1. General. The sale of products and services by Degree Controls, Inc. (“DegreeC”) is governed by these terms and conditions (“Terms and Conditions”). DegreeC’s offer to sell products and services to the Buyer (“Buyer”) is expressly conditioned upon Buyer’s acceptance of these Terms and Conditions, as evidenced by the placement of a purchase order by Buyer against a quote provided by DegreeC. These Terms and Conditions apply to the exclusion of any other terms that the Buyer seeks to impose or incorporate or which could be implied by trade, custom, practice or course of dealing. Any terms included on any acknowledgment form or other document(s) issued by or on behalf of Buyer shall not apply and are hereby voided, except to the extent that any such terms are expressly agreed to in writing by an officer of DegreeC. Any quote to sell products and/or services by DegreeC must be in writing to be valid, and all such quotes shall be valid for thirty (30) days from the date of issuance, unless otherwise set forth in such quote. A quote shall be deemed accepted only upon DegreeC’s acknowledgment of Buyer’s purchase order (an “Order”), provided that DegreeC receives such Order prior to the quote’s expiration date. Buyer may not cancel an Order without DegreeC’s prior written approval and such approval shall be at DegreeC’s sole discretion. In the event DegreeC agrees to permit Buyer to cancel an Order, Buyer will pay DegreeC, as a cancellation fee, all costs and losses attributable to the cancellation of an Order. Subject to the warranty provision set forth herein, products purchased under these Terms and Conditions are not returnable or refundable.
2. Prices. All prices include air freight packing, but exclude (and Buyer shall be solely responsible for) costs of loading, shipping, delivery, insurance, installation and commissioning. Prices do not include any fees, taxes or duties relating to the shipment and delivery of the products, including without limitations value-added tax (VAT), duty, import and export tariffs and other forms of taxes and excise duties in the United States and/or the recipient country. Payment shall be due on the date indicated in DegreeC’s invoice. For late payments, DegreeC may, in its sole discretion, charge interest at the market rate in force in the United States accruing from the date the payment was due until such payment is made in full together with such interest. The market rate of interest shall be defined as the lesser of (i) two percent (2%) above the prime rate as reported in The Wall Street Journal, Eastern Edition or (ii) the maximum rate permitted by applicable law.
3. Delivery. The estimated date of delivery shall be stated in DegreeC's quote issued to Buyer, and DegreeC will use commercially reasonable efforts to deliver the product(s) within the estimated time. However, Buyer expressly acknowledges and agrees that delivery dates are estimates only and that the time of delivery is not “of the essence;” DegreeC does not guarantee delivery on or by any estimated delivery date. In no event shall DegreeC be liable to Buyer for any costs, fees, penalties, alternate source charge backs or price reductions as a result of any failure to deliver the product(s) in accordance with any estimated delivery dates. Partial deliveries by DegreeC are permitted unless otherwise agreed upon in writing by the parties. Delivery shall be made Ex Works (EXW Incoterms 2010), DegreeC’s shipping point. In all cases, Buyer is solely responsible for all expenses involved in the shipment and delivery of the product(s) (including without limitation loading, freight, shipping, and insurance, forwarding and handling charges).
4. Title Transfer. Title to products shall pass to Buyer as soon as the products have been placed with a transport agent.
5. Use of Products. Buyer acknowledges and agrees that the products must be used and maintained in accordance with all instructions provided by DegreeC and, where stated, products must be operated only by personnel who have received the appropriate training. Any DegreeC products that are to be connected to an electrical supply must be operated only by appropriately trained and qualified personnel and must not be made available to any personnel without the proper training and qualifications. Buyer shall indemnify and hold harmless DegreeC from any injury or damage to person or property as a result of Buyer’s (including its employees’, agents’ and customers’) improper use or maintenance of the products.
6. Drawings/Descriptive Documents. DegreeC reserves the right to alter measurements and dimensions as well as the design and description of any products. All data included in catalogues, prospects, circulars, advertisements, illustrated matter, price lists and on the company’s website are approximate and shall not be binding unless otherwise agreed upon in writing by the parties. Drawings, descriptive documents, parts lists and other documentation provided or made available to Buyer by DegreeC is Confidential Information and is subject to the restrictions and obligations outlined in the Confidential Information section contained in these Terms and Conditions.
