GENERAL TERMS AND CONDITIONS FOR PRODUCTS

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1. Equipment and Services. Service Provider shall provide Client and/or its Affiliates the equipment and/or parts (the “Equipment”) and services, including any deliverables, (the “Services”) set forth in the proposal or quotation attached hereto and incorporated by reference herein. Proposals / Quotations. Verbal proposals or quotations by Service Provider are given for purposes of estimating only and are not binding on Service Provider unless confirmed in writing. Written proposals and quotations are subject to revision Written proposals and quotations automatically expire thirty (30) calendar days from date issued unless specially stipulated on the face of the quotation. No order shall be considered accepted unless acknowledged in writing by a representative of Client and confirmed in writing by Service Provider. All references here to the “Proposal” shall mean the written proposal or quotation issued by Service Provider, including these Standard Terms and Conditions (these “Terms”). The terms and conditions set forth in these Terms shall control over any conflicting terms and conditions contained in the Proposal or any Purchase Order from Client. 

2. Purchase Order. These Terms, along with the balance of the Proposal to which these Terms are attached, govern the legal relationship of Service Provider and Client with respect to all matters relating to the Proposal and contain all of the contract provisions relating to the subject matter of the Proposal. If there are any provisions in a purchase order or similar document issued by Client (a “Purchase Order”) relating to matters which are not set forth in the Proposal, or which are otherwise different from or supplemental to any provisions in the Proposal, those provisions in the Purchase Order are not accepted by Service Provider and shall not have any force or effect unless such Purchase Order is signed by authorized representatives of both parties. 

3. Payment. 

(a) Payment terms shall be as set forth in the Proposal, or, if not so set forth, terms shall be Net 30 days from the receipt of the invoice, with invoices issued upon shipment of the Equipment covered by the Purchase Order. 

(b) If Client delays the project or puts it on hold for more than thirty (30) days then, notwithstanding the payment schedule set forth in the Purchase Order or this Section 4, the payment terms and delivery time will be revised. Any revisions to the payment terms, price or delivery shall be treated as a change order to be mutually agreed to by the parties in writing in accordance with Section 14 below. If mutual agreement is not reached, either party may terminate these Terms. 

4. Termination. Either party may terminate these Terms if the other party is in default of any of its material obligations and such fault is not cured within thirty (30) days after written notice to the breaching party. 

5. Warranty. 

(a) Service Provider warrants that, for one (1) year from the date of shipment, all Equipment manufactured by Service Provider and the Services provided will be free from defects in workmanship and materials under normal use and service. and will materially conform to all specifications provided to Client. All Equipment not manufactured by Service Provider is covered only by the express warranty of the manufacturer thereof and is not covered by any warranty from Service Provider. Client must notify Service Provider of any claim for any alleged breach of warranty reasonably promptly after Client becomes aware of any such claim. This warranty does not extend to damage or wear caused by misuse, negligence, accident, corrosion, modification by Client (other than at the direction of Service Provider), faulty installation by Client, loss of product, or tampering in a manner that impairs the normal operation of the Equipment.  Service Provider warrants and represents that it has the requisite skill and experience to perform the Services set forth herein, and such Services will be performed with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity in the industry would use, including using industry best practices in instances of ambiguity and using personnel with the skills and training required for the assigned tasks.

(b) In the event of any breach of the foregoing warranty, and in lieu of any remedies at law or at equity, Service Provider’s sole obligation will be to repair any defective Equipment or Services to have the equipment materially conform with the Service Provider’s specifications. SERVICE PROVIDER EXCLUDES EACH AND EVERY WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. 

(c) The foregoing warranty runs in favor of, and may be enforceable by, Client and any other party that acquires the Equipment covered by the Proposal from Client. THIS WARRANTY MAY NOT BE ENFORCED BY ANY OTHER PARTY, AND NO OTHER PARTY SHALL HAVE ANY RIGHT TO MAKE ANY CLAIM WITH RESPECT TO THIS WARRANTY. 

(d) NO WAIVER, MODIFICATION OR ALTERATION OF THE FOREGOING SHALL BE VALID UNLESS MADE IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SERVICE PROVIDER. 

6. Intellectual Property Rights. Service Provider represents that the Services and Equipment manufactured by, for or at the request of Service Provider and covered by the Proposal do not infringe any patent, trademark, trade name, copyright or other intellectual property rights owned by any third party. The foregoing representation does notcover any Equipment which is not manufactured by, for or at the request of Service Provider. Service Provider shall indemnify, defend and hold harmless Client and its officers, directors, employees, agents and affiliates from and against any and all losses, costs, claims, damages, liabilities and expenses of any kind whatsoever (including, but not limited to, any judgments, fines, amounts paid in settlement, and reasonable attorneys’ fees and expenses) that Client may incur or suffer as a result of any breach of the foregoing representation. The foregoing obligations shall not apply to any infringement which arises because Service Provider followed a design or instruction provided by Client or which is caused by the combination or association of any Equipment manufactured by Service Provider with articles or materials not supplied by Service Provider.

