GENERAL TERMS AND CONDITIONS FOR SALES
Updated: February 8, 2021
1. The Parties and the Product
1.1 In these general terms and conditions for sales (the “General Terms and Conditions for Sales”), the term “the Seller” shall be taken to signify Spire DME, LLC. The term “the Buyer” or “you” shall be taken to signify any private person who contemplates to or does purchase Product from the Seller, any public or state owned company with whom a framework agreement on sale of the Seller’s product has been reached or to whom a tender has been submitted, or any buyer listed on any purchase order (including any “Placed Order” from this Site) for the purchase of Products from the Seller. The Seller and the Buyer are separately referred to as a “Party” and collectively referred to as the “Parties”.
1.2 As used herein, “Product” shall mean any medical equipment and other products sold (including accessories, consumables, and spare parts) by the Seller. The term Product shall include all applicable manuals and other written instructions about any Product given by the Seller. The term “Product Related Services” shall be taken to signify services rendered or advice given by the Seller, its affiliates, or their respective representatives in relation to the sale of the Product.
1.3 The Seller reserves the right to change, without prior notice, the design, construction, and type of materials used in the manufacture of any of its Products. The Seller further reserves the right to discontinue, without prior notice, any of its Products and/or replacement parts therefor. However, the Seller undertakes to abide by any regulations outlining any support periods needed for such discontinued Products.
1.4 These General Terms and Conditions for Sales have been drawn up in the English language, but may be translated into other languages. In case of discrepancies between the different language versions, the English version shall prevail.
2.1 These General Terms and Conditions for Sales shall be applicable to all purchases and deliveries of the Product to the Buyer and to any and all Product Related Services offered by the Seller within the Territory unless they have been altered explicitly by the Parties in writing. These General Terms and Conditions for Sales constitute an integral part of the agreement between Seller and the Buyer (collectively, together with any other applicable agreement or purchase order that incorporates these terms by reference, the “Agreement”).
3. Conclusion of Individual Agreements
3.1 The Buyer shall place a purchase order (including, by clicking the “Place Order” button, the “Purchase Order”) by written communication to the Seller, identifying the Products, or parts by number, quantity, purchase price, address for delivery, requested date of shipment and any special shipping instructions.
3.2 A legally binding agreement in respect of individual deliveries of Products or Product Related Services shall be deemed to have been concluded when the Seller has confirmed the Buyer’s Purchase Order in writing (including, the acknowledgement of the order (e.g., “Your order has been received.”, the “Order Confirmation”).
3.3 If the Buyer, in connection with the Purchase Order, has dictated conditions which are contrary to those set out in the Seller’s Order Confirmation or these General Terms and Conditions for Sales, failure on the part of the Seller to object to such conditions does not imply that they have been approved by the Seller, but the delivery shall be considered to be done according to the Seller’s Order Confirmation and these General Terms and Conditions for Sales.
4. Prices and Payment
4.1 The price of the Product or Product Related Services shall be according to the current price list of the Seller at the time of the Seller’s receipt of the applicable Purchase Order unless otherwise has been agreed upon in writing between the Parties. The Seller’s prices for the Products are always exclusive of any freight cost, unless otherwise agreed. Please note that other local charges may occur, depending on the Buyer’s region and local custom duties. Any and all discounts shall be separately agreed upon in writing by the Parties. Any amendment of the basis of calculation shall be agreed upon in writing by the Parties. The Seller shall have the right to change the prices for the Products at any time. Any price adjustments shall be made with at least 30 days’ notice prior to the new prices coming into effect.
4.2 Taxes associated to Products and Services (e.g., Federal, State, local, value-added, etc.) are not included in the price unless otherwise agreed in writing by the Seller. In addition, the Buyer acknowledges and is aware that there may be tax consequences from any participation in a rebate incentive program with the Seller and that the Buyer may be required to pay income tax on the value of any rebates it receives through a rebate incentive program with the Seller, if any. The Seller is not responsible for remitting any taxes on the Buyer’s behalf, or for providing the Buyer with any tax-related documentation. The Buyer is solely responsible for ensuring that any taxes arising from its participation in a rebate incentive program, if any, is reported and paid to the appropriate tax authority and hereby indemnify, hold harmless, and defend the Seller from any and all claims against the Seller arising from or relating to Buyer’s failure in complying with any law, regulation, or rules relating to taxes.
