FLUXWERX TERMS AND CONDITIONS OF SALE
1. AGREEMENT: THE ACCEPTANCE OF CUSTOMER’S ORDER IS EXPRESSLY MADE CONDITIONAL ON CUSTOMER’S ASSENT TO THE FLUXWERX TERMS AND CONDITIONS SET FORTH HEREIN, AND FLUXWERX MANUFACTURING LLC (“COMPANY”) AGREES TO FURNISH THE EQUIPMENT COVERED THEREBY (“EQUIPMENT”) ONLY UPON THESE FLUXWERX TERMS AND CONDITIONS OF SALE. Any terms and conditions that may be contained in any purchase order or other form of Customer shall be absolutely without force and effect, regardless of when received by Company. Notwithstanding the foregoing, Company may set forth Equipment-specific terms in an applicable quote or order confirmation. Any such Equipment-specific terms are incorporated herein by reference and shall be deemed to supplement, but not replace or supersede the terms and conditions set forth herein unless such terms expressly supersede these terms and conditions. No waiver, alteration, or modification of any of the provisions hereof shall be binding on Company unless made in writing and signed by an authorized representative of Company. Company reserves the right to accept or reject any order in whole or in part.
2. CANCELLATION: All orders are non-cancellable, non-returnable and nonrefundable, unless otherwise set forth herein. Cancellation or returns, or modifications of orders (prior to shipment), are subject to Company’s prior written consent in each instance, which may be withheld in Company’s sole discretion. Company reserves the right to re-cost any Equipment based on modifications on a case-by-case basis.
3. PRICE CHANGES: Quoted prices are subject to change with notice to Customer from time to time. Equipment are invoiced at prices prevailing on the date of shipment.
4. PAYMENT; TAXES: Subject to credit approval and unless otherwise set forth on Company’s invoice or otherwise agreed upon by the parties in writing, payment shall be made within thirty (30) days of the date of Company’s invoice. Outstanding balances shall accrue interest at a rate equal to the lesser of one and one half percent (1.5%) per month and the maximum rate permitted by applicable law, from due date until paid, plus Company’s reasonable costs of collection. Company reserves all other rights granted to a company under the Uniform Commercial Code for Customer’s failure to pay for Product(s) or any other breach by Customer of these terms and conditions of sale. Under no circumstances shall Company be obligated to pay or accept any back charges from Customer. There shall be added to the purchase price of each Equipment amounts equal to any sales, use, or equivalent taxes required to be collected by Company, unless Customer provides Company with an appropriate exemption certificate. Notwithstanding any specified payment terms, Company may require payment in advance of shipment if Customer’s credit, in Company’s sole judgment, becomes impaired. The purchase price shall become immediately due and payable and Company may cancel any unfilled portion of a shipment upon Customer’s failure to make any payment when due.
5. SECURITY INTEREST: In the event that the Equipment is delivered to Customer prior to Customer’s remittance of all amounts due and payable for the Equipment under the applicable Order, Customer grants to Company a purchase money security interest in each piece of Equipment delivered hereunder and in proceeds from the sale, exchange, collection, or disposition thereof, until Customer has paid the applicable purchase price in full for such Equipment. Customer shall, upon request by Company, provide all information and signatures required by Company to perfect such security interest. Company reserves all rights granted to a secured creditor under the Uniform Commercial Code, including the right to repossess upon default by Customer.
6. DELIVERY: Unless otherwise set forth in an applicable quote or order confirmation issued by Company, or otherwise agreed upon by Company in writing, delivery terms are EXW (Incoterms 2020). Any surcharges levied on Company by suppliers or freight carriers will be charged to Customer. Customer is advised that quoted ship dates are based on estimates at the time of quotation and that Company will devote its commercially reasonable efforts to meeting such schedules; provided, however, Company assumes no liability for additional costs or damages resulting from late deliveries. Unless otherwise agreed by Company in writing, Company may deliver Equipment in partial shipments or in advance of the specified delivery date. Customer shall be responsible for procuring applicable freight insurance.
7. RISK OF LOSS: Unless otherwise set forth in an applicable quote or order confirmation issued by Company, Company shall not be liable for any Equipment lost, damaged, or destroyed while in transit, and Customer acknowledges and agrees that any risk of such loss, damage, or destruction transfers to, and is assumed by, Customer upon delivery of Equipment to a common carrier or when otherwise placed in transit.
