Calle3.COM  STANDARD TERMS AND CONDITIONS OF SALE FOR PRODUCTS

 

1                APPLICABLE TERMS.  This Agreement governs the sale of equipment components,parts. and materiasl  provided by Siemens ("PrOducts"). Any applicable addenda. these terms, Siemens

proposal, pnce quote, purchase order. or.acknowledgement ISSued by Stenw;ns form the parttes'final agreement (Agreement"). In the event of a confliCt between these documents, precedence shall                                                       

apply 1n accordance wnh the order hsted 1n the previOuS sentence. S1emens proposal. offer or acceptance 1s cond1uoned on Buyer's acceptance of thiS Agreement.  Any add1t1onal or conflicting terms in

Buyer's request for proposal, specifications, purchase order or any other wrilten or oral communicat1on are not binding on Siemens unless separately signed by Siemens. Siemens' failure to object to

Buyer's additionalor conflictni g terms does not operate as a waiver of any terms contained in this Agreement.

 

2.               PRICING & PAYMENT...Prices and paxment t rms are:  ( ).as stated in Siemens' proposal, or if none are stated;(ii) Siemens' standard pricesin effect when Siemens receives Buyer's purchase order;or tf netther (1) or (11) apply.then Siemens standard prtces 1n effect when the PrOducts ship.

 

(a) Payment. Unless stated in Siemens' proposal, all payments are due net thirty (30) days from the invoice datein United States Dollars.

 

(b)  Credit Approval. .All orders aresubject to credit approval by Siemens.  Siemens may modify, suspend or withdraw the credit amount or payment terms at any time. If there is doubt as to Buyer's f1nanc1ai condition,Stemens may withhold manufacturing or shtpment,require cash payments. or require other satisfactory security. Siemens may recover shipped PrOducts from the carrier pending such assurances.

 

(c) Installment Shipment. Where Products are delivered in shipments or only part or a shipment fails to comply with tl1is Agreement. the Buyer may only reject the non-compliant portion. Buyer will separately pay for each shipment. If Siemens holds or stores PrOducts for Buyer,shall do so at Buyer's sole rsi k and expense.

 

(d) Taxes. Shipping, Packing, Handling.  Unless stated in writing by Siemens,Siemens' prices exclude charges for freight. unloading, storage,insurance.taxes, excises. fees.dutieS or other government charges related to the Products. Buyer will pay these amounts or reimburse S1emens.  If Buyer claims a ta x or other exemption or direct payment permh.Buyer will provide a valid exemption cenificate or permrt andindemnify.defend and hold Siemens harmless from any taxes, cos!S and pena ies ar sing from same. Siemens' prices include the costs of its standard domestic packni g only. Any packing

deviatiOn, including U.S. Government sealed packing, will be charged  to Buyer. Increases. changes (1ncluding in application). adjustments or surcharges wh1ch may be incurred are for Buyer's account

(e) Late Payments. Late payments shall bear interest at an annualpercentage rate of twelve percent (12%) or the highest rate allowed by law, whichever is lower.

 

(0 Disputed Invoice.  If Buyer disputes all or any portion of an invoice.it must first deliver writtennotice to Siemens of the disputed amount and t11e bassi  for the dispute within twenty-one (21) days of receiv109 t11e invoice. Failure or Buyer to timely notify Siemens of any dispute constitutes a waiver or Buyer's claim. If Buyer only disputes a portion of the invoice, Buyer must pay the undsi puted portion in accordance w1th Article 2(a).  Upon resolution or the dispute. Buyer must pay the invoice or the remainder of the invoice, plus any accruedinterest on the late payment.

 

(g) SuspensionfTermination Right. Siemensmay suspend work if an undisputedinvoice is more than thirty (30) days past due. Sei mens may terminate this Agreement if an undisputed invoice IS more than sixty (60) days past due. Unless prohibited by law, Siemens may also terminate this Agreement immediately tn the event or a materai l adverse change in Buyer's financialcondition includtng.but not limited to, bankruptcy.insolvency, liquidation or similar financai lcondition.