4.3 Payment shall be made in accordance with the Purchase Order or as agreed between the Parties. Payment shall be made in USD according to the agreed payment and credit terms.
4.4 If the Buyer is late in making payments, in addition to other remedies available to the Seller, (i) the Buyer, will pay interest on overdue amounts at two (2) % per month or maximum rate permitted according to mandatory law and (ii) the Seller may withhold delivery of Products. At payment after due date, the Seller has the right to recover any costs or expenses (including attorney’s fees) incurred by Seller to recover amounts due hereunder. The Seller shall furthermore have the right demand that acceptable securities be provided, amend the terms of payment and any possible credit limit and cancel the Agreement and all open Purchase Orders, whether or not they have been accepted by the Seller, upon delayed payment. In the event of a check returned for any reason and a stopped or reversed payment, the Seller may, at its sole discretion, charge and the Buyer agrees to pay to the Seller a fee. Should an invoice be referred to a third party for collection or other enforcement action be taken by the Seller, the Buyer agrees to pay any and all costs of collection incurred by the Seller, including any and all attorney and arbitration fees, lien filing fees, collection costs, and other legal expenses, and the limited warranty, as referenced herein, shall immediately become null and void and will only be reinstated upon payment of the outstanding fees, arrears interest, collection costs, and a reinstatement fee.
5. Reservation of Title
5.1 Any and all delivered Products shall remain the property of the Seller until paid for in full to the extent that such retention of property is permitted by applicable law. If the Buyer fails to timely pay all amounts due to Seller, the Seller shall have the right to reclaim the applicable Products for which payment has not been received by Seller in full. Until the title of the Product has been transferred to the Buyer, Buyer shall be obligated to take good care of the Product.
6.1 The Product shall in all material respects comply with the specifications given in the official product information that the Seller supplies for the Product unless otherwise has been agreed upon in writing between the Parties.
7.1 Delivery shall be made Ex Works the Seller’s premises (North Billerica, Massachusetts 01862, USA), unless otherwise agreed in writing between the Trade terms shall be interpreted in accordance with the INCOTERMS in force at the formation of the Agreement.
7.2 If the price disclosed in the Agreement entails that the Seller shall wholly or partly be responsible for freighting costs, the Seller shall be entitled to choose the mode of transportation.
7.3 Any time of delivery stated by the Seller is the Seller’s best estimate. If the Seller finds that it will not be able to deliver the Products at the agreed time for delivery or if delay on its part seems likely, it shall forthwith notify the Buyer thereof in writing, stating the reason for the delay and if possible the time when delivery can be expected. The Seller may make partial shipments at Seller’s sole discretion.
7.4 If delay in delivery is caused by transport delays beyond the Seller’s control, or because of any circumstance encompassed by Article 15, or by an act or omission on the part of the Buyer, the delivery time shall be extended by a period, given all of the circumstances in the case, that may be deemed appropriate by the Seller. This applies regardless of whether the reason for the delay occurs before or after the expiry of the agreed delivery time.
7.5 The Seller’s liability in the event of delay is limited to verified material direct losses (all kind of indirect and consequential losses and damages excluded) and shall not, in any event, exceed 5 % of the invoiced value of the delayed delivery.
7.6 If the delivery of Products is subject to the granting of an export or import license by a government and/or any governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import control laws or regulations, the Seller may suspend its obligations and the Buyer’s rights regarding such delivery until such license is granted or for the duration of such restriction and/or prohibition, respectively, and the Seller may rescind the transaction without incurring any liability towards the Buyer.
7.7 Return of a Seller’s Product should be made in accordance with Seller’s Return Merchandise Authorization procedures and is subject to a restocking fees in the amount of fifteen percent (15%) of the invoiced price of the returned Product, except for the return made under Clauses 11 and 12.
8. Buyer’s Obligation to Take Delivery
8.1 Should the Buyer fail to take delivery of the Product at the appointed time, it is nevertheless obliged to make each payment as if delivery of the Product in question had been made. If the Buyer, regardless of grounds, fails to take delivery of the Product at the appointed time, the Seller shall be entitled, by written notification to the Buyer, to cancel the Agreement in respect of such outstanding part of the Product that, due to the Buyer’s failure, has not been received, and receive compensation from the Buyer for any and all damage incurred due to the Buyer’s failure to fulfil his obligations.