7. Confidentiality. Confidential Information means any and all information disclosed by DegreeC to Buyer whether or not such information is marked confidential, including information relating to the matters which are the subject of these Terms and Conditions and all other information regarding DegreeC’s past, present or future research, technology, know-how, ideas, concepts, designs, inventions (whether patentable or not), products, markets, computer programs, prototypes, processes, machines, manufacture, compositions of matter, business plans and operations, technical information, drawings, schematics, specifications, and the like (“Confidential Information”). Confidential Information shall not include information which is: (a) at the time of disclosure, or thereafter becomes, a part of the public domain through no act or omission by Buyer or its representatives; (b) lawfully in the possession of Buyer prior to disclosure by or on behalf of DegreeC as shown by Buyer’s written records; (c) lawfully disclosed to Buyer by a third party which did not acquire the same under an obligation of confidentiality from or through DegreeC as shown by written records; or (d) independently developed by Buyer without use of, or refence to, DegreeC’s Confidential Information as shown by Buyer’s written records. Buyer shall not, without the prior consent of DegreeC, disclose any of DegreeC’s Confidential Information to anyone for any reason at any time or use any of DegreeC’s Confidential Information for any purpose except for the exercise of its rights, and performance of its obligations, under these Terms and Conditions.
8. Intellectual Property Rights. Notwithstanding that title to the product(s) may pass to Buyer, DegreeC shall remain the exclusive owner of all intellectual property rights of whatever nature including, without limitation, copyrights, patents, patentable inventions, know-how, trade secrets, trademarks and design rights (whether registered, registrable or otherwise) embodied in or otherwise relating to the product(s) (including any software contained therein). Unless otherwise expressly agreed in writing by DegreeC, all rights (including all intellectual property rights) in and to any customizations, modifications or enhancements made by DegreeC to the products or the software and any design or development work undertaken by DegreeC, whether for or on behalf of Buyer, shall be the exclusive property of DegreeC. Other than as permitted by applicable law, Buyer shall not reverse engineer, decompile or disassemble the product(s) or any part thereof. Buyer shall not remove any proprietary notices and/or branding contained in or otherwise affixed to the products. To the extent software is either incorporated into the products or purchased separately, Buyer shall not copy said software. Buyer shall not license or assign any rights in the software. DegreeC grants to Buyer a limited, non-exclusive license to use the software provided with the products solely for the purpose of operating the products in accordance with DegreeC’s written documentation.
9. Warranty. For a period of one (1) year following the date of delivery, and subject to the other provisions of this Warranty Section, DegreeC warrants that all new products that are both (a) manufactured by DegreeC and (b) purchased directly from DegreeC (or an authorized distributor of DegreeC) shall be free of material defects in materials and workmanship. Buyer’s sole and exclusive remedy, and DegreeC’s sole and exclusive obligation, in the event of any product defect shall be for DegreeC to, at its option, repair or replace such products free of charge. In no event shall DegreeC be liable for ordinary wear and tear. In order to get the benefit of the foregoing warranty, Buyer must examine the delivered products immediately upon receipt thereof and report to DegreeC, in writing, any visible defects within ten (10) working days of such receipt. Buyer’s failure to report defects within the foregoing time period will be deemed an unqualified waiver of any and all of Buyer’s rights to warranty claims. DegreeC does not provide any warranty for third party parts, components, or products that are not manufactured by DegreeC. Such parts, components, or products may be warranted by third parties on a “pass through” basis. The foregoing remedies shall not apply to any product failure caused in whole or in part by (i) Buyer’s failure to operate, maintain, or service the products in accordance with DegreeC’s documentation, (ii) any alteration, modification, or repair made to the products other than by DegreeC, or (iii) use of the products for a purpose other than that for which it is intended. THE FOREGOING EXPRESS WARRANTY extendS only to the original customer of Degreec or DegreeC’s authorized distributor, as the case may be. THE CORRECTION OF ANY DEFECT IN, OR FAILURE OF, PRODUCTS BY REPAIR OR REPLACEMENT IN ACCORDANCE WITH DEGREEC’S POLICIES DESCRIBED HEREIN SHALL BE DEGREEC’S SOLE AND EXCLUSIVE OBLIGATION AND THE SOLE AND EXCLUSIVE REMEDY OF BUYER FOR ANY AND ALL LOSSES, DELAYS OR DAMAGES RESULTING FROM THE PURCHASE OR USE OF DEGREEC’S PRODUCTS. OTHER THAN THE LIMITED WARRANTY SPECIFICALLY STATED HEREIN, DEGREEC SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES WITH RESPECT TO DEGREEC’S PRODUCTS, INCLUDING THE PERFORMANCE THEREOF AND ANY SERVICES PROVIDED TO BUYER, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE.