 

3.               DELIVERY; TITLE: RISK OF LOSS. Products will be delivered F.O.B. Siemens point of shipment with title and rsi k of loss or damage passing to Buyer at that point.  Buyer is responsible for all transportation. insurance and related expenses. The related expenses shall include any taxes.duties or documentation fees. Siemens may make partial shipments. Any shipping, delivery and installation dates are estimated dates only. Siemens is not liable for any loss or expense incurred by Buyer or Buyer's customers if Siemens fails to meet its delivery schedule.

 

4.               DEFERMENT AND CANCELLATION. Buyer has no right to defer shipment but may cancel this Agreement on thirty (30) days written notice if Siemens has not already performed. If Buyer cancels tl1si Agreement. shall pay all cancellation charges including.wit11out limitation: (i) t11e full price for any finished Product: (ii) for partially completed product, the portion of the price determined to

be due by Siemens based on its percentage of completion of the PrOduct; (iii) reasonable overhead and profit: and (iv) any payments due subcontractors and/or suppliers for any matenals,components or

products ordered which cannot be cancelled, refunded, or redirected ror other beneficial use.

 

5.               TRANSPORTATION AND STORAGE. (a) When Products are ready for shipment, Siemens will: (I) inform Buyer, and Buyer will then promptly 9ive shipping instructions to Siemens;(ii) determine the method of transportation and shipment routing; and (ii)i ship the Products with fregi ht prepaid by normaltransportation.  If Buyer fails to prov1de timely shipping instructoi ns, Siemens will ship the PrOducts by normaltransportatoi n means to Buyer or to a storage loCation selected by Siemens. Buyer will pay or reimburse any excess transportation charges for specialor expedited transportation.

 

(b) If Products are placed into storage, delivery occurs and rsi k or loss transfers to Buyer when the PrOducts are placed on the carrier for shipment to the storage location. If the PrOducts are to be stored in the facility where manufactured, delivery occurs and risk of loss transfers to Buyer when placed in the storage location.

 

Buyer will pay all Siemens' storage expenses. incul dni g but not limited to, preparation for and placement into storage, handling, freight. storage, inspection, preservation,maintenance, taxes and insurance, uponreceipt or an invoice(s) from Siemens.  When conditoi ns permtt and upon payment to Siemens or all amounts due,Buyer must arrange.at its expense. to remove the Products from storage.  Buyer bears the risk or loss,damage or destruction to Products tn storage.

 

6.                 FORCE MAJEURE 1 DELAYS. If Siemens·performance is delayed by any cause beyond its reasonable control (regardless of whether the cause was foreseeable).including without limitation acts of God,strikes, labor shortage or disturbance.fire, accident, war or civil disturbance, delays or carriers, cyber·attacks.terrorist attacks. failure or normalsources of supply.or acts or inaction of government, Siemens· time of performance will be extended by a period equal to the length or the delay plus any consequences of the delay. Siemens will notify Buyer withtn a reasonable time after llecoming aware or any such delay.

 

7.               BUYER'S REQUIREMENTS. Siemens' performance is contingent upon Buyer timely fulfillai  llof its obligations under this Agreement. These obligations include the Buyer supplying all documents and approvals needed for Siemens to perform, including but not limited to technical informauon and data, drawing and document approvals. and necessary commercial documentation. Siemens may request  a change order for an equitable adjustment inprices and times for performance, as well as for any additionalcosts or any delay resulting from the failure or Buyer or Buyer's contractors. successors or assigns to meet these obligations.

 

8.                 INDEMNTI Y. Siemens and Buyer (each as an "Indemnitor") shall Indemnify the other ("Indemnitee") from and against all third party claims alleging bOdilyinjury.deatl1 or damage to a third party's tangible property.but only to the extent caused by the Indemnitor's negligent acts or omissions.  If the injury or damage is caused by the parties' jotnt or contributory negligence, theloss and/or expenses shall be borne by each party in proport on to its degree or fauh. No part or t11e Product(s) or Buyer's site is considered third party property.

