WHEREAS, Seller wishes
to sell and Buyer wishes to purchase
Seller’s product in the quantities
and at the prices more specifically
set forth on the quotation attached
hereto and incorporated herein by
this reference (the “Quotation”).
NOW, THEREFORE, the
parties hereto agree as follows:
1. Purchase
Price/Quantity. Buyer
agrees to purchase from Seller and
Seller agrees to sell to Buyer the
products referenced at the prices
and in the quantities set forth on
the Quotation (the “Products”),
subject to the terms and conditions
of this agreement. Seller quotations
for the Americas are quoted in US
Dollars. The US Dollar quotation is
based on an exchange set by Seller.
The exchange rate used is marked on
the quotation. If the exchange rate
changes at time of order or time of
delivery with more than 5% (+5% or
-5%) seller will have the right to
reflect this change in the order acknowledgement
(in case of response to an order)
or on the invoice (in case of a change
after sending the order acknowledgement).
2. Delivery/Payment.
(i) The scheduled delivery date(s)
for the Products shall be stated on
the order acknowledgment letter (the
“Order Acknowledgment”)
provided to Buyer promptly after receipt
of an order by Seller from Buyer with
respect to the Products, and payment
terms for the Products shall be stated
in Seller’s invoice provided
to Buyer (the “Invoice”).
If no payment terms are stipulated
on the Invoice, the following payment
terms shall apply: 20% payment as
invoiced to buyer on receipt of Buyer’s
order, 70% payment as invoiced to
Buyer upon shipment of the Products
and 10% payment as invoiced to Buyer
upon completion of installation of
the Products (unless otherwise agreed
in writing by the parties), and any
balance due and unpaid by Buyer will
be assessed a monthly charge of 1.5%
per month; (ii) all deliveries hereunder
shall be F.O.B. Seller; (iii) if Buyer
cannot receive the Products on the
scheduled delivery date, Buyer must
immediately notify Seller and also
pay Seller a reasonable storage charge
for the Products until, and prior
to, such time as Buyer accepts delivery
of the Products; (iv) no amount payable
by Buyer to Seller under any Invoice
shall be subject to set-off for claims
of Buyer. In the event Seller deems
it necessary to enforce Buyer’s
obligations pursuant to this Agreement
(including, without limitation, to
collect any amount due to Seller hereunder
or under any Invoice) by or through
an attorney, Buyer shall pay to Seller
upon demand all costs and expenses
of such enforcement, including, without
limitation, reasonable attorney's
fees. Acceptance by Seller of less
than the full amount of any installment
or payment under any Invoice shall
not constitute a waiver by Seller
of its right to collect the balance
thereof.
3. Term. This
proposal by Seller to sell the Products
pursuant to the Quotation will automatically
terminate thirty (30) days after the
date written on the Quotation if not
accepted by Buyer prior to such time.
However, this proposal may be extended
by the mutual written agreement of
both parties.
4. Acceptance of
Seller's Proposal. Buyer's acceptance
of Seller’s proposal to sell
the Products pursuant to the Quotation
and the terms and conditions of this
Agreement shall be indicated by any
of the following, whichever first
occurs: (i) Buyer's written acknowledgment
hereof by placement of an order with
Seller, including, without limitation,
by Buyer’s submission to Seller
of Buyers purchase order, (ii) Buyer's
acceptance of any shipment of any
part of the Products specified for
delivery to Buyer; or (iii) any other
act or expression of acceptance by
Buyer. Buyer's acceptance is expressly
limited to the terms and conditions
of this Agreement in their entirety,
without addition, modification or
exception, and any term, condition
or proposal hereafter submitted by
Buyer (whether oral or in writing)
which is inconsistent with or in addition
to the terms and conditions of this
Agreement is objected to and is rejected
by Seller. Seller’s silence
or failure to respond to any such
subsequent term, condition or proposal
shall not be deemed to be Seller’s
acceptance or approval thereof.
5. Additional Terms
and Conditions. Notwithstanding
the foregoing Paragraph 4, this Agreement
shall incorporate the terms and conditions
contained in the Invoice and the Order
Acknowledgment. In the event of a
conflict between the terms of this
Agreement and the Invoice or Order
Acknowledgment, the terms of this
Agreement shall govern.
