These terms and conditions are the complete and exclusive statement of the terms of sale of goods by ROTEX GLOBAL, LLC, or by ROTEX EUROPE LTD., (“Rotex”), to the party purchasing goods (“Buyer”). Buyer agrees to all these terms and conditions by its issuance of a purchase order, acceptance of any part of the goods, or otherwise, which, along with these terms and conditions and any Rotex quote, will constitute the “Agreement.” The Buyer’s placement, and/or acceptance by Rotex, of any order is expressly conditioned upon Buyer accepting all these terms and conditions and any additional or different terms or conditions contained in Buyer’s order or otherwise will be deemed rejected and of no effect. Rotex reserves the right to accept or reject all orders.
2. Terms of Payment
Terms of payment, unless otherwise stated, are net thirty (30) days from date of invoice. Rotex will ship goods contingent upon reasonable assurance of payment. Payment will be made in full without deduction, delay, set-off or counterclaim. Time is of the essence and all delinquent amounts will accrue interest at 8% per annum or the maximum rate permitted by law, whichever is greater.
Unless otherwise agreed, shipments will be Ex Works (Incoterms 2010). Title and risk of loss to the goods will pass upon delivery to carrier. Shipments will be routed according to Buyer’s instructions, or if not specified, according to Rotex’s convenience. If agreed, Rotex will pre-pay transportation charges, which will be added to the purchase price. Partial shipments will be made only on approved request. If Buyer refuses shipment, or requests Rotex hold goods pending shipment, Buyer will reimburse Rotex one percent (1%) of the purchase price for each week shipment is delayed. Such fees are due upon invoice by Rotex and goods will not be shipped until such fees are paid in full.
4. Cancellation/Buyer Delays
Unless otherwise agreed, if Buyer cancels an order prior to shipment, Buyer agrees to pay Rotex, as liquidated damages based on a genuine pre-estimate of loss and not as a penalty, a cancellation fee, payable upon cancellation, in an amount equal to the following:
|Approval Drawings Issued||5% of order value|
|Approvals Returned and Certified Engineering Complete||10% of order value|
|Materials Purchased and Received||30% of order value|
|Major Component Fabrication Started||50% of order value|
|Major Component Fabrication Complete||80% of order value|
|Final Assembly Complete||100% of order value|
Upon the failure of Buyer to meet any stipulated commitment dates for its performance, Rotex may, at its option: a) deem Buyer’s non-performance as acceptance/consent and proceed with performance of this Agreement; b) provide Buyer with written notice of a deadline extension; or c) deem Buyer’s failure to meet the deadline as Buyer’s cancellation of this Agreement subject to the fees described above.
Prices do not include any duty or any national, state, provincial or local taxes, or other governmental charges. Buyer will pay all such taxes and charges.
For one year from date of shipment, all Rotex goods will be free from defects in material and workmanship and will conform, in material respect, to Rotex standards, representations and specifications including any set forth in any Rotex proposal and/or any drawings furnished by Rotex and/or approved by Buyer. ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED. Rotex’s warranty does not cover expendable items subject to normal wear such as screen clothing, connecting sleeves or sealing strips. Rotex makes no warranty for goods or material not manufactured by Rotex. Such goods or materials will carry only the warranty of their manufacturer.
In the event of a breach of Rotex’s warranty, Rotex will, at its option, either: i) refund the purchase price; or ii) repair or replace the goods, or any part thereof. Remedies do not extend to any goods which have been manufactured to Buyer’s specifications, subject to misuse, neglect, accident, incorrect wiring or improper installation, or to goods used in violation of instructions furnished by Rotex, or to goods which have been repaired or altered by anyone other than personnel authorized by Rotex, or to goods which differ from the description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements. In the event of a claim, Buyer will: (i) ensure the goods are intact for examination by Rotex; (ii) provide written notice of the specific defect within ten days of the appearance and/or occurrence of the defect. The foregoing is Buyer’s sole and exclusive remedy for any claim.
