Rochester Specialty Products LLC Terms and Conditions of Sale
1. AGREEMENT & ACCEPTANCE. ALL SALES BY ROCHESTER SPECIALTY PRODUCTS LLC (“RSP”) OF ANY PRODUCTS (COLLECTIVELY, “PRODUCTS”), OR ANY PARTS (“PARTS”) TO THE PURCHASER (“CUSTOMER”), SPECIFIED IN THE ASSOCIATED SALES ORDER, ORDER CONFIRMATION, INVOICE, OR QUOTATION FROM RSP (“ORDER”) SHALL BE EXCLUSIVELY GOVERNED BY THESE TERMS AND CONDITIONS (“TERMS”). EXCEPT FOR THE ITEM TYPE, QUANTITY, REQUESTED DELIVERY DATES AND LOCATION, THESE TERMS TAKE PRECEDENCE OVER CUSTOMER’S ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS WHETHER CONTAINED ON A PURCHASE ORDER OR OTHER DOCUMENTATION WHICH RSP HEREBY REJECTS. CUSTOMER’S RIGHT TO THE PRODUCTS AND/OR PARTS IS CONTINGENT UPON CUSTOMER’S ACCEPTANCE OF THESE TERMS, ANY CHANGES TO THE TERMS MUST SPECIFICALLY BE AGREED TO IN WRITING EXECUTED BY RSP AND CUSTOMER BEFORE BECOMING BINDING ON EITHER PARTY. RSP EXPRESSLY OBJECTS TO ALL TERMS AND CONDITIONS OF CUSTOMER’S ORDER ADDITIONAL TO OR DIFFERENT FROM THOSE CONTAINED HEREIN. TO THE EXTENT A CONFLICT OR INCONSISTENCY EXISTS BETWEEN THESE TERMS AND ANY DOCUMENT SUBMITTED TO RSP BY CUSTOMER, THESE TERMS WILL CONTROL.
2. LICENSE FOR SOFTWARE OR FIRMWARE. If Customer has purchased PRODUCTS or PARTS that include software or firmware, then this Section 2 shall apply. Subject to these Terms, RSP grants to the Customer a non-exclusive, non-transferable license to use the software or firmware that is installed on the PRODUCT or PART, solely in connection with Customer’s use of the PRODUCTS or PARTS. Customer may not modify, reproduce, decompile, reverse engineer or transfer the softwareor firmware without RSP’s prior written consent.
3. DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY AGREED TO BY RSP IN WRITING, RSP DOES NOT MAKE, AND HEREBY DISCLAIMS, ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO WARRANTIES ARE MADE BY ANY OF RSP’S LICENSORS OR SUPPLIERS. No agent, representative or employee of RSP has any authority to make any representations or warranties on behalf of RSP. RSP has sole responsibility in the exercise of its reasonable discretion for determining the cause and nature of a PRODUCT or PART defect, and RSP’s determination with regard thereto shall be final, subject to the dispute resolution provisions of these Terms. The exclusive remedy for any breach of any warranty made by RSP shall be, at RSP’s option, the repair, replacement, or re-performance of such PRODUCT or PART, or the refund of the purchase price for such PRODUCT or PART. When notifying RSP of any PRODUCT or PART that fails to meet any applicable warranty, Customer shall comply with RSP’s then-current Return Material Authorization procedure. RSP reserves the right to charge for service time expended if a defect or non-conformity is due to any cause not covered by any applicable warranty. In all cases, RSP reserves the right to inspect the PRODUCT or PART that is subject to a claim under any applicable warranty. In order to to respond to a claim under any applicable warranty, RSP may require a copy of the original purchase receipt for the applicable PRODUCT or PART, as well asevidence of full payment, the warranty certificate, installation document, or evidence of the warranty extension and payment thereof. The model/serial number must be included on the documentation provided in order to determine entitlement under any applicable warranty. Unresolved or pending financial issues between the Customer and RSP at the time of trouble call reporting will have to be resolved before material exchange can occur. Customer agrees to provide reasonable access for RSP to conduct such inspection. If a PRODUCT or PART’s direct connectivity to enable RSP to perform remote firmware updates, fault alerts, and remote diagnostics, Customer will pay RSP’s then current service fees to perform on-site troubleshooting and firmware updates associated with any claim under any applicable warranty. Customer will pay freight on PRODUCTS or PARTS shipped to Customer that are not covered by any applicable warranty. RSP will pay freight on PRODUCTS or PARTS which are covered by any applicable warranty. RSP owns, and Customer hereby assigns to RSP ownership of, any part, component, or item removed from any PRODUCT or PART by RSP under these Terms for any reason. RSP may, at its discretion, use new and/or reconditioned parts in performing arranty repair and in building replacement parts. RSP reserves the right to use PRODUCTS or PARTS of original or improved design in the repair or replacement. Notwithstanding anything contained in these Terms to the contrary, no warranty made by RSP shall be deemed to cover, and RSP hereby disclaims responsibility for, defects, nonconformities, or damage caused by:
• Shipping or transportation damages.