6. Cancellation.
Buyer may cancel its order for the
Products by providing written notice
to Seller. Seller, in its sole discretion,
shall either approve or disapprove
of such cancellation by written notice
to Buyer. In the event of any cancellation
expressly approved by Seller, Buyer
shall pay to Seller the aggregate
amount of the purchase price for the
Products in accordance with the following
schedule: (i) 30% of the aggregate
purchase price for the Products shall
be due and payable to Seller if Buyer
cancels its order for the Products
within 21 days from the date the order
is received by Seller; (ii) 70% of
the aggregate purchase price for the
Products shall be due and payable
to Seller if Buyer cancels its order
for the Products between 22 and 42
days from the date the order is received
by Seller; and (iii) 100% of the aggregate
purchase price for the Products shall
be due and payable to Seller if Buyer
cancels its order for the Products
at any time after 42 days from the
date the order is received by Seller.
7. Approval by
Manufacturer. Seller's performance
hereunder is contingent and conditioned
upon (i) approval of the order for
the Products by the manufacturer thereof
(“Manufacturer”), and
(ii) Manufacturer's ability to fill
said order reasonably in advance of
the scheduled delivery date(s) as
provided on the Order Acknowledgment.
If Manufacturer does not approve said
order or indicates its inability to
fill same within such time frame,
Seller shall notify Buyer and return
to Buyer any amounts previously paid
to Seller hereunder, whereupon this
Agreement shall terminate and be of
no further force or effect, without
further liability to Seller. Notwithstanding
the foregoing, Buyer and Seller may
mutually agree in writing to a new
delivery date, if practical under
the circumstances.
8. Warranty.
Seller warrants that the Products
sold hereunder shall be free from
defects in material and workmanship
for a period of twelve (12) months
from the date of first use or 2,000
operating hours, whichever occurs
first. For the purposes of this Agreement,
“first use” shall mean
that point in time where the Products
are installed and are available for
use by Buyer. In the event that defects
in material or workmanship occur during
the warranty period Seller will, at
its option, repair or replace the
parts in question. Tooling, consumables
and normal maintenance and adjustments
are not covered by this warranty.
9. Limitation on
Liability. THE WARRANTIES SET
FORTH IN PARAGRAPH 8 ARE THE ONLY
WARRANTIES MADE IN CONNECTION WITH
THE PRODUCTS, AND THERE ARE NO OTHER
WARRANTIES, EITHER ORAL OR WRITTEN,
EXPRESSED OR IMPLIED, WITH RESPECT
TO ANY OF THE PRODUCTS SOLD HEREUNDER
WHETHER AS TO MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR ANY OTHER
MATTER. SELLER SHALL NOT BE LIABLE
UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL,
CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY
DAMAGES ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS AGREEMENT OR RESULTING
FROM ANY DEFECT TO THE PRODUCTS, INCLUDING,
BUT NOT LIMITED TO, DAMAGES FOR LOST
PROFITS, LOSS OF USE, LOST DATA OR
ANY DAMAGES OR SUMS PAID BY BUYER
TO THIRD PARTIES, EVEN IF SELLER HAS
BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. THE FOREGOING LIMITATION
OF LIABILITY SHALL APPLY WHETHER ANY
CLAIM IS BASED UPON PRINCIPLES OF
CONTRACT, WARRANTY, NEGLIGENCE, OR
ANY OTHER TORT, BREACH OF ANY STATUTORY
DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION,
THE FAILURE OF ANY LIMITED OR EXCLUSIVE
REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE,
OR OTHERWISE. FOR THE PURPOSES OF
PARAGRAPH 8, THE SOLE LIABILITY OF
SELLER TO REPAIR OR REPLACE SHALL
BE NO GREATER THAN THE AGGREGATE PURCHASE
PRICE OF THE PRODUCTS RECEIVED BY
BUYER FROM SELLER.
10. Force Majeure.
Seller shall be excused from its inability
to perform hereunder as a result of
any prohibition, failure, interruption
or delay in manufacture or delivery
which may be occasioned by sabotage,
fire, flood, explosion, labor dispute,
strike, work stoppage, insurrection,
war, act of God, shortage of supplies
or other cause beyond Seller's control.