 

Indemnitee shall provide the Indemnitor with prompt written notice of any tl1ird party claims covered by this Article. Indemnitor has tl1e unrestricted riiJht to select and hire counseland tl1e exclusive right to conduct thelegaldefense and/or settle the claim on theIndemnitee's behalf. The Indemnitee shall not make any admission(s) which might be preJudci ial to the Indemnitor and shall not enter into a settlement without the express permission or the Indemnitor.

 

g_                WARRANTIES. (a) Warranties. Siemens warrants that: ( ) each PrOduct is free from defectsin materialand workmanship; (ii) each Product materially conforms to Siemens' specifications that are attached to, or expressly incorporated into this Agreement: and (iii) at the time of delivery. Siemens has title to each Product free and clear of liens and encumbrances (collectively. the "Warranties"). The Warranties do not apply to software furnished by Siemens.  The sole and exclusive warranties for any software are set fonh in t11e applicable Software License/Warranty  Addendum.

 

(b) Condit ons to the Warranties. The Warranties are conditioned on: (i) no repairs. modifications or alterations being made to the Product other than by Siemens or its authorizedrepresentatives; (ii) Buyer handilng.using, storing. installing, operating and maintai ing t11e Product in compliance with any parameters or instructions in any specifications attached to, or incorporated Into this Agreement: (iii) compliance with all generally accepted industry standards:.(tv) Buyer dts ont1nutng ue or the.Product after 1t has. or should have had, knowledge or any defect; () Buyer provtdtng pompt wnuen notice of any warranty claims w1thin the warranty period descrrbed below: (VI) at Stemf!nS d• scret•on..Buyer-•ther remov•ng a':ld shlpp•ng te Product onon· onfon:n•ng part th reor to S1erm;ns, at

Buyer's expense, or granting Siemens reasonabie  access to the Products to assess the warranty cla1ms; (vu) Product not hav1ng been subJected to acctdent (1nclud1ng force maJeUfe). alterauon. abuse or

misuse;and (vii) Buyer not beingIn default of any payment obligation.

(c) Exclusions from Warranty Coverage. The Warranties do not apply to any equipment not provided by Siemens under this Agreement.

 

Any Product that is described as being experimental, developmental, prototype.or pilot is specifically excluded from the Warranties and is provided to Buyer "as is" with no warranties of any kind. Normal wear and tear is excluded, incul ding any expendable items that comprsi e part of the Product (such as fuses.light bulbs andlamps). Siemens does not warrant or guarantee that any PrOduct will be

secure from cyber th'eats.hacking or Similar malicious activity. Products that are networked, connected to the internet, or otherwise connected to computers or other devices must be appropriately

protected by Buyer and/or end user against unauthorzi ed access.

 

(d) Warranty Period.  Buyer must provide written notice of any claims for breach of Warranties by the earlier of twelve (12) montl1s from initial operation of the PrOduct or eighteen (18) months from shipment. Addttionally.absent written notice within the warranty periOd.any use or possession of the PrOduct after e xpiration of the warranty periOd is conclusive evidence that the Warranties have been satisfied.

 

(e) Remedies. Buyer's sole and exclusive remedies for breach or the Warranties are limited, at Siemens·discretion, tO repair or replacement or the Product.or its non-conforming parts,within a reasonable time periOd, or refund of ail or P.art of the purchase pnce. The warranty on repaired or replaced parts is limited to the remainder of the original warranty period. Unless Siemens agrees otherwise in writing, Buyer will be responSible for any costs associated with: (i) gaining access to the PrOduct: (ii) removal, dtsassembly,replacement, installation, or reinstallation of any equipment materials or structures to permit Siemens to perform its warranty obligations: (iii) transportation to and from the Sei mens factory or repair facility: and (iv) damage to equipment components or parts resulting in whole or in part from non-compliance by the Buyer with Article 9(b) or from their deteriorated condition.  All exchanged Products replaced under this Warranty will become the propeny of Siemens.

(f) Transferability.  The Warranties are only transferable during  the warranty period and only to the Product's initialend-user.