10. Limitation of Liability. To the extent permitted by law, DegreeC shall not be liable whether in contract, tort (including negligence), breach of statutory duty or otherwise for any special, incidental, consequential or indirect damages or for loss of goodwill or business profits, lost revenue, work stoppage, computer failure or malfunction, or for any and all other exemplary or punitive damages arising hereunder or from the use of products, including, without limitation, any such loss or damage relating to personal injury or property damage, even if DegreeC has been advised or was aware of the possibility of such loss or damages. Except in the case of death or personal injury caused by DegreeC’s gross negligence or for any matter in which it would be unlawful for DegreeC to exclude or restrict its liability, DegreeC's total aggregate liability to Buyer for any and all other damages, losses, or liabilities arising hereunder or from the products, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed the amounts actually received by DegreeC from Buyer with respect to the product giving rise to the liability.
11. Indemnification. Buyer shall indemnify, defend and hold DegreeC harmless against any claims, actions, expenses or losses resulting from any actual or alleged infringement of the intellectual property rights of third parties, including, but not limited to, patents, copyrights, trade secrets and trademarks, associated with products or services furnished by DegreeC that have been manufactured to the specifications and requirements of Buyer. For the avoidance of doubt, Buyer shall assume all patent, copyright, trademark, trade secret or other intellectual property liability for goods specifically manufactured to Buyer’s requested designs, specifications, instructions or requirements.
12. Export Control. Customer acknowledges that each of DegreeC’s products and any related software and technology, including technical information supplied by DegreeC or contained in documents (collectively “Products”), is subject to U.S. export controls and economic sanctions laws, including but not limited to the Department of Commerce Bureau of Industry and Security’s Export Administration Regulations (“EAR”) and the Department of Treasury’s Office of Foreign Assets Controls’ (“OFAC”) Foreign Assets Control Regulations. Buyer will not, directly or indirectly, export, re-export, transfer or re-sell any Product, or system incorporating such Product, to any unauthorized end user or end use. An “unauthorized end user” includes, without limitation: (1) any person or entity for which an authorization to export or transfer the Product is required by any governmental body of competent jurisdiction but which authorization has not been obtained; (2) any person or entity located in the Crimea region, Cuba, Iran, North Korea, Sudan, or Syria; (3) the governments and government agencies of these countries, wherever they may be located; (4) any person or entity on any applicable U.S. and non-U.S. government restricted parties list, including but not limited to OFAC’s List of Specially Designated Nationals and Blocked Persons, List of Foreign Sanctions Evaders, and Sectoral Sanctions Identification List; and BIS’s Entity List, Denied Persons List and Unverified List; and (5) any person or entity that Buyer knows, or has reason to know, that such person or entity will export or transfer Products to any of the foregoing persons or entities. Products shall not be used in any nuclear or chemical/biological weapons or missile technology end uses. Buyer shall cooperate fully with DegreeC in any official or unofficial audit or inspection related to any applicable export control laws or regulations and shall indemnify, defend and hold DegreeC harmless from any violation of this Export Control section by Buyer, its employees, agents, consultants or customers.
13. Force Majeure. DegreeC shall not be liable for failure to perform or for delay in performance due to fire, flood, strike, or other labor difficulty, act of God, act of any governmental authority, riot, embargo, fuel or energy shortage, wrecks or delays in transportation, inability to obtain necessary labor, materials or manufacturing facilities from usual sources, or due to any cause beyond DegreeC’s reasonable control. In the event of a delay in performance due to any such cause, the estimated date of delivery or time for completion of performance will be extended by a period of time reasonably necessary to overcome the effect of such delay. If DegreeC reasonably determines that any such delay in performance is likely to extend for a period of ninety (90) days or more, DegreeC shall have the right to cancel the applicable order upon notice to Buyer with no liability or further obligation to Buyer with respect to such order.
14. Governing Law/Venue. These Terms and Conditions and any dispute or claim arising hereunder shall be governed by the laws of the State of New Hampshire and the parties irrevocably submit to the exclusive jurisdiction of the state and federal courts of the State of New Hampshire.
15. Assignment and Subcontracting. DegreeC may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under these Terms and Conditions. Buyer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under these Terms and Conditions without the prior written consent of DegreeC.
16. Severability. If any court or competent authority finds that any provision of these Terms and Conditions (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the remaining provisions of these Terms and Conditions shall not be affected.
17. Waiver. A waiver of any right or remedy under these Terms and Conditions is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under these Terms and Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
18. Entire Agreement. These Terms and Conditions, DegreeC’s quote and the Order (excluding any terms submitted by Buyer with the Order) constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all previous representations, agreements and other communications between the parties, both oral and written.