In the event of any such prohibition,
failure, interruption or delay, Seller,
may, at its sole option, extend the
anticipated delivery date or terminate
this Agreement, in whole or in part.
IN NO EVENT SHALL SELLER BE LIABLE
FOR ANY CONSEQUENTIAL OR INCIDENTAL
DAMAGES OR CLAIMS OF BUYER RESULTING
FROM FAILURE OR DELAY IN DELIVERY
OF THE PRODUCTS.
11. Service of
the Products. Seller will use
its good faith efforts to fulfill
its obligations set forth in Paragraph
8 arising as a result of warranty
claims on the Products within a reasonable
period of time after Buyer has provided
written notification of such claim
to Seller. Upon expiration of the
warranty period, Seller may render,
at the request of Buyer, substantially
similar service as the IPTE customer
support in effect at that time and
at such prices as IPTE customer support
shall establish at that time.
12. Proprietary
Information. For a period of five
(5) years from the date written on
the Quotation, each of seller and
buyer will maintain as confidential
and will neither disclose to any person
or entity outside their respective
employ, nor use for any other purposes
other than the performance of this
Agreement, any information to which
the receiving party becomes privy
by virtue of this Agreement, including
but not limited to, all drawings,
prints and manufacturing process information
and proprietary business information
gained while visiting the other party’s
facility. Upon the termination of
this Agreement, or in the event Buyer
does not accept Seller’s proposal
to sell the Products pursuant to the
Quotation and the terms and conditions
of this Agreement, each of Seller
and Buyer will return any such information
contained in writing at the request
of the other party. Each party’s
obligation not to disclose or misuse
such information will not apply to
any information which is either in
the public domain through no fault
of the receiving party or is developed
independently by the receiving party
or by some third party.
13. Limited Indemnification.
(i) Seller, at its own expense, shall
defend any suit brought against Buyer
insofar as it is based upon a claim
that any of the Products, as such,
directly infringe upon any third party’s
patents and shall indemnify Buyer
against any final award of damages
or costs in such a suit. This indemnity
is conditioned upon Buyer giving Seller
(1) prompt written notice of any suit
for such infringement, which notice
shall be received by Seller in a reasonable
period of time prior to the time an
answer is due in such suit, (2) full
authority, at Seller’s option,
to settle or to conduct the defense
thereof, and (3) full assistance and
cooperation in said defense; (ii)
no cost or expense shall be incurred
by or on behalf of Seller without
its written consent; (iii) in the
event that any of the Products in
such suit is held to constitute such
infringement, Seller at its own election
and at its own expense may either
procure for Buyer the right to continue
the use of said Products, or modify
said Products so that they becomes
non-infringing; (iv) Seller shall
not be obligated to defend against,
and shall not be liable for, (1) infringement
of any patent claim covering: (a)
a combination of the Products with
any other product, whether or not
supplied by Seller, or (b) any method,
process or products in or for which,
in the manufacture of which, the Products
may be used; or (2) patent infringement
arising from compliance by Seller
with Buyer’s design, specification,
or instruction. Buyer shall indemnify
Seller against any final award of
damages or costs for such infringement,
as specified in subparagraphs (iv)(1)
and (2) above, and shall reimburse
all costs incurred by Seller, in defending
any suit for such infringement and
if so requested, shall give full authority
to Seller to conduct the defense thereof
and full assistance and cooperation
in such defense; (v) it is furthermore
specifically understood that IPTE
is not liable for any claim or demand,
based upon infringement or alleged
infringement of any third party’s
patent, which claim or demand is directly
or indirectly, based upon the number
of products manufactured by means
of the Products, irrespective of whether
such claim or demand alleges that
Seller’s system as such, or
its use, infringes or contributes
to the infringement of any such patent;
(vi) Seller’s liability under
this Paragraph 13 shall be limited
to a period of five (5) years starting
on the date written on the quotation.