 

(g) THE WARRANTIES IN THIS ARTICLE 9 ARE SIEMENS' SOLE AND EXCLUSIVE WARRANTEI S AND ARE SUBJECT TO THE LIMITS OF LIABILITY IN ARTICLE 10 BELOW. SIEMENS MAKES NO OTHER WARRANTIES. E XPRESS OR IMPLIED,INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING AND USAGE OF TRADE.

 

10               LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, SIEMENS IS NOT LIABLE, WHETHER BASED IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE).STRICT LIABILITY.INDEMNITY OR ANY OTHER LEGAL OR EQUITABLE THEORY.FOR:LOSS OF USE.REVENUE, SAVINGS,PROFIT,INTEREST, GOODWILL OR OPPORTUNTI Y, COSTS OF CAPITAL, COSTS OF REPLACEMENT OR SUBSTITUTE USE OR PERFORMANCE, LOSS OF INFORMATION AND DATA, LOSS OF POWER. VOLTAGE IRREGULARITIES OR FREQUENCY FLUCTUATION.CLAIMS ARISING FROM BUYER'S THIRD PARTY CONTRACTS. OR FOR ANY TYPE OF INDIRECT, SPECIAL, LIQUIDATED, PUNITIVE, EXEMPLARY,COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.OR FOR ANY OTHER LOSS OR COST OF A SIMILAR TYPE.

 

SIEMENS' MA XIMUM LIABILITY UNDER THIS AGREEMENT IS THE ACTUAL PURCHASE PRICE RECEIVED BY SIEMENS FOR THE PRODUCT THAT GAVE RISE TO THE CLAIM.

 

BUYER AGREES THAT THE EXCLUSIONS AND LIMITATIONS IN THIS ARTICLE 10 Wil PREVAIL OVER ANY CONFLICTING TERMS AND CONDITIONS IN THIS AGREEMENT AND MUST BE GIVEN FULL FORCE AND EFFECT, WHETHER OR NOT ANY OR ALL SUCH REMEDIES ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THESE LIMITATIONS OF LIABILITY ARE EFFECTIVE EVEN IF SIEMENS HAS BEEN ADVISED BY BUYER OF THE POSSIBILITY OF SUCH DAMAGES. THE WAIVERS AND DISCLAIMERS OF LIABILITY, RELEASES FROM LIABILITY AND LIMITATIONS ON LIABILITY EXPRESSED IN THIS ARTICLE 10 EXTEND TO SIEMENS' AFFILIATES, PARTNERS, PRINCIPALS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES.SUPPLIERS, AGENTS, AND SUCCESSORS AND A SSIGNS.

 

11.             PATENT AND COPYRIGHT INFRINGEMENT. Siemens will,at its option and expense.defend or settle any suit or proceeding brought against Buyer based on an allegation that any Product or use thereof for its Intended purpose const tutes an infringement of any Patent Cooperation Treaty country member's patent or msi appropriation or a third party's trade secret or copyright in the country where the PrOduct is delivered by Siemens. Buyer will promptly give Siemens written nctice of the suit or proceeding and the authority.information.and assistance needed to deland tl1e claims. Siemens shall have the full and exclusive authory to defend and settle such claim(s) and will pay t11e damages and costs awarded in any suit or proceeding so defended.  Buyer shall not make any admission(s)

 

which might be prejudicial to Siemens and shall not enter into a settlement without Sieme!ls' consent. Siemens is not responsible for any settlement made without its prior written consent. If the Product or any part thereof, as a result of any suor proceedinso defended is held to constitute Infringement or its use by Buyer is enjoined. S1emens will, at its option and expense. either: (i) procure for Buyer the right to continue using said Product; (ii) replace it w1th substant ally equivalent  non-infrni ging Product; or (ii) modify the Product so it is non-infringing.

