H-J INTERNATIONAL, INC. AND H-J ENTERPRISES, INC.
GENERAL TERMS AND CONDITIONS OF SALE
1. General. The terms and conditions contained herein, together with any additional or different terms contained in H-J’s proposal (the “Proposal”), if any, submitted to Purchaser (which Proposal shall control over any conflicting terms), constitute the entire agreement (the “Agreement”) between the parties with respect to the order and supersede all prior communications and agreements regarding the order. Acceptance by H-J of the order, or Purchaser’s acceptance of H-J’s Proposal, is expressly limited to and conditioned upon Purchaser’s acceptance of these terms and conditions, payment for or acceptance of any performance by H-J being acceptance. These terms and conditions may not be changed or superseded by any different or additional terms and conditions proposed by Purchaser to which terms H-J hereby objects. Unless the context otherwise requires, the term “Equipment” as used herein means all of the equipment, parts, accessories sold, and all software and software documentation, if any, licensed to Purchaser by H-J (“Software”) under the order. Unless the context otherwise requires, the term “Services” as used herein means all labor, supervisory, technical and engineering, installation, repair, consulting or other services provided by H-J under the order. As used herein, the term “Purchaser” shall include the initial end use of the Equipment and/or services; provided, however, that Section 16(a) shall apply exclusively to the initial end user.
2. Prices.
a. Unless otherwise specified in writing, all Proposals expire thirty (30) days from the date thereof.
b. Unless otherwise stated herein, Services prices are based on normal business hours (8 a.m. to 5 p.m. Monday through Friday). Overtime and Saturday hours will be billed at one and one-half (1 1/2) times the hourly rate; and Sunday hours will be billed at two (2) times the hourly rate; holiday hours will be billed at three (3) times the hourly rate. If a Services rate sheet is attached hereto, the applicable Services rates shall be those set forth in the rate sheet. Rates are subject to change without notice.
c. The price does not include any federal, state or local property, license, privilege, sales, use, excise, gross receipts, or other like taxes which may now or hereafter be applicable. Purchaser agrees to pay or reimburse any such taxes which H-J or its suppliers are required to pay or collect. If Purchaser is exempt from the payment of any tax or holds a direct payment permit, Purchaser shall, upon order placement, provide H-J a copy, acceptable to the relevant governmental authorities of any such certificate or permit.
d. The price includes customs duties and other importation or exportation fees, if any, at the rates in effect on the date of H-J’s Proposal according to the relevant and quoted Incoterms. Any change after that date in such duties, fees, or rates, shall increase the price by H-J’s additional cost.
3. Payment.
a. Unless specified to the contrary in writing by H-J, payment terms are net cash, payable without offset, in United States Dollars, payable at time of shipment.
b. If in the judgment of H-J the financial condition of Purchaser at any time prior to delivery does not justify the terms of payment specified, H-J may require payment in advance, payment security satisfactory to H-J, or may terminate the order, whereupon H-J shall be entitled to receive reasonable cancellation charges. If delivery is delayed by Purchaser, payment shall be due on the date H-J is prepared to make delivery. Delays in delivery or nonconformities in any installments delivered shall not relieve Purchaser of its obligation to accept and pay for remaining installments.
c. Purchaser shall pay, in addition to the overdue payment, a late charge equal to the lesser of two percent (2%) per month or any part thereof or the highest applicable rate allowed by law on all such overdue amounts plus H-J’s attorneys’ fees and court costs incurred in connection with collection.
4. Changes.
a. Any changes requested by Purchaser affecting the ordered scope of work must be accepted by H-J and resulting adjustments to affected provisions, including price, schedule, and guarantees mutually agreed in writing prior to implementation of the change.
b. H-J may, at its expense, make such changes in the Equipment or Services as it deems necessary, in its sole discretion, to conform the Equipment or Services to the applicable specifications. If Purchaser objects to any such changes, H-J shall be relieved of its obligation to conform to the applicable specifications to the extent that conformance may be affected by such objection.