• Improper installation or use by CUSTOMER.
• Water intrusion or exposure of the PRODUCT or PART to moisture.
• Exposure to unsuitable environmental conditions, including but not limited to damage due to lightning strikes.
• Corrosion or rust.
• Unauthorized or abnormal use or operation.
• Negligence or accidents, including but not limited to lack of maintenance or improper maintenance.
• Material or workmanship not provided by RSP or its authorized service partners.
• Relocation of the commercial PRODUCT or PART from its original installation location.
• Alteration of equipment without prior approval by RSP.
• Acts of God, such as earthquake, flood or fire.
No warranty made by RSP shall be deemed to cover, and RSP is not responsible for, and hereby disclaims, responsibility for defects or damages caused by fuses, filters, the value of lost energy production or costs related to the removal, installation, or troubleshooting of Customer electrical systems. RSP’s repair, replacement, or re-performance of any PRODUCTS or PARTS will not be deemed an admission of any fault on the part of RSP or its principals or affiliates, or an admission that the PRODUCTS or PARTS are otherwise defective or non-conforming.
4. LIMITATION OF LIABILITY. RSP’S TOTAL LIABILITY ARISING FROM THE PRODUCTS OR PARTS, WHETHER FOR BREACH OF CONTRACT OR ANY WARRANTY, NEGLIGENCE OR OTHERWISE, WILL BE LIMITED TO THE AMOUNT CUSTOMER PAID FOR THE PRODUCTS OR PARTS FOR WHICH LOSSES OR DAMAGES ARE CLAIMED. THE RIGHTS AND REMEDIES OF CUSTOMER SET FORTH HEREIN SHALL BE THE SOLE AND EXCLUSIVE RIGHTS AND REMEDIES FOR ANY CLAIM WHATSOEVER HEREUNDER AND ALL OTHER RIGHTS AND REMEDIES ARE EXPRESSLY WAIVED BY CUSTOMER. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE PRODUCTS OR PARTS, REGARDLESS OF WHETHER RSP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER ARISING OUT OF DESIGN OR MANUFACTURING DEFECT, NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, DEFAULT, INDEMNITY OR ANY OTHER REASON OR LEGAL THEORY ARISING OUT OF THE USE OR HANDLING OF ITS PRODUCTS OR PARTS OR ITS PERFORMANCE UNDER THESE TERMS. NO ACTION RELATING TO THE PRODUCTS OR PARTS MAY BE BROUGHT BY CUSTOMER MORE THAN SIX MONTHS AFTER DELIVERY OF SUCH PRODUCTS OR PARTS. RSP DISCLAIMS ALL LIABILITY OF ANY KIND OF RSP’S SUPPLIERS AND LICENSORS.
5. USE OF PRODUCTS AND PARTS. Customer shall indemnify RSP against all claims, losses, damage, injury, or other liability arising out of or related to the use of the PRODUCTS or PARTS, whether sold separately or incorporated into any of the Customer’s products or services. The PRODUCTS and PART(s) are not developed for medical use or for use in any other inherently dangerous activity (collectively, “Ultra-hazardous Uses”). The term Ultra-Hazardous Use does not include the generation of electrical power for customary uses. Customer agrees not to use PRODUCTS or PARTS for any Ultrahazardous Uses. Customer agrees that RSP shall not be liable for any claims, losses, costs or liabilities arising from such Ultrahazardous Uses if Customer or its distributors or buyers use the PRODUCTS or PART(s) for such applications. Without limiting the generality of the foregoing, Customer agrees to indemnify and hold RSP harmless from any claims, losses, costs, and liabilities arising out of or in connection with the use of the PRODUCT(s) or PART(s) in any such applications. Customer agrees to incorporate the foregoing restriction in all contracts or sale documents under which Customer sells the PARTS or a device incorporating the PRODUCTS or PARTS to Customer’s buyers.