8. Returned Merchandise
Rotex will not accept returned goods for credit without its prior written consent. All items are subject to a 25% restocking fee, which will be deducted from your original balance.
9. Limitation of Liability
In no event will Rotex be liable for any incidental, consequential, punitive or special damages of any kind. In no event will Rotex’s total liability exceed the purchase price of the goods in question.
10. Force Majeure
Neither party will be held responsible for being unable to carry out this Agreement due to causes beyond its reasonable control including, but not limited to, strikes, fires, accidents, explosions, riots, war, acts of government or Acts of God, which prevents it from fulfilling its obligations under this Agreement or which reduces utilities, raw materials or other items needed to fulfill its obligation under this Agreement. The impacted party will advise the other party of the occurrence of such an event within fourteen days thereafter. If such event lasts for more than sixty (60) days, the unaffected party may, with written notice, terminate this Agreement without penalty.
11. Governing Law, Jurisdiction and Compliance With Law
These terms and conditions will be governed by the laws and exclusive jurisdiction of the State of Ohio, U.S.A. for sales by Rotex Global, or by laws and exclusive jurisdiction of England and Wales for sales by Rotex Europe Ltd., without regard to conflict of laws statutes. Each party irrevocably waives any objection that it may now or hereafter have to the laying of venue of any such proceeding in such court, including any claim that such proceeding has been brought in an inappropriate or inconvenient forum. The parties agree to perform their obligations under these terms and conditions in full compliance with all relevant laws, rules and regulations applicable in connection with the sale, shipment or use of the goods, including, but not limited to, the U.S. Foreign Corrupt Practices Act, U.S. export control regulations, all other applicable export regulations, embargo regulations, data privacy, export control or anti-bribery laws and any other applicable anti-corruption or anti-bribery act.
A party will not sell, assign, or transfer this Agreement, or any part hereof, or any performance due hereunder, without the prior written consent of the other party.
13. Change Requests
Buyer may request changes in the goods by written notice to Rotex. Change requests will be in writing and signed by a duly authorized representative of Buyer. Rotex will respond to Buyer in writing within fifteen (15) business days of receipt either accepting the change, with a written proposed adjustment in price or schedule (if any), or rejecting the change. Buyer will be deemed to have accepted any change unless objected to in ten (10) days.
All data, designs, documents, drawings, specifications, pricing, communications and other information, revealed or disclosed in any form or manner (whether written, oral, electronic, visual, graphic, photographic, observational, or otherwise), including any documents or other tangible items supplied, or produced or created hereunder (collectively defined as “Confidential Information”) are proprietary and confidential to the disclosing party and will be used solely for purposes of performing this Agreement. All such Confidential Information will be treated and protected by the receiving party as confidential, and will not be disclosed to any third party without the prior written consent of disclosing party and may be disclosed within receiving party’s organization only on a need-to-know basis. The provisions protecting Confidential Information in any separate confidentiality, secrecy, or nondisclosure agreement heretofore executed by the parties in connection with this Agreement, or any other contract pertaining to the goods, are hereby expressly incorporated within this Agreement, and these provisions are in addition to such agreement. Upon request of disclosing party, receiving party will immediately return to the disclosing party any Confidential Information provided, either upon demand, or upon completion of the warranty period hereunder, including all copies made by receiving party. The obligations in this Section 14 will survive the termination or expiration of this Agreement for three (3) years.
15. Default and Termination for Cause
In the event of a party’s: (a) actual or anticipated breach of or default of this Agreement, which has not been cured within thirty (30) days of written notice of such; (b) any actual or threatened bankruptcy, reorganization, receivership, insolvency, making an assignment for the benefit of creditors, liquidation, dissolution, or other financial or organizational instability; or (c) a party suspending, threatening to suspend, ceasing or threatening to cease to carry on all or a substantial part of its business; the other party has the right, in addition to any rights or remedies, at law or in equity, to require appropriate assurances of performance, including a performance bond, letter of credit, or other type of guarantee. Should the defaulting party not do so, the non-defaulting party may immediately terminate this Agreement for cause by written notice without any costs of cancellation. Without limiting its other rights or remedies, Rotex may suspend performance of or terminate the Agreement with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Agreement on the due date for payment and, on termination of the Agreement for any reason, the Buyer shall immediately pay to Rotex all of Rotex’s outstanding unpaid invoices and interest. Termination of the Agreement will not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Agreement that existed at or before the date of termination.