5. Delivery.
a. All Equipment manufactured, assembled or warehoused in the continental United States is delivered EXW H-J plant. Equipment shipped from outside the continental United States is delivered FOB foreign port of shipment. Purchaser shall be responsible for any and all demurrage or detention charges.
b. If the scheduled delivery of Equipment is delayed by Purchaser or by force majeure, H-J may move the Equipment to storage for the account of and at the risk of Purchaser whereupon it shall be deemed to be delivered.
c. Shipping and delivery dates are contingent upon Purchaser’s timely approvals and delivery by Purchaser of any documentation required for H-J’s performance hereunder.
d. Claims for shortages or other errors in delivery must be made in writing to H-J within five days of delivery. Equipment may not be returned except with the prior written consent of and subject to terms specified by H-J. Claims for damage after delivery shall be made directly by Purchaser with the common carrier.
6. Title & Risk of Loss. Except with respect to Software (for which title shall not pass, its use being licensed) title to Equipment shall remain in H-J until fully paid for. Notwithstanding any agreement with respect to delivery terms or payment of transportation charges, risk of loss or damage shall pass to Purchaser upon delivery.
7. Inspection, Testing and Acceptance.
a. Any inspection by Purchaser of Equipment on H-J’s premises shall be scheduled in advance to be performed during normal working hours.
b. If the order provides for factory acceptance testing, H-J shall notify Purchaser when H-J will conduct such testing prior to shipment. Unless Purchaser states specific objections in writing within two days after completion of factory acceptance testing, completion of the acceptance test constitutes Purchaser’s factory acceptance of the Equipment and its authorization for shipment.
c. If the order provides for site acceptance testing, testing will be performed by H-J personnel to verify that the Equipment has arrived at site complete, without physical damage, and in good operating condition. Completion of site acceptance testing constitutes full and final acceptance of the Equipment. If, through no fault of H-J, acceptance testing is not completed within ten days after arrival of the Equipment at the site, the site acceptance test shall be deemed completed and the Equipment shall be deemed accepted.
8. Warranties and Remedies.
a. Equipment and Services Warranty. H-J warrants that Equipment (excluding Software, which is warranted as specified in paragraph (d) below) shall be delivered free of defects in material and workmanship and that Services shall be free of defects in workmanship. The Warranty Remedy Period for Equipment (excluding Software, Spare Parts and Refurbished or Repaired Parts) shall end twelve (12) months after installation or eighteen (18) months after date of shipment, whichever first occurs. The Warranty Remedy Period for new spare parts shall end twelve (12) months after date of shipment. Refurbished or repaired parts shall not be covered by any warranty. The Warranty Remedy Period for Services shall end ninety (90) days after the date of completion of Services.
b. Equipment and Services Remedy. If a nonconformity to the foregoing warranty is discovered in the Equipment or Services during the applicable Warranty Remedy Period, as specified above, under normal and proper use and provided the Equipment has been properly stored, installed, operated and maintained and written notice of such nonconformity is provided to H-J promptly after such discovery and within the applicable Warranty Remedy Period, H-J shall, at its option, either (i) repair or replace the nonconforming portion of the Equipment or re-perform the nonconforming Services or (ii) refund the portion of the price applicable to the nonconforming portion of Equipment or Services. If any portion of the Equipment or Services so repaired, replaced or re-performed fails to conform to the foregoing warranty, and written notice of such nonconformity is provided to H-J promptly after discovery and within the original Warranty Remedy Period applicable to such Equipment or Services or 30 days from completion of such repair, replacement or re-performance, whichever is later, H-J will repair or replace such nonconforming Equipment or re-perform the nonconforming Services.
c. Exceptions. H-J shall not be responsible for providing working access to the nonconforming Equipment, including disassembly and re-assembly of non-H-J supplied equipment, or for providing transportation to or from any repair facility, all of which shall be at Purchaser’s risk and expense. H-J shall have no obligation hereunder with respect to any Equipment which (i) has been improperly repaired or altered; (ii) has been subjected to misuse, negligence or accident; (iii) has been used in a manner contrary to H-J’s instructions; (iv) is comprised of materials provided by or a design specified by Purchaser; or (v) has failed as a result of ordinary wear and tear. Equipment supplied by H-J but manufactured by others is warranted only to the extent of the manufacturer’s warranty, and only the remedies, if any, provided by the manufacturer will be allowed.