NOTWITHSTANDING THE FOREGOING, SELLER’S
LIABILITY UNDER THIS PARAGRAPH 13
SHALL BE LIMITED TO FIVE PERCENT (5%)
OF THE AGGREGATE PURCHASE PRICE RECEIVED
BY SELLER FROM BUYER; (vii) THE FOREGOING
STATES THE ENTIRE LIABILITY OF SELLER
IN CONNECTION WITH INFRINGEMENT OF
THIRD PARTY PATENTS BY THE PRODUCTS,
AND EXCEPT AS STATED IN THIS PARAGRAPH
13, SELLER SHALL NOT BE LIABLE FOR
ANY LOSS OR DAMAGE OF WHATEVER KIND
(INCLUDING, IN PARTICULAR, ANY INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR EXEMPLARY
DAMAGE) SUFFERED BY BUYER OR ANY OTHER
PERSON WITH RESPECT TO THE INFRINGEMENT
OF ANY PATENT.
14. No License.
Buyer acknowledges that it shall acquire
no rights in any intellectual property
of Seller and in particular no rights
in any patent, trademark, copyright,
mask work right, or trade secret in
any material created for Buyer by
Seller under this Agreement.
15. Governing Law.
This Agreement shall be interpreted
and construed in accordance with the
laws of the State of Georgia applicable
to contracts to be fully performed
therein.
16. Incorporation.
The exhibits to this Agreement, if
any, shall be incorporated into the
terms and conditions of this Agreement,
as if same were fully set forth herein.
17. Entire Agreement.
This Agreement constitutes the entire
and exclusive agreement between Buyer
and Seller with respect to the purchase
and sale of the Products. All prior
and contemporaneous proposals, negotiations,
representations and agreements are
merged into this Agreement and no
course of prior dealings between the
parties and no usage of the trade
shall be relevant to supplement or
explain any term used in this Agreement.
No modification hereof shall be of
any force or effect until signed by
Seller and Buyer.
18. Severability.
Each provision set forth in this Agreement
is separate, distinct and severable
from the other and remaining provisions
of this Agreement. The unenforceability
of any provision set forth herein
shall not affect or impair the enforceability
of any other provision set forth herein.
19. Assignment.
This Agreement may not be assigned
by either party, without the prior
written consent of the other party,
except that Seller may assign this
Agreement to any affiliate or subsidiary
of Seller.
20. Notice.
Any notice, demand or communication
required or permitted to be given
by any provision of this Agreement
shall be in writing and shall be deemed
to have been sufficiently given or
served for all purposes if delivered
personally to an executive officer
of the party to whom the same is directed,
or sent by registered or certified
mail, postage and charges prepaid,
addressed to the address of the party
which is set forth in this Agreement.
Either party may change its address
for purposes of this Agreement by
written notice to the other party
in accordance herewith. Except as
otherwise provided herein, a notice
shall be deemed to be given on the
date it is personally delivered, or
three (3) business days after the
date on which the same is deposited
in a regularly maintained receptacle
for the deposit of United States mail,
addressed and sent as aforesaid.
21. Miscellaneous.
The prices and service charges stated
in the Quotation do not include the
following items, for which Buyer is
responsible. Buyer is responsible
for all sales, use, excise or other
taxes or importation duties or assessments,
levies or other governmental charges,
and transportation costs associated
with transporting and importing the
Products from the F.O.B. origin shipping
point. Buyer must provide (i) the
necessary physical enclosure and environmental
control equipment, including air conditioning
and humidity control, to assure proper
operation of the Products; (ii) the
necessary electrical power conditioning
equipment to assure proper operation
of the Products; and (iii) the necessary
compressed air equipment, including
air compressor, dryer and filtration,
to assure proper operation of the
Products. Seller will provide the
specifications for the equipment described
in items (i), (ii) and (iii) above.
22. Security Interest.
Seller expressly retains a first priority
purchase money security interest in
each item of the Products delivered
to Buyer as security for payment of
the purchase price, and any additional
charges hereunder or under any Invoice.
In furtherance of the foregoing, Buyer
hereby grants and conveys to Seller
(effective as of the time that Buyer
obtains title to the Products) a first
priority purchase money security interest
in the Products as security for the
timely payment and performance by
Buyer of its obligations hereunder
and under any Invoice now or hereafter
issued by Seller in connection herewith.
Buyer shall execute and deliver such
other documentation as shall be reasonably
requested by Seller to further evidence
and perfect such security interest,
including without limitation, one
or more financing statements.
02/01/2005