 

Siemens will have no duty or obligation under this Article 11 if the Product is:  (i) supplied according to Buyer's design or instructions and compliance therewith has caused Siemens to deviate from Its normal course of performance; (ii) modified by Buyer or its contractors after delivery; or (ii ) combined by Buyer or its contractors with devices. methods. systems or processes not furnished hereunder and by reason of said design, instruction, modification. or combination a suit is brought against Buyer. In addition, if by reason or such design, instruction, modification or combination. a suit or proceeding is brought against Siemens. Buyer must protect Siemens in the same manner and to the same extent that Siemens has agreed to protect Buyer under this Articel  11.

 

THIS ARTICLE 11 IS AN EXCLUSI VE STATEMENT OF SIEMENS'DUTIES AND BUYER'S REMEDIES RELATING TO PATENTS, TRADE SECRETS AND COPYRIGHTS,AND DIRECT OR CONTRIBUTORYINFRINGEMENT THEREOF.

 

12.           CONFIDENTIALITY. (a) Both during and after the term of this Agreement,the parties will treat as confidentialall information obtained from the disclosing party and all information compiel d or generated by the disclosing party under thiS Agreement for the receiving party.includni g but not limited to businessinformation, manufacturing information,technicaldata. drawings. flow charts,program listings,software code, and other software. plans and projections.  Neither party may disclose or refer to the work to be performed under this Agreement in any manner that identifies the other party withcut advance wrtiten permission. However, Siemens has the right to share confidential nformation with its affiliates and subcontractors.provided those recipients are subject to the same confidentiality obligations set forth herein.

 

(b) Nothing in this Agreement requ es a parly 10 trealas confiden ialany informalion which: (i) is or becomes generally known10 the public, withoulhe fauil of the receivin!J party;(ii) is disclosed 10 lhe receiving party, wilhout obligalion of conftden ialily. by a lhird party having the right to make such disclosure; (ii) was previously known10 the receiving party. without obligation of confiden11ality. which fact can be demonstrated by means of documents which are inlhe oossession oflhe rece1vina oarty uoan the dale of this Agreement livlwas indeoendently developed by receiving party or its

r t:t"'"'' t--"ll,.,;.,.c...  c -:. ev.atnceo oy wntum recOf05. wnnou1 tnt us.t1of Ot'>CIOef" conflat:nlli·U .n((.)fffit1ttOO 01 1v1 ,.., rt-Owrta to lA:' O• eto":>tO oy td"'       f;:.( C pt to tne extent e11g1ble for spec1al t eatmenr unoer an appropr1a1e pro1ect1ve order. provided that me party reqwed 10 diSClose by law Wlil promplly adv1se lhe or1gma11ng pany of any requiremem to make such dosclosure to allow the origlnallng party the ooportLJm:_. io obtain a protective order and assist the originming party in so doing

 

(c) It is Siemens'policy nolto unlawfully or improperly receive or use confidential informalion.includinglrade secrets, belonging to olhers.  This policy precludes Siemens from obtaining. directly or indirectly from any employee. contractor. or olher indiVidual rendering services to Siemens confidenlialinformation or a prior employer. client or any other person which such employee. con1rac1or. or ondov odualo5 under an obhgauon not to disclose. Buyer agrees to abide by lrus polocy.

13.            COMPLIANCE WITH LAWS. The parties agree to comply with all applicable laws and regulations. including but not limited to those relating to the manufaclure, purchase.resale,exportation.

transfer, assignment or use of the Products.

 

14.            CHANGES IN WORK. No change will be made to the scope of work unless Buyer and Siemens agree in writing lo the change and any resulting price, schedule or other contractual modifications. If any change to any law, rure.regulation.order. code. slandard or requirement impacls Siemens' obligations or performance under lhls Agreement Siemens may request a change order for an equitae adjustment in the prk:e and  time of performance.

 

15.             NON-WAIVER. Any waiver by a party of striclcompilance wilh lhis Agreemenlmust be in wriling, and any failure by the parties to require strict compliancein one instance will nOI waive its right to insist on strict compliance thereafter.

16.             MODIFICATION OF TERMS. This Agreement may only be moMied by a written inslrumentsigned by authorized representalives of bath parties.