6. DELIVERY OF PRODUCTS AND PARTS; TITLE. Delivery dates are estimates. RSP will use commercially reasonable efforts to meet desired delivery dates, but will not be liable to Customer for any late shipment or late completion. Delivery requests not conforming to RSP’s current lead times are subject to expedited fees. RSP shall not be responsible for any delays caused by strike, flood, fire, act of God, scarcity of the materials, epidemics, pandemics, governmental quarantines or other restrictions, or any other cause beyond the reasonable control of RSP. Customer will accept and pay for partial shipments of PRODUCTS or PARTS. Unless otherwise provided on the Order, the PRODUCTS and PARTS shall be delivered EXW (Incoterms 2010) RSP’s designated facility, or other named place of origin. Identification of the PRODUCTS and PARTS shall occur when they are placed in the hands of the carrier for shipment to Customer. The PRODUCTS and PARTS shall be placed in suitably protected containers, the nature of which shall be determined by RSP. Delivery obligations for returned PRODUCTS and PARTS are addressed in Section 3. Title to PRODUCTS and PARTS and risk of loss passes to Customer when PARTS are placed in the hands of the carrier for shipment to Customer. The PRODUCTS and PARTS are deemed accepted upon receipt by Customer.
7. PURCHASE MONEY SECURITY INTEREST. If Customer has purchased PRODUCTS or PARTS, then this Section 7 shall apply. RSP hereby reserves, and Customer hereby grants to RSP, a purchase money security interest (“PMSI”) in the PRODUCTS or PARTS sold hereunder and all the proceeds thereof, including but not limited to, insurance proceeds, to secure performance of all of Customer’s obligations hereunder. Customer’s failure to pay any amount when due shall give RSP the right to repossess and remove the PRODUCTS or PARTS (as applicable). Customer agrees, without further consideration, at any time to do or cause to be done, executed and delivered, all such further acts and instruments as RSP may reasonable request in order to perfect RSP’s PMSI. Customer agrees that RSP shall have the authority to file any documents necessary, including but not limited to, any UCC-1 (or similar) financing statement or continuation statement, to perfect and maintain the perfection of RSP’s PMSI granted here under. RSP may send out a Notice of Right to Lien on each PRODUCT or PART shipment on or before the applicable deadline stipulated by applicable state law. RSP may send this notice to the project owner, installer, any applicable lenders, and other interested parties as prescribed by applicable state law. Customer will cooperate with RSP, including providing information requested by RSP (prior to the shipment of the applicable PRODUCT or PART) to facilitate RSP’s mailing of the Notice of Right to Lien as authorized by applicable law.
8. INSURANCE; TAXES. In no case does the purchase price of the PRODUCTS, PARTS and/or services (“Purchase Price”), even if inclusive of freight, cover the cost of any insurance; however, if the route selected involves movement of the PRODUCTS or PARTS by common carrier for which the freight rate does not include insurance, RSP may at its option, or upon Customer’s instruction, procure insurance which amount Customer shall reimburse to RSP. Unless otherwise provided on the Order, the Purchase Price is exclusive of, and Customer is responsible for, all sales, value added, use and like taxes and any applicable customs duties, import licenses, excise fees or tariffs. RSP will invoice Customer for all applicable taxes unless
Customer supplies an appropriate and valid tax exemption certificate.
9. CANCELLATION/RESCHEDULE/CHANGES. Any order cancellation, change request, or reschedule request must be in writing. Orders for PRODUCTS or PARTS with production lead times over 60 days may not be cancelled. If RSP accepts an order cancellation from Customer for PRODUCTS or PARTS with production lead times less than 60 days, the cancellation request is subject to a 50% cancellation charge, as determined by RSP is its sole and absolute discretion. If Customer incurs a cancellation charge as set forth above, and Customer places a new order before the scheduled delivery date of the cancelled order and the replacement order is fully paid within 5 business days of submitting the replacement order, RSP will waive the cancellation charge. Requests to change the scheduled delivery date must be made in writing. Any such change request will incur a rescheduling charge of 20% of the outstanding balance of the Order.