8. INSPECTION, ACCEPTANCE AND TRAINING: Customer shall inspect the Equipment as soon as delivered and report to Company any alleged physical damage to the Equipment. If no such damage is reported within five (5) business days (which shall be subject to Sections 6 and 7) following delivery of the Equipment, the Equipment shall be deemed accepted (“Acceptance”). If Customer provides notice of such defect during the foregoing time period, or if such Equipment thereafter fails to comply with the warranty in Section 11, Company may, as its sole obligations and at its option, either correct the Equipment or, subject to Sections 10, 11 and 12, substitute the defective Equipment or components in the Equipment with non-defective Equipment or components. Company may offer training to Customer and Customer’s personnel on the use of the Equipment at the rates set forth in the Order. Training may be conducted virtually or on-site. Customer shall be responsible for all reasonable travel related costs and expenses incurred in connection with on-site integration and/or training.
9. COMPLIANCE: Customer shall comply with (a) all instructions, requirements and restrictions (if any) set forth in the published specifications for the applicable Equipment (“Specifications”) which are incorporated herein by reference and (b) all applicable federal, state and local laws, rules, regulations, including, without limitation, any of the foregoing related to Customer’s storage, use, removal, and disposal of Equipment and any materials or debris resulting from use of the Equipment.
10. SPECIAL ORDER EQUIPMENT: Customer acknowledges that if this purchase is an order for Equipment comprised of Specified Components (as defined below), the Equipment shall be regarded as ‘Special Order Equipment’, and the provisions of this paragraph supersede any conflicting general terms of these terms and conditions. All Special Order Equipment are subject to a cancellation fee of 100% of the purchase price if cancelled by Customer at any time after the order is placed. Special Order Equipment shall be described in the purchase order at or before the time that their manufacture or assembly commences, and Company disclaims any and all warranties therein. “Specified Components” means specified raw materials, components, sources, brands or suppliers requested by Customer to be used in the manufacture or assembly of Equipment and includes consumables and other products and substances manufactured or supplied by third parties. Notwithstanding the foregoing, Company may decline to design, manufacture, furnish or procure Special Order Equipment at any stage of the process without liability to Customer if such Special Order Equipment is, in Company’s sole opinion, unsuitable or commercially impractical to manufacture as specified. If so, Company will notify Customer, and unless otherwise agreed, Customer will not be obligated to pay any fees for any expenses incurred in connection with the declined Special Order Equipment. Notwithstanding the foregoing, if a Specified Component fails, or is delayed in delivery, Company may delay or cancel the Special Order Equipment’s or Specified Component’s delivery without liability to Customer; provided that Customer shall be obligated to pay Company such costs and expenses actually incurred by Company in procuring such Special Component on Customer’s behalf, including any cancellation or restocking costs imposed. Customer agrees to defend, protect, and hold harmless Company against all suits at law or in equity and from any and all damages, claims, and demands for personal injury or actual or alleged infringement of any United States or foreign intellectual property right and to defend any suit or actions which may be brought against Company for such injury and/or any alleged infringement because of the manufacture and/or sale of the material covered by this Section
11. LIMITED WARRANTY: Unless a different warranty is included in an applicable quotation, and in all events subject to the terms as set forth herein for Special Order Equipment and Third Party Components under Section 12, Company warrants that the Equipment will meet its specifications as set forth in the quotation at the time of shipment, and will be free of defects in materials and workmanship, when subjected to normal, proper and intended usage by properly trained personnel. The warranty lasts from the date of Acceptance and for twelve (12) months thereafter.
Exclusions. In addition to the exclusion for Specified Components and Third Party Components as set out in Section 12, Company warranties for Equipment do not apply to (a) normal wear and tear; (b) accident, disaster or event of force majeure; (c) Customer’s or any third party’s misuse, fault or negligence in connection with the Equipment; (d) causes external to the Equipment such as, but not limited to, design defects in its use, external power failure or electrical power surges; (e) Equipment sold as ‘used’ equipment as set forth in the quotation; (f) installation, removal, use, maintenance, storage, or handling in an improper, inadequate, or unapproved manner by Customer or any third party that Company has not approved or certified (including the carrier), of the Equipment, such as, but not limited to, (i) failure to follow the Specifications and any documentation, supplementary terms, or instructions made available with the Equipment, (ii) operation of the Equipment outside of applicable environmental specifications, use specifications, or other specifications, or otherwise in a manner for which the Equipment was not intended or designed, or (iii) operation of the Equipment with unapproved software, materials or other products; or (k) components (including, without limitation, Specified Components) manufactured in accordance with requirements given by Customer to Company.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. COMPANY DOES NOT WARRANT THAT THE EQUIPMENT WILL MEET CUSTOMER’S REQUIREMENTS. NO WARRANTIES ARE MADE BY COMPANY FOR ANY OF COMPANY’S LICENSORS OR SUPPLIERS UNLESS EXPRESSLY SET FORTH HEREIN. ALL EQUIPMENT, INCLUDING THOSE REQUIRED TO MEET EXACT SPECIFICATIONS, SHALL BE SUBJECT TO INDUSTRY STANDARD TOLERANCES AND VARIATIONS.