 

17.        _                         ASSIGNMENT. Neither par1y may assign all or part of this Agreement. or any rights or obligations underlhis Aweement,without he prior wr uen consent of the other; but either party may assign 11s rgi hls and obligations, Wlhl oulrecourse or consent.to any parent wholly owned subsidiary. or affiliale or affiliale s successor organization (whether as a resullof reorganization, restruclunng or sale of substantially all oal  party's assets). However.Buyer shall not assignlhis Agreement to: a competitor of Siemens; an entily 1n litigalion wilh Siemens; or an enlity lacking the financialcapability to satisfy Buyer's obligations. Any assignee expressly assumes the performance or any obligation assigned. Siemens may gran!a securiyl interestin this Agreement and/or assign proceeds of lhis Agreement without Buyer's consent.

 

18.              APPLICABLE LAW AND JURISDICTION. This Agreement is governed by and construed in accordance with the laws of the Slale of Delaware,withculregard to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goodsis excluded. BOTH SIEMENS AND BUYER KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVE ALL RIGHTS TO A JURY TRIAL IN ANY ACTION OR PROCEEDING RELATED IN ANY WAY TO THIS AGREEMENT. Each party agreesIhat claims and disputes arising out of this Agreement must be decided exclusively in a federalor state court of competent jurisdiction located in a state in which either Buyer or Siemens maintains its principalplace or business. Each party submitslo the personaljurisdiclion of such courts for the purpose or litigating any claims or disputes.

 

19.             SEVERABILITY. I f any provision of this Agreement is held invalid, illegalor unenforceable, the remaining provisions will nolin any way be affected or impaired.  A court may modify the invalid, illegal or unenforceable provision to refel ct, as closely as possible, the parties' onginallntent.

 

20.               EXPORT /IMPORT COMPLIANCE. Buyer acknowledges thaiSiemens is requiredlo comply with applicable e xport I import laws and r99ulations relatinglo the sale.export. import, transfer. assignment, disposaland use of the Products. including any export I import license requirements. Buyer agrees hat Products will not at any time d ectly or indirectly be used.exported, imported, sold. transferred, aSSIQned or otherwise disposed or in a manner which willresullin non-rompliance with any export I import laws and regula ions. Siemens' continuing performance hereunder is conditioned on complai nce w1th such export I import laws and regulations at all times.

 

21.               PRODUCT RETURNS. Prior to lhe return of any Product o Sei mens, Buyer must Identify the Produclor portion thereof and obtain wriuen authorization and shipping instruclions from Siemens. Siemens has the right, in its sole discretion,to permit or rejeclany such return. Siemens  aulhcrizalion to return any Product lo Siemens does not relieve Buyer or ils obl19a1Jon  o pay for such Product  Upon recepi t inspection, and acceptance of the Product by Siemens, Siemens will issue a credit memo to Buyer,less applicable re-stocking fees. Siemens reserves the nghlto reject any hazardous material.

 

22.             NUCLEA.  Unless expressly aulhorized in wriling by Siemens•.the Products must not be usedin or in connection with a nuclear facility.or apj)ilcation. If Buyer uses any Productin conneclion with any nuclear rac1hty or acuvny, 11does so alns own nsk and Buyer W1ll1ndemmfy. defend and held s..,mens harmless.and wa1ves and willreqwre 11s 1nsurers to wawe all nght of recovery aga1nst Siemens for any damage. loss. destruclon,Injury or death resulting from a "nuclear incident, as defined inlhe Atomic Energy Act of 1954,  as amended, whelher or not due lo Siemens' negligence. Siemens' consent to Buyer's use  of lhe Product1n conneclon with any nuclear facility or applicat on will be subject to additional terms and conditions thaiSiemens deems necessary 10 protects interests.

 

23.             SURVIVAL. The articles titled "Palen!and Copyright Infringement," "Limitatoi n of Liability," "Confidentiailly." "Delivery;Ttiel ; Risk of Loss." "Exporl/ lmport Compliance." and "Nuclear " survive lerminalon. expiration or cancellalion of  his Agreement