d. Software Warranty and Remedies. H-J warrants that, except as specified below, the Software will, when properly installed, execute in accordance with H-J’s published specification. If a nonconformity to the foregoing warranty is discovered during the period ending one (1) year after the date of shipment and written notice of such nonconformity is provided to H-J promptly after such discovery and within that period, including a description of the nonconformity and complete information about the manner of its discovery, H-J shall correct the nonconformity by, at its option, either (i) modifying or making available to the Purchaser instructions for modifying the Software; or (ii) making available at H-J’s facility necessary corrected or replacement programs. H-J shall have no obligation with respect to any nonconformities resulting from (i) unauthorized modification of the Software or (ii) Purchaser-supplied software or interfacing. H-J does not warrant that the functions contained in the software will operate in combinations which may be selected for use by the Purchaser, or that the software products are free from errors in the nature of what is commonly categorized by the computer industry as “bugs”.
e. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF QUALITY AND PERFORMANCE, WHETHER WRITTEN, ORAL OR IMPLIED, AND ALL OTHER WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USAGE OF TRADE ARE HEREBY DISCLAIMED. THE REMEDIES STATED HEREIN CONSTITUTE PURCHASER’S EXCLUSIVE REMEDIES AND H-J’S ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY.
9. Patent Indemnity.
a. H-J shall defend at its own expense any action brought against Purchaser alleging that the Equipment or the use of the Equipment to practice any process for which such Equipment is specified by H-J (a “Process”) directly infringes any claim of a patent of the United States of America and to pay all damages and costs finally awarded in any such action, provided that Purchaser has given H-J prompt written notice of such action, all necessary assistance in the defense thereof and the right to control all aspects of the defense thereof including the right to settle or otherwise terminate such action in behalf of Purchaser.
b. H-J shall have no obligation hereunder and this provision shall not apply to: (i) any other equipment or processes, including Equipment or Processes which have been modified or combined with other equipment or process not supplied by H-J; (ii) any Equipment or Process supplied according to a design, other than an H-J design, required by Purchaser; (iii) any products manufactured by the Equipment or Process; (iv) any patent issued after the date hereof; or (v) any action settled or otherwise terminated without the prior written consent of H-J.
c. If, in any such action, the Equipment is held to constitute an infringement, or the practice of any Process using the Equipment is finally enjoined, H-J shall, at its option and its own expense, procure for Purchaser the right to continue using said Equipment; or modify or replace it with non-infringing equipment or, with Purchaser’s assistance, modify the Process so that it becomes non-infringing; or remove it and refund the portion of the price allocable to the infringing Equipment. THE FOREGOING PARAGRAPHS STATE THE ENTIRE LIABILITY OF H-J AND EQUIPMENT MANUFACTURER FOR ANY PATENT INFRINGEMENT.
d. To the extent that said Equipment or any part thereof is modified by Purchaser, or combined by Purchaser with equipment or processes not furnished hereunder (except to the extent that H-J is a contributory infringer) or said Equipment or any part thereof is used by Purchaser to perform a process not furnished hereunder by H-J or to produce an article, and by reason of said modification, combination, performance or production, an action is brought against H-J, Purchaser shall defend and indemnify H-J in the same manner and to the same extent that H-J would be obligated to indemnify Purchaser under this “Patent Indemnity” provision.