12. SPECIFIED COMPONENTS AND THIRD PARTY COMPONENTS: Company does not support or make any warranties about (i) Specified Components or (ii) products manufactured or supplied by third parties and incorporated into the Equipment (‘Third Party Components”). Customer shall look to the manufacturers’ terms and related warranties in respect of any defects in the Equipment related to Special Components, and Company shall have no obligation to Customer arising therefrom. The provision and use of Third Party Components are governed by a third-party manufacturer’s own contract terms. Customer must look directly to the relevant third-party manufacturer for product support, warranties, and to make warranty claims concerning Third Party Components. Company agrees, however, to assign to Client any warranty rights that Company may have from the original manufacturer or third party supplier, concerning the Third Party Components (and Special Components procured on Customer’s behalf, if applicable) to the extent the original manufacturer or third party supplier allows. Equipment which includes Specified Components and/or Third Party Components may be subject to price increases at any time, before or after the issuance of the applicable quotation, due to changes in the Specified Component and/or Third Party Component supplier’s prices. Company will not be obligated to provide quantities of Equipment incorporating Specified Components and/or Third Party Components due to a failure of such suppliers. Client represents and warrants that the inclusion of Specified Component(s) in Special Order Equipment will not infringe any third parties’ rights, and Client will indemnify and hold Company harmless from any such third party claims in accordance with Section 17.
13. ILLUSTRATIONS: Drawings, Specifications, photographs, such other specifications and other illustrations advertising matter and details in booklets and catalogues supplied by the Company represent generally the Equipment specified, but not necessarily the Equipment that is the subject of the quotation, and shall not form part of any contract based thereon or be used for purposes of construction, design or erection unless expressly specified by Company.
14. OWNERSHIP. The sale of the Equipment furnished hereunder does not convey any license by implication, estoppel, or otherwise, under any proprietary or intellectual property rights of Company covering any combination of the Equipment with other materials. In all cases, intellectual property rights in and relating to the Equipment and each of its components, including but not limited to their formulation, design and all improvement thereto, shall be and
remain the exclusive property of Company and its licensors, as the case may be. All rights not expressly granted herein are reserved.
15. CONFIDENTIAL OR PROPRIETARY INFORMATION: Company may provide proprietary information to Customer in connection with the Equipment. Customer agrees that such information shall include any and all information which Customer knows or reasonably should know is confidential to Company. For avoidance of doubt, all Specifications, technical details, design specifications, models, drawings and pricing set forth in a quotation shall be the valuable and confidential information of Company. Such information shall remain the exclusive property of Company, and Customer agrees to preserve and protect such information and to take all other acts reasonably requested by Company with respect to it. Upon Company’s request, Customer will return to Company all documents containing Company’s proprietary information and retain no copies thereof. Customer agrees that its obligation to protect Company’s confidential and proprietary information shall be ongoing and shall not cease upon completion or termination of these terms and conditions.
16. ADVICE: Company may, in its sole discretion, provide Customer with technical advice regarding the Equipment or assistance in exercising Customer’s rights under any third party manufacturers’ warranty, which if provided will be gratuitous and without any warranties of any kind (the “Advice”). To the extent that Customer desires to procure Equipment support services from Company, such services shall be subject to a separate agreement setting forth the terms of the services, the duration and cost.
