranty does not cover (i) normal operator maintenance; (ii) normal wear and tear; (iii) use or storage under circumstances exceeding specifications; (iv) abuse; (v) unauthorized repair or alteration including repair by Purchaser; (vi) accident; (vii) failure to follow installation, maintenance and operating instructions; or (viii) damage caused by natural calamities such as fire, storm, or high wind. This limited warranty is Purchaser’s exclusive remedy. It shall not be deemed to have failed of its essential purpose so long as Seller is willing and able to repair or, in its

sole discretion, replace the defective Product in the manner specified. Descriptions, representations and other information concerning the Products contained in Seller’s catalogs, advertisements or other promotional materials or statements or representations made by Seller’s sales representatives or distributors shall not be binding upon Seller and shall not be part of this limited warranty.

 

Except as provided herein, Seller shall not be liable to Purchaser in any manner with respect to Products. In no event shall Seller’s liability to Purchaser ever exceed the purchase price of the allegedly defective Product. Except as provided herein, Seller shall not be liable for transportation, labor or other charges for adjustments, repairs, replacements, installation, or other work which may be done upon or in connection with the Products sold.

 

SELLER SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING LOST PROFITS OF PURCHASER, whether arising from any defect in the Products, from any use of the Products, from any inability to use the Products, on account of any Services, or otherwise, whether in tort or contract, or as a warranty claim or asserted under any other theory of liability of Seller, whether at law or in equity, arising under or related to the Contract, or relating to the Products or Services or obligations of the Seller contemplated by the Contract.

 

All Products manufactured by or pursuant to the specifications of any company affiliated by fifty percent (50%) or more common ownership with Seller shall be free of any rightful claim of any third party for infringement of any U.S.A. patent. Provided Purchaser promptly notifies Seller of any claim of infringement and thereafter cooperates fully with Seller, Seller shall, at its option and expense, (i) settle or defend such claims, (ii) modify or replace the Product so that it is non‐infringing, or (iii) remove the Product and refund the purchase price (less reasonable depreciation). The foregoing shall be Seller’s entire liability for any claimed patent or other intellectual property infringement and is subject to the overall limitations of liability stated above.

 

NO OTHER EXPRESS WARRANTIES AND NO IMPLIED WARRANTIES OF ANY TYPE, WHETHER OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, TITLE OR OTHERWISE, OTHER THAN THOSE EXPRESSLY SET FORTH HEREIN (WHICH ARE MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES) SHALL APPLY TO THE PRODUCTS.

 

The application of the Products and the output or performance capabilities and operational costs of the Products are not warranted. These will vary depending on maintenance, amount, method of operation and other factors not within Seller’s control.

 

10. Company Specifications and Safety Devices. The Purchaser shall follow all recommendations and procedures established by the Company prior to or after the sale of Products, including without limitation, erection, maintenance, intended use, and safety devices and procedures for Products; and the Purchaser shall see that its employees, agents, representatives and others on its premises do the same. The Purchaser shall not modify, alter, remove or change any safety devices on the Products, and the Purchaser shall see that its employees, agents, representatives and others on its premises do the same. The Purchaser agrees to indemnify and hold the Seller harmless from and against any and all claims, causes of action, costs, fees and expenses (including reasonable attorneys’ fees) arising out of, or attributable to, any claim or proceeding asserted or brought against the Company which relates to or arises out of the failure of the Purchaser or its employees, agents, representatives or others on its premises to follow the recommendations and procedures established by the Company.

 

11. Security Agreement. Purchaser hereby grants to Seller a continuing purchase money security interest in all Products sold and/or delivered to it and to the proceeds thereof. Purchaser shall execute and deliver any financing statements and other documents that Seller may reasonably require for the creation and perfection of Seller’s security interest and Purchaser hereby authorizes Seller to do all other acts reasonably necessary for the establishment, perfection, preservation, and enforcement of its security interest. Purchaser hereby appoints Seller or its representative as Purchaser’s agent for the purpose of signing any UCC statements that Seller, in its discretion, decides to file with government agencies for the purpose of protecting its right of payment and its interest in the Products as collateral for payment in full by Purchaser.

 

12. Limitations. Any action by Purchaser under or relating to this Agreement or the Products sold must´be commenced within one (1) year after such cause of action has accrued.

 

13. Choice of law. This Agreement and any dispute or claim relating to it shall in all respects be governed by and construed according to the laws of the State of New Hampshire including N.H. Rev. Stat. Ann. Chapter 542 governing the arbitration of disputes. In the event Seller contracts with a Purchaser located in a country which is a Party to the 1980 United Nations Convention on the International Sale of Goods (“UNCISG”), the parties hereby agree that this Agreement and any dispute or claim relating to it shall not be governed by the provisions of the UNICISG; rather, this Agreement and any dispute or claim relating to it shall be governed by and construed according to the laws of the State of New Hampshire, including its provisions of the Uniform Commercial Code (N.H. Rev. Stat. Ann. Chapter 382‐A and its successor provisions) (and as if all parties to this Agreement were located within the State of New Hampshire and the performance of this Agreement were to be performed solely within the State of New Hampshire).

 

14. Arbitration. Except for the enforcement of Seller’s security interest, all claims or controversies arising out of or related to the purchase and sale or use of the Products or these terms and conditions shall be settled by binding arbitration in Portsmouth, New Hampshire in accordance with the laws of the State of New Hampshire and the rules then obtaining of the American Arbitration Association. Judgment upon the arbitral award may be entered and enforced in any court of proper jurisdiction. These Terms and Conditions, as acknowledged by Purchaser through the Order Confirmation and actions taken consistent with this Agreement constitute a written agreement to arbitrate between Seller and Purchaser.

 

15. Entire Agreement. Seller and Purchaser acknowledge that these Terms and Conditions of Sale, together with Seller’s invoice, constitute the entire agreement between Seller and Purchaser with regard to the sale or transfer of the Products sold and supersede all prior oral or written statements of any kind made by the parties or their representatives. These Terms and Conditions of Sale and Delivery may not be amended, modified, or supplemented except by written agreement executed by Seller and Purchaser. The provisions of the Agreement are hereby deemed by the parties to be severable and the invalidity or unenforceability of one provision shall not affect the validity or enforceability of any other provision.