9. Inspection and Complaints
9.1 The Buyer shall as soon as possible after receipt of the Product examine the Product for visible defects, ensure that the number of boxes and pallets correspond with the number given in the delivery notes and that the quantities delivered correspond with the quantities given on the boxes and that the Product overall complies with the Seller’s Order Confirmation and with what is stated in the Agreement.
9.2 Complaint regarding lack of conformity of delivered Products that the Buyer has noticed or should have noticed upon the required receipt inspection, shall be lodged within 20 days from the date at which the Products were delivered. Such written complaint shall contain a description of how the lack of conformity manifests itself. If there is reason to believe that the lack of conformity may cause damage, such complaint shall be given immediately. Complaint regarding such a fault as could not have been discovered at such a receipt inspection shall be made directly after the fault is noticed or should have been noticed by the Buyer, however, at the latest within 12 months after delivery. Failing to do so causes the Buyer to lose the rights to complain due to lack of conformity of the Products.
10. Buyer’s Handling of the Product and Resale Restrictions
10.1 The Buyer undertakes to transport, handle, store and repair the Product with proper care and always in accordance with professional standards and the instructions of the Seller. The Buyer undertakes not to change the Products, remove or change any trademarks, names or any other markings concerning the Products or alter the Product’s packaging or repack the Products in non-approved non-Seller packaging.
10.2 If applicable, the Buyer undertakes to comply with all the instructions and information about the Products given by the Seller when marketing and selling the Products, educating its personnel and instructing and educating its customers about the handling and use of the Products.
10.3 If applicable, the Buyer undertakes, when marketing and selling the Product, not to give any information about the Product or make any warranties or representations as to the Product, its nature or use that is contrary to or goes further or beyond the instructions, information, warranties, or representations given by the Seller. The same applies when the buyer is educating its customers about the use of the Product. The Buyer undertakes to indemnify and hold the Seller harmless from any and all damages in the event the Seller suffers damage as a result of breach of these undertakings.
10.4 The Buyer shall comply with all applicable national and/or international laws, rules and regulations concerning medical devices, including but not limited to the Medical Devices Directive (MDD 93/42/EEC), the respective guidelines of the European Commission, the United States Federal Food, Drug, and Cosmetic Act (FDCA). Notwithstanding all other provisions in the Medical Devices Directive or FDCA, the Buyer is obliged to inform the Seller immediately in case of an incident with one of the Products or if it has indications that a Product is not safe.
10.5 According to the requirements of Annex II of The Medical Device Directive and/or the relevant provisions in FDCA, the Buyer shall maintain adequate records concerning product traceability as the U.S. Food and Drug Administration (“FDA”) regulations from time to time require and make such records available to the Seller as and when reasonably required. The Buyer agrees to comply with the rules of these directives and accepts them as legally binding conditions for all deliveries of Products. The Buyer’s traceability records shall be complete and accurate and trace the Seller’s Products to final point of use by product code, lot number, serial number, the name and address of its customers, the name, quantity and lot description of each Product sold, rented or leased, the date provided to their customer, the Product model and serial number provide to each patient, the maintenance and repairs that have been performed on each Product, the location of the Product, whether the Product has been permanently removed from service (including model and serial number), any complaints that Buyer receives regarding the Products, and the control or other lot identification number used in order to enable the Seller to comply with FDA regulations. In the event that a Product is resold (a “Resold Product”), it is the Buyer’s responsibilities to maintain a complete and accurate record of such Resold Product. The Buyer agrees to comply with the rules of these directives and laws and accepts them as legally binding conditions for all deliveries of Products. The Buyer’s traceability records shall be complete and accurate and trace the Seller’s Products to final point of use by
10.6 The Buyer may not remove references to a manufacturer or other references or instructions for use or serial numbers or distribute Products without such references and instructions for use.