17. INDEMNIFICATION: Customer is solely responsible for its storage, use, removal, and disposal of the Equipment and any materials or debris resulting from use of the Equipment. To the fullest extent permitted by applicable law, Customer agrees to defend, indemnify, and hold harmless Company, its subsidiaries, affiliates, parents, partners, their successors and assigns, and each of their past and present directors, officers, employees and agents (collectively “Indemnitees”), jointly and severally, from and against any and all losses, damages, liabilities, demands, claims, actions, judgments, charges, court costs, and legal or other expenses, including, without limitation, reasonable attorneys’ fees and expenses, which Indemnitees may sustain, incur, or become liable for in defending or compromising any suit, action, or other proceeding arising out of, related to, or in any way connected with (i) Customer’s or any third parties’ use of the Equipment (including the sale or transfer of the Equipment, as applicable) including, but not limited to, (a) any misuse of such Equipment, (b) personal injury incurred, (c) actual or alleged infringement of any United States or foreign intellectual property right related to the use of the Equipment (d) any other acts or omissions, willful misconduct or negligent misconduct, whether active or passive, on the part of Customer or any third to party related to the Equipment or (e) use of the Equipment in violation of applicable law; or (ii) Customer’s use of the Advice, including use of or reliance on the Advice by any third parties to whom Customer discloses the Advice; provided, however, Customer shall have no indemnity obligations under this paragraph for any losses, damages, liabilities, demands, claims, actions, judgments, charges, court costs, and legal or other expenses to the extent caused by the willful misconduct or negligent misconduct of an Indemnitee.
18. LIMITATION OF LIABILITY: TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, (A) IN NO EVENT WILL COMPANY BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING LOST PROFIT, LOSS OF GOODWILL OR DIMINUTIIN IN VALUE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) COMPANY’S TOTAL LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO ANY EQUIPMENT SHALL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL AMOUNTS PAID TO COMPANY BY CUSTOMER FOR THE EQUIPMENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT AGAINST COMPANY. WITHOUT LIMITING AN APPLICABLE WARRANTY, NO ACTION RELATING TO THE EQUIPMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE YEAR AFTER ACCEPTANCE. CUSTOMER AGREES THAT COMPANY’S AFFILIATES HAVE NO OBLIGATION OR RESPONSIBILITY IN CONNECTION WITH THE EQUIPMENT OR ANY ORDER THEREFORE.
19. EXPORT: These terms and conditions are subject to all laws, regulations, orders and other restrictions on the export from the U.S. or re-export of the Equipment. The export controls may include, among others, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of items from the U.S. and their re-export to or from other countries. Customer shall not export directly or indirectly any Equipment to any country for which an export license or other governmental approval is required at the time of export without first obtaining all necessary licenses and approvals. Customer shall provide reasonable cooperation to Company in any official or unofficial audit or inspection related to applicable export or import control laws or regulations and Customer shall hold Company harmless from any liability arising from Customer’s failure to comply with such laws, regulations and orders, or the provisions of this Section 19.
20. FORCE MAJEURE: Company shall not be liable for any delays in manufacturing the Equipment or making delivery of the Equipment where occasioned by strikes, differences with workers, or any causes beyond the control of Company, including, but not limited to, fires, floods, accidents, action of any governmental authority, war, insurrection or riots, or shortages of labor, energy, raw materials, production facilities, or transportation or any disruptions in supply chains. Where delays or failures of delivery are caused by labor difficulties, Company shall not be obligated to seek or obtain any settlement which, in Company’s sole judgment, is not in Company’s best interest.
21. ARBITRATION: The parties agree that any and all disputes, claims or controversies arising out of or relating to any Product(s) that are not resolved by their mutual agreement (a) shall be brought by a party in such party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding and (b) shall be submitted to final and binding arbitration before JAMS (formerly Judicial Arbitration and Mediation Services), or its successor. The arbitration will be conducted in accordance with the provisions of JAMS’ Comprehensive Arbitration Rules and Procedures in effect at the time of filing of the demand for arbitration. The Arbitration shall take place in the city in which Company’s headquarters are located and in the English language. The parties will share equally in the costs of the arbitration. The provisions of this Section may be enforced by any Court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys’ fees, to be paid by the party against whom enforcement is ordered.
22. MISCELLANEOUS: Customer acknowledges that is has not been induced to purchase any Equipment from Company by any representation or warranty not expressly set forth herein. This document constitutes the entire agreement of the parties and supersedes all existing agree-ments and all other oral or written communication between them concerning its subject matter. None of the terms and conditions contained herein may be added to, modified, superseded, or otherwise altered except by a written document signed by an authorized representative of Company. The paragraph headings contained herein are intended for convenience of reference only and shall not affect the interpretation of any provision. If any provision of these Terms and Conditions of Sale is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. These Terms and Conditions of Sale and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the state in which Company is headquartered, without reference to its choice of laws rules that would require the application of the laws of a different jurisdiction. Any Order placed under this Agreement may be executed in counterparts (including by electronic signature), each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures may be exchanged via electronic mail and shall be binding to the same extent as if original signatures were exchanged.