10. PAYMENT TERMS; INSURANCE ON PRODUCTS and PARTS. Quoted prices contained in a written quote from RSP for PRODUCTS or PARTS are binding on RSP for only 30 days from the date of the quote (unless otherwise stated in the written quote). All pricing and all payments shall be made in U.S. dollars. A nonrefundable downpayment of 50% is required on all Orders for software or firmware development. All PRODUCTS or PARTS are invoiced upon shipment. Terms of payment and credit limits are determined by RSP’s credit department on a case by case basis. Large orders and new customers normally require a deposit at the time of order and/or prior to shipment. Notwithstanding the previous sentence, unless otherwise agreed in a writing signed by RSP, terms of payment are net 30 days from the date of invoice. On a case by case basis, RSP may authorize Customer to pay by credit card. If Customer pays by credit card, Customer will be responsible for paying for or reimbursing RSP for credit card or merchant transaction fees for credit card purchases over $25,000 in the aggregate in any calendar month. Notwithstanding any specified payment terms, RSP may require payment in advance of shipment of PRODUCTS or PARTS or commencement of repair services if Customer’s credit, in RSP’s sole judgment, becomes impaired. The Purchase Price shall become immediately due and payable and RSP may cancel any unfilled portion of a shipment upon: (i)Customer’s failure to make any payment when due; (ii) Customer becomes insolvent, or (iii) Buyer’s ability to pay debt in the normal course of business otherwise becomes impaired. Overdue payments shall be subject to finance charges computed at a periodic rate of the lesser of the maximum allowed by applicable law or 1 1/2% per month). Customer, at its expense, shall fully insure PRODUCTS and PARTS (as applicable) against all loss or damage until the applicable Purchase Price has been paid in full. Customer agrees to pay RSP’s reasonable expenses, including attorney fees, incurred in collecting unpaid amounts or otherwise enforcing the terms herein (regardless of whether or not suit is brought).
11. CONFIDENTIAL INFORMATION. The parties may provide confidential or proprietary information to the other in connection with the PRODUCTS or PARTS (“CI”). The parties agree that CI shall include all information which a party knows or reasonably should know is confidential. CI shall remain the exclusive property of the discloser of the CI and the receiving party agrees not to disclose CI to any third-party and will preserve and protect the confidentiality of CI by using at least the same reasonable care that the receiving party uses to protect its own CI and the receiving party will take all other acts reasonably requested by the disclosing party with respect to CI. Upon a disclosing party’s request, the receiving party will return to the disclosing party all documents containing the disclosing party’s CI and retain no copies thereof. The parties agree that their obligation to protect CI shall be ongoing and shall not cease upon completion or termination of these Terms.
12. ADVICE; APPLICATIONS ENGINEERING SUPPORT. RSP may provide Customer technical advice regarding the PRODUCTS or PARTS, but RSP does not control or supervise the subsequent manufacture, fabrication, or installation of its PRODUCTS or PARTS or their use after sale, and does not warrant or guarantee such advice. RSP reserves the right to make additional engineering changes as necessary to comply with RSP’s internal policies and procedures. RSP reserves the right to charge Customer for costs and expenses incurred by RSP associated with any servicing or repair of a PRODUCT, PART, or component thereof for which there is no problem observed (NPO). PRODUCTS or PARTS may be equipped with applications that record and create log files containing data relating to functionality and operating perfomance of the PRODUCTS or PARTS (“Data”). This Data can be accessed and used by RSP to provide ongoing Customer support and for purposes of any warranty made by RSP in accordance with these terms. Customer grants RSP a revocable, royalty free license to use the Data for these purposes.
13. SPECIAL ORDERS. Customer acknowledges that if this purchase is a special order for custom goods, the provisions of this paragraph supersede any conflicting general terms of these Terms. Customer agrees to defend, protect, and hold harmless RSP 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 RSP for such injury and/or any alleged infringement because of the manufacture and/or sale of the custom good. Customer will describe any specially ordered customer goods in the purchase order at or before the time that their manufacture or assembly commences.