7. Not Works for Hire.

(a) All written reports with regard to Client’s products created, developed and/or performed by Service Provider for Client pursuant to these Terms (“Work Product”) will not be deemed to be “works made for hire” and shall remain and be the sole and exclusive property of Service Provider.

(b) Service Provider shall retain all intellectual property rights in and to all of Service Provider’s pre-existing and developed intellectual property, designs, materials, products, software or other property including but not limited to any of the foregoing and all intellectual property, designs, materials, products, software or any other property or products that are developed as a result of or under this agreement.

8. Work Schedule. All quoted timetables shall commence from the date stated in the Proposal (typically after drawing approval or after finalization of specification details). Delay in receipt by Service Provider of technical information or drawings or any changes made by Client shall extend any agreed upon timetable.

9. Delivery. 

(a) Unless stated otherwise in the Proposal, all prices for Equipment will be Delivered at Place (DAP) (INCOTERMS 2020) pursuant to the Purchase Order. Title with respect to the Equipment will remain with Service Provider until Client has paid for the equipment or services in full.  Service Provider reserves the right to control the routing and method of shipment.

(b) All Equipment shall be prepared for shipment in a manner which: (i) follows good commercial practice; (ii) is acceptable to common carriers for shipment; and (iii) is adequate to ensure safe arrival. Service Provider shall mark all containers with all necessary lifting, handling and shipping information, purchase order number, date of shipment and the names of Client and Service Provider. Client shall notify Service Provider of the method of shipment and expected delivery date. If no instructions are given, then Service Provider shall select the carrier, given the time constraints known to Service Provider. 

10. Delivery/Shipment Schedule. All quoted shipment or delivery timetables shall commence from the date stated in the Proposal (typically after drawing approval or after finalization of specification details). Delay in receipt by Service Provider of technical information or drawings or any changes made by Client shall extend any agreed upon shipping or delivery date. Quoted shipment date is the date that Equipment leaves the manufacturing site and is specifically not the date Equipment is schedule to be received by Client.

11. ERRORS IN DELIVERY. CLAIMS AGAINST SERVICE PROVIDER FOR SHORTAGE OR ERRORS SHALL BE MADE IN WRITING BY CLIENT WITHIN TEN (10) DAYS AFTER RECEIPT OF EQUIPMENT AT CLIENT’S SITE. 

12. Change Orders. Either Party may propose changes to the Proposal (each, a “Request for Change”). Service Provider will analyze each Request for Change and provide a written report to Client on the feasibility of such Request for Change and the effect, if any, that such Request for Change would have on the cost of implementing such change(s). The parties agree to consider and negotiate in good faith any proposed changes to the Proposal. Proposed changes shall be effected through written change orders which shall constitute amendments to the Proposal (“Change Orders”). No Change Order, or other amendment to the Proposal shall be effective, and no work shall be performed pursuant thereto, until it is reduced to writing and is signed by authorized representatives of each of party. 

13. Installation and Start-Up. Unless otherwise provided in the Proposal, Client shall provide and pay for all labor, tools, rigging and services reasonably required to fully install the Equipment. Installation supervision and/or start-up will be provided as stated in the Proposal. If installation supervision and/or start-up are not included in the Proposal, then Service Provider will quote such services upon request. Under no circumstances shall Service Provider be obligated to install the Equipment unless Service Provider accepts this responsibility in writing. 

14. Indemnification. 

(a) Service Provider shall indemnify, defend and hold harmless Client and its officers, directors, employees, agents and affiliates from and against any and all damages, judgements, losses, claims, costs, including attorneys’ fees and expenses, (collectively, “Losses”) that Client may incur or suffer as a result of or arising out of any breach of this agreement or willful misconduct of Service Provider. 

15. Taxes. Client shall be solely responsible for all sales, revenue, excise or other taxes (other than any franchise taxes or income taxes imposed on Service Provider) and shall pay any license fees arising out of the sale of the Equipment covered by the Proposal. In Service Provider’s discretion, such taxes, fees and other charges shall be added to the purchase price and shall be paid by Client, or, in lieu thereof, Client shall provide Service Provider with a valid tax exemption certificate acceptable to the taxing or other authorities. Any such taxes, fees and other charges shall be stated separately on Service Provider’s invoice. 

16. No Intellectual Property Rights. Client specifically acknowledges that it is acquiring rights only in the physical Equipment which Client is purchasing under the Proposal, and Client is not acquiring any ownership of any intellectual property rights that may be incorporated into any such Equipment, including any patents, trademarks, trade names, service marks copyrights, confidential information, proprietary information, software, trade secrets and know-how. In addition, Client specifically acknowledges that any computer software that is included within the Equipment may be owned by a third party, and Client is acquiring only a non-exclusive license to use that software in connection with the Equipment. The scope of such license is set forth in the license agreement(s) provided by Service Provider to Client (including any license arrangements set forth in Service Provider’s Proposal to Client) relating to that software. Client shall comply with its obligations under all such license agreement(s). Client shall not use, reproduce or copy any such software for use on any other Equipment or provide access to it by any third parties without the express written permission of Service Provider, except that Client may permit any third party service companies hired by Client to access the software and/or Equipment following the expiration of the applicable warranty period. Approved third parties shall be bound to the same extent as Client is bound. Notwithstanding the above, Client may create back-up and/or archive copies of any such software for its own use. Client recognizes that the software and documentation provided under the Proposal represent the intellectual property of Service Provider or its providers, and that Client is obligated to use reasonable precautions to protect the security of such software and documentation. Modification to the software without Service Provider’s express written consent is not permitted and will void any related warranty obligations. Client shall not attempt to reverse engineer or otherwise discover Service Provider’s intellectual property, patentable, patented or non-patented inventions, trade secrets, secret processes or other confidential information embodied or contained in Service Provider’s goods. 