10. Limitation of Liability.
a. In no event shall H-J, its suppliers or subcontractors be liable for special, indirect, incidental or consequential damages, whether in contract, warranty, tort, negligence, strict liability or otherwise, including, but not limited to, loss of profits or revenue, loss of use of the Equipment or any associated equipment, cost of capital, cost of substitute equipment, facilities or services, downtime costs, delays, and claims of customers of the Purchaser or other third parties for any damages. H-J’s liability for any claim whether in contract, warranty, tort, negligence, strict liability, or otherwise for any loss or damage arising out of, connected with, or resulting from this Agreement or the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, repair, replacement, installation, technical direction of installation, inspection, operation or use of any equipment covered by or furnished under this Agreement, or from any services rendered in connection therewith, shall in no case (except as provided in the section entitled “Patent Indemnity”) exceed one-half (1/2) of the purchase price allocable to the Equipment or part thereof or Services which gives rise to the claim.
b. All causes of action against H-J arising out of or relating to this Agreement or the performance or breach hereof shall expire unless brought within one year of the time of accrual thereof.
c. In no event, regardless of cause, shall H-J be liable for penalties or penalty clauses of any description or for indemnification of Purchaser or others for costs, damages, or expenses arising out of or related to the Equipment and Services.
11. Laws and Regulations. H-J does not assume any responsibility for compliance with federal, state or local laws and regulations, except as expressly set forth herein, and compliance with any laws and regulations relating to the operation or use of the Equipment or Software is the sole responsibility of the Purchaser. All laws and regulations referenced herein shall be those in effect as of the Proposal date. In the event of any subsequent revisions or changes thereto, H-J assumes no responsibility for compliance therewith. If Purchaser desires a modification as a result of any such change or revision, it shall be treated as a change per Section 4. Nothing contained herein shall be construed as imposing responsibility or liability upon H-J for obtaining any permits, licenses or approvals from any agency required in connection with the supply, erection or operation of the Equipment.
12. Governing Law; Jurisdiction; Venue. This Agreement shall be governed by the laws of the State of Missouri, but excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods and excluding Missouri law with respect to conflicts of law. ANY LEGAL ACTION OR PROCEEDING COMMENCED WITH RESPECT TO THIS AGREEMENT, A PROPOSAL OR ANY ODER RELATED THERETO OR WITH RESPECT TO ANY RELATIONSHIP BETWEEN THE PARTIES HERETO, MUST BE BROUGHT IN THE COURTS OF THE STATE OF MISSOURI LOCATED IN ST. LOUIS COUNTY OR IN THE UNITED STATES DISTRICT COURT OF THE EASTERN DISTRICT OF MISSOURI, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HEREBY ACCEPTS AND SUBMITS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF SUCH COURTS. THE PARTIES IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS. EACH PARTY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF SUCH COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO EACH OF THE OTHER PARTIES AT ITS ADDRESS PROVIDED HEREIN, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
13. Waiver of Jury Trial. IF FOR ANY REASON ANY LEGAL ACTION OR PROCEEDING IS COMMENCED WITH RESPECT TO ANY ACCOMMODATION DOCUMENT OR WITH RESPECT TO ANY RELATIONSHIP BETWEEN THE PARTIES HERETO, EACH PARTY WAIVES THE RIGHT TO A TRIAL BY JURY.
14. Severability. If any provision hereof, partly or completely, shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision or portion hereof and these terms shall be construed as if such invalid or unenforceable provision or portion thereof had never existed.
15. Software License.
a. H-J owns all rights in or has the right to sublicense all of the Software, if any, to be delivered to Purchaser under this Agreement. As part of the sale made hereunder Purchaser hereby obtains a limited license to use the Software, subject to the following: (i) The Software may be used only in conjunction with equipment specified by H-J; (ii) The Software shall be kept strictly confidential; (iii) The Software shall not be copied, reverse engineered, or modified; (iv) The Purchaser’s right to use the Software shall terminate immediately when the specified equipment is no longer used by the Purchaser or when otherwise terminated, e.g. for breach, hereunder; and (v) the rights to use the Software are non-exclusive and non-transferable, except with H-J’s prior written consent.
b. Nothing in this Agreement shall be deemed to convey to Purchaser any title to or ownership in the Software or the intellectual property contained therein in whole or in part, nor to designate the Software a “work made for hire” under the Copyright Act, nor to confer upon any person who is not a named party to this Agreement any right or remedy under or by reason of this Agreement. In the event of termination of this License, Purchaser shall immediately cease using the Software and, without retaining any copies, notes or excerpts thereof, return to H-J the Software and all copies thereof and shall remove all machine readable Software from all of Purchaser’s storage media.