16. Intellectual Property Rights
Rotex will defend Buyer from any third-party claim that the goods infringe any third party’s existing United States, United Kingdom or European Union patent, trademark, or copyrights and will pay Buyer any final assessment of damages incurred as a result of any proved infringement of any third party’s United States, United Kingdom or European Union patent, trademark or copyright. Buyer guarantees that any specifications, projects, designs, information or services rendered by Buyer will be of such nature that will not cause any infringement to third parties' intellectual property rights by Rotex. Buyer will indemnify, defend and hold Rotex harmless from any such infringement claims.
17. Relationship of the Parties
Neither party undertakes, by this Agreement or otherwise, to perform or discharge any liability or obligation of the other party, whether regulatory or contractual, or to assume any responsibility whatsoever for the conduct of the business or operations of the other party. Nothing contained in the Agreement is intended to give rise to a partnership or joint venture between the parties or to impose upon the parties any of the duties or responsibilities of partners or joint ventures.
18. Non Waiver and Variations
Any failure, delay or omission of any party in exercising its rights under this Agreement will not constitute a waiver, nor will any single or partial exercise of any right preclude any other future exercise thereof. Any change to this Agreement will be effective only by a written addendum executed by both parties.
19. Severability; Survival
Should any clause, portion or paragraph of this Agreement be unenforceable or invalid for any reason, such unenforceability or invalidity will not affect the enforceability or validity of the remainder of this Agreement. Neither termination nor expiration of this Agreement for any reason will release either Party from liabilities or obligations set forth herein which either: (a) the Parties have expressly agreed will survive such termination or expiration; (b) remain to be performed; or (c) by their nature would be intended to survive, including, but not limited to, confidentiality.
To the extent Rotex sells to Buyer goods incorporating computer software, including firmware and user documentation (“Software”) in any medium (which goods provided by Rotex may also be referred to as “Microprocessor-Based System(s)”), the following will apply:
a. Buyer is hereby granted a non-transferable (except as provided in subparagraph (c) hereinafter) and non-exclusive license to use the Software only in Microprocessor-Based System(s) supplied by Rotex.
b. Buyer acknowledges the Software constitutes valuable proprietary, confidential and trade secret information of Rotex. Without prior written consent of Rotex, Buyer will not do, or permit or assist others to do, any of the following: (i) allow the Software or any part thereof (including but not limited to the microcode) to be used by any person or entity except Buyer’s employees or agents, and then only to the extent necessary in the scope of employment or agency; (ii) copy or otherwise reproduce, disassemble, modify, update, translate, transform into other form, or enhance the Software; (iii) read-out or display, in whole or in part, the Software stored in memory in Microprocessor-Based System(s); (iv) use the Software with any equipment other than Microprocessor-Based System(s) supplied by Rotex; and (v) disclose or permit access to the Software to any person or entity, except to the extent necessary to facilitate permissible use thereof as set forth in subparagraph (b)(i) hereinabove.
c. Buyer will not assign or otherwise transfer the license to Software granted herein except in conjunction with the assignment or transfer of all Buyer’s rights to Microprocessor-Based System(s) and then only if the assignee or transferee agrees in writing to be bound by the terms hereof.
d. Buyer warrants that all persons having access to the Software will observe and perform the obligations set forth in subparagraph (b) and (c) hereinabove.
e. Buyer understands and agrees that the Software is an unpublished work and agrees that the existence of any copyright notice will not be construed as an admission or presumption that publication has occurred.
f. Buyer acknowledges, notwithstanding the license granted in subparagraph (a) hereinabove, that the Software, and all rights thereto, are exclusively owned by Rotex.
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