14. EXPORT; COMPLIANCE WITH LAW. Customer acknowledges that the laws and regulations of the United States restrict the export and re-export of certain commodities and technical data of United States origin. Customer will not export or re-export the PRODUCTS or PARTS or any related technical documentation in any form in violation of the export or import laws of the United States or any foreign jurisdiction. Customer shall
not, without U.S. government authorization, export, re-export, or transfer any goods, software, or technology subject to these Terms, either directly or indirectly, to any country subject to a U.S. trade embargo (currently Cuba, Iran, North Korea, Sudan, and Syria) or to any resident or national of any such country, or to any person or entity listed on the “Entity List” or “Denied Persons List” maintained by the U.S. Department of Commerce or the list of “Specifically Designated Nationals and Blocked Persons” maintained by the U.S. Department of Treasury. In addition, any software or any technology subject to these Terms may not be exported, re-exported, or transferred to an end-user engaged in activities related to weapons of mass destruction. Further, Customer and its personnel, agents and representatives are aware of, and agree to abide by, the obligations imposed by the laws of the countries in which Customer does business (including, without limitation, the Foreign Corrupt Practices Act) dealing with payments or gifts to governments or related persons for the purpose of obtaining or retaining business for or with, or directing business to, any person. Accordingly, Customer agrees that no portion of monies paid or payable to Customer in connection with this Agreement, nor any other item of value, will, directly or indirectly, be paid, received, transferred, loaned, offered, promised or furnished to or for the use of any officer or employee of any government department, agency, instrumentality or corporation thereof, or any political party or any official of such party or candidate for office, or any person acting for or on behalf of any of the foregoing, for the purpose of obtaining or retaining business for or with, or directing business to, any person. Customer will comply with the applicable provisions of 42 USC § 1320a-7b prohibiting illegal remuneration (including kickback, bribe or rebate). Customer will defend, indemnify, and hold harmless RSP from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.
15. LAW; VENUE. These Terms will be governed by the laws of the State of New York as applied to agreements between New York without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Subject in all cases to Section 16 below, Customer shall only bring an action arising from or relating to these Terms in a federal or state court located in Rochester, New York and Customer irrevocably submits to the personal jurisdiction and venue of such court in such action or in any action brought in such courts by RSP. Customer irrevocably consents to the service of process from any of the aforesaid courts by mailing copies thereof by registered or certified mail, postage prepaid, to Customer at its address designated pursuant to these Terms, with such service of process to become effective fifteen (15) days after such mailing. Customer agrees to pay RSP’s reasonable attorney’s fees and costs required to enforce RSP’s rights hereunder. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms.
16. ARBITRATION. Customer agrees that RSP shall have the right to have any dispute between the parties arising out of or in connection with these Terms be settled by arbitration utilizing the dispute resolution procedures of the American Arbitration Association (AAA) in Rochester, New York, by one arbitrator appointed in accordance with said rules. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, nothing in these Terms shall limit either party’s right to seek (in accordance with Section 15 above) immediate injunctive or other equitable relief whenever the facts or circumstances would permit a party to seek such relief in a court of competent jurisdiction. Further, nothing in this Section 16 or otherwise contained in these Terms shall prevent or restrict RSP from filing suit with any court of applicable jurisdiction (consistent with Section 15 above) for purposes of collection of any amounts owed by Customer to RSP under these Terms or ounder any Order.
17. GENERAL. No waiver of rights under these Terms by either party shall constitute a subsequent waiver of this or any other right under these Terms, and all waivers must be in writing to be effective. Neither these Terms nor any rights under these Terms shall be assigned or otherwise transferred by Customer (by operation of law or otherwise) without the prior written consent of RSP and any unauthorized transfer or assignment shall be void. These Terms shall bind and inure to the benefit of the successors and permitted assigns of the parties hereto. In the event that any of the terms of these Terms are held to be illegal by any court of competent jurisdiction, all remaining terms of these Terms shall remain in full force and effect. These Terms together with RSP’s associated Orders (if applicable) constitute the entire understanding and agreement between the parties regarding the subject matter hereof and supersede all prior or contemporaneous understandings, written or oral. All notices hereunder shall be in writing and be effective upon personal delivery or upon mailing by certified or registered mail to the last know address of the party to be served. In the event the terms of an Order contain additional or different terms than these Terms, the terms of the Order will govern and control. These terms may only be amended by an explicit and formal written document, hand signed by the authorized representatives of both parties.