16. Inventions and Information. Unless otherwise agreed in writing by H-J and Purchaser, all right, title and interest in any inventions, developments, improvements or modifications of or for Equipment and Services shall remain with H-J. Any design, manufacturing drawings or other information submitted to the Purchaser remains the exclusive property of H-J. Purchaser shall not, without H-J’s prior written consent, copy or disclose such information to a third party. Such information shall be used solely for the operation or maintenance of the Equipment and not for any other purpose, including the duplication thereof in whole or in part.
17. Force Majeure. H-J shall neither be liable for loss, damage, detention or delay nor be deemed to be in default for failure to perform when prevented from doing so by causes beyond its reasonable control including but not limited to acts of war (declared or undeclared), Acts of God, fire, strike, labor difficulties, acts or omissions of any governmental authority or of Purchaser, compliance with government regulations, insurrection or riot, embargo, delays or shortages in transportation or inability to obtain necessary labor, materials, or manufacturing facilities from usual sources or from defects or delays in the performance of its suppliers or subcontractors due to any of the foregoing enumerated causes. In the event of delay due to any such cause, the date of delivery will be extended by period equal to the delay plus a reasonable time to resume production, and the price will be adjusted to compensate H-J for such delay.
18. Cancellation. Any order may be cancelled by Purchaser only upon prior written notice and payment of termination charges, including but not limited to, all costs identified to the order incurred prior to the effective date of notice of termination and all expenses incurred by H-J attributable to the termination, plus a fixed sum of twenty percent of the final total price to compensate for disruption in scheduling, planned production and other indirect costs.
19. Termination. No termination by Purchaser for default shall be effective unless, within fifteen (15) days after receipt by H-J of Purchaser’s written notice specifying such default, H-J shall have failed to initiate and pursue with due diligence correction of such specified default.
20. Export Control.
a. Purchaser represents and warrants that the Equipment and Services provided hereunder and the “direct product” thereof are intended for civil use only and will not be used, directly or indirectly, for the production of chemical or biological weapons or of precursor chemicals for such weapons, or for any direct or indirect nuclear end use. Purchaser agrees not to disclose, use, export or re-export, directly or indirectly, any information provided by H-J or the “direct product” thereof as defined in the Export Control Regulations of the United States Department of Commerce, except in compliance with such Regulations.
b. If applicable, H-J shall file for a U.S. export license, but only after appropriate documentation for the license application has been provided by Purchaser. Purchaser shall furnish such documentation within a reasonable time after order acceptance. Any delay in obtaining such license shall suspend performance of this Agreement by H-J. If an export license is not granted or, if once granted, is thereafter revoked or modified by the appropriate authorities, this Agreement may be canceled by H-J without liability for damages of any kind resulting from such cancellation. At H-J’s request, Purchaser shall provide to H-J a Letter of Assurance and End-User Statement in a form reasonably satisfactory to H-J.
21. Assignment. Any assignment of this Agreement or of any rights or obligations under the Agreement without prior written consent of H-J shall be void.
22. Nuclear Insurance - Indemnity. For applications in nuclear projects, the Purchaser and/or its end user customer shall have complete insurance protection against liability and property damage resulting from a nuclear incident and shall indemnify H-J, its subcontractors, suppliers and vendors against all claims resulting from a nuclear incident.
23. Resale. If Purchaser resells any of the Equipment, the sale terms shall limit H-J’s liability to the buyer to the same extent that H-J’s liability to Purchaser is limited hereunder.
24. Entire Agreement. This Agreement constitutes the entire agreement between H-J and Purchaser. There are no agreements, understandings, restrictions, warranties, or representations between H-J and Purchaser other than those set forth herein or herein provided.
25. Conflicts. In the event of any conflict or inconsistency between the terms of this Agreement, the Proposal, an order or any other documents related to a specific order, the terms of this Agreement shall govern.