17. Notices. Any notice or request required or permitted to be given under or in connection with the Proposal and/or these Terms shall be deemed to have been sufficiently given if in writing and sent by: (a) personal delivery against a signed receipt therefor; (b) certified mail, return receipt requested, first class postage prepaid; (c) nationally recognized overnight delivery service (signature required); (d) confirmed facsimile transmission; or (e) electronic mail (with any notices sent by facsimile transmission or electronic mail to also be sent by one of the other methods set forth in this Section), addressed, if to Service Provider, to the address of Service Provider shown on the Proposal, and if to Client, to the address of Client shown on Client’s Purchase Order. 

18. Governing Law and Venue. The Proposal and these Terms contained herein shall be governed by and construed in accordance with the laws of the State of New Jersey, without reference to its choice of law rules. The jurisdiction and venue for any disputes arising under these Terms shall be exclusively in the courts in the state of New Jersey. 

19. Anti-Kickback Act. By accepting these Terms, Service Provider represents, covenants, and warrants to and with Client that Service Provider and all of Service Provider’s subcontractors are in full compliance with the Anti-Kickback Act of 1986, as amended (the “Anti-Kickback Act”). Service Provider further agrees to indemnify, defend and hold harmless Client and its officers, directors, employees, agents and affiliates from and against any and all violations of the Anti-Kickback Act by Service Provider or any of its subcontractors. All defined terms set forth in the Anti-Kickback Act shall apply to this Section. 

20. Foreign Corrupt Practices Act. Service Provider represents and warrants that Service Provider shall not, and shall not permit any of its subsidiaries or affiliates or any of its or their respective directors, officers, managers, employees, independent contractors, representatives or agents to, promise, authorize or make any payment to, or otherwise contribute any item of value to, directly or indirectly, to any third party, including any non-U.S. official, in each case, in violation of the Foreign Corrupt Practices Act of 1977 (the “FCPA”), or any other applicable anti-bribery or anti-corruption law or policy, including but not limited to, Client’s Anti-Bribery/Anti-Corruption Policy.  Service Provider further represents that it shall, and shall cause each of its subsidiaries or affiliates to, maintain systems of internal controls (including, but not limited to, accounting systems, purchasing systems and billing systems) to ensure compliance with the FCPA, or any other applicable anti-bribery or anti-corruption law or policy. Service Provider further represents and warrants that it will notify Client within 5 (five) business days of any known or suspected violations of the representations and warranties made in this Section 21. 

21. Anti-Bribery/Anti-Corruption Policy and Gifts and Business Entertainment Policy. Service Provider represents and warrants that Service Provider and any of its subsidiaries or affiliates or any of its or their respective directors, officers, managers, employees, independent contractors, representatives or agents will comply with Client’s Anti-Bribery / Anti-Corruption Policy. Service Provider further represents that it shall, and shall cause each of its subsidiaries or affiliates to, maintain systems of internal controls to ensure compliance with the above named policies. Service Provider further represents and warrants that it will notify Client within five (5) business days of any known or suspected violations of the representations and warranties made in this Section 22.

22. Insurance. Service Provider shall, at all times during the term of these Terms, maintain and keep in full force and effect: (1) Workers Compensation Insurance as required by applicable law; and (2) Comprehensive General Liability Insurance, with a minimum limit of $1,000,000 per occurrence.

23. Assignment and Subcontractors. Service Provider will not assign, subcontract, or otherwise convey, transfer or delegate any of its rights or duties under these Terms to any third party without notice to Client. Service Provider will remain fully responsible in all respects to Client for the performance of the Services in accordance with these Terms, and will be deemed for purposes of these Terms to have performed the Services itself. All such subcontracts shall include terms substantially similar to those contained in these Terms.  Client may assign these Terms without consent to: (i) an affiliate; or (ii) a successor in interest to all or substantially all of the business assets of Client whether by way of a merger, consolidation, sale of all or substantially all of Client’s assets, change of control, or similar transaction.  These Terms will be binding upon the parties and their respective successors and permitted assigns. 

24. Entire Agreement.  The Proposal and these Terms constitute the entire agreement with respect to the Equipment and Services to be provided under the Proposal and represents a mutual understanding between the parties, superseding all previous communications, representations or agreements.  No purchase order, acknowledgement or other standard term or condition of either party shall be of any force or effect, it being the intent of the parties that the Equipment to be provided and the Services be performed pursuant to the terms of the Proposal and these Terms.