10.7 In many incidents, Products that are manufactured for sale in a country, region, or territory, are approved only for sale in such country, region, or territory and under prescriptions from physician. Accordingly, resales of the Products outside of such country, region, or territory is strictly prohibited. The Buyer acknowledges and agrees (a) not to sell, resell, offer for sales, export to, or import from any region outside the Buyer’s country, region or territory, (b) not to sell or resell to reseller(s) without Seller’s written consent, (c) not to sell, resell, offer for sales, export, or import on any third-party e-commerce platforms, including without limitation, Amazon.com or Walmart.com, (d) not to sell or knowingly with reasonable due diligence resell to end users without physician’s prescription, (e) to comply with Seller’s MAP policy, and (f) to provide all post-sales services to end users and provide the Seller with the contact information of the Buyer’s post-sales services. In the event that the Buyer sells or contemplates to sell Products through the e-commerce (except through a third party e-commerce platform, which is strictly prohibited), the Buyer shall conduct such e-commerce business under the name, to which the Buyer purchases product from the Seller. If the Buyer conducts business through a pseudo name, the Buyer shall inform the Seller of such pseudo name and notify the Seller prior to change to a new pseudo name. For purposes of this Agreement, customers will be deemed to be “within the Territory” only if (i) the customer’s or potential customer’s billing address and the shipping location are located in the Territory and (ii) the Buyer has no reason to suspect or believe that such customer or potential customer intends to ship or re-sell the Product outside of the Territory.
10.8 The Buyer shall not market or offer for sale the Products or fulfill Buyer’s sales of Products on or through any website other than the website(s) expressly approved by the Seller (hereinafter, individually or collectively, the Buyer’s “Website”). Selling the Products on or through third-party marketplace sites (e.g., eBay, Amazon, Walmart Marketplace), drop-ship accounts (e.g., Rakuten.com, Newegg.com, Overstock.com, Jet.com), classified sites (e.g., Craigslist.org, Facebook Marketplace), or direct messages on social media or Internet forums is strictly prohibited. Consent to market for sale and sell the Products on the Website is conditioned upon Buyer’s adherence to the following terms and conditions:
10.8.1 The Buyer’s Website must be confined to the specific approved domain name. The Buyer may not use any the Trademarks, nor any misspellings of any the Trademarks, in the construction of Buyer’s domain name, including top-level domains and sub-domains, URLs for any part of Buyer’s Website, or any part of metadata in Buyer’s Website.
10.8.2 The Buyer’s Website must not give the appearance that it is operated by the Seller.
10.8.3 The Buyer may not ship any Products to customers outside the Territory. Accordingly, the Buyer will prominently display at the Website a statement similar to the following: “We ship Breas products only to customers within the [name of the Territory].”
10.8.4 The Buyer may not sell online anonymously. The Buyer’s Website must list the Buyer’s full legal name, mailing address, telephone number, and email address so that the Buyer’s customers may contact the Buyer directly for training and service. The Website must clearly indicate the physical location(s) where customers can obtain training and service related to the Products from the Buyer.
10.8.5 The following copyright attribution must appear on any page of the Buyer’s Website where the Seller’s graphic material appears: Breas’s logo, text, graphics, and photo images are the property of Breas and are used with permission.
10.8.6 The Buyer will cooperate in demonstrating and/or providing access to, and copies of, all web pages that comprise Buyer’s Website. Because trust is an important part of the Seller’s and its Affiliates’ brand, it is important that all information about the Products is truthful and accurate. Because of that, the Seller must approve all internet-based advertising and promotional campaigns involving the Products before they go live, as well as any changes to existing campaigns. The Buyer shall only use the Seller-provided intellectual property and marketing materials that have been authorized in writing by the Seller. This includes, but is not limited to, websites, search terms, images, graphics, photographs, copies, text, manuals, literature, video, specifications, and logos.
10.8.8 In sales of Products from the Website, the Buyer acknowledges and agrees that the Buyer is responsible for all fulfillment to the Buyer’s individual customers, any applicable taxes associated with such individuals’ purchases of Products, and any returns of Products.
10.8.9 All Product images and descriptions on the Website must be kept up to date. The Buyer must remove outdated packaging or Products that the Buyer does not hold in inventory.
10.9 The Buyer may not make any changes, alterations, or improvements of the Products, except with the prior written approval of the Seller.
10.10 The Buyer agrees to indemnify, defend and hold the Seller and its parent, subsidiary, or affiliated companies (“Affiliates”) harmless from and against any expenses incurred by or claims made against the Seller arising out of or relating to any material breach of the terms and conditions of this Agreement and/or any negligent actions or willful conducts of the Buyer, including but not limited to the marketing, distribution, maintenance, repair or alteration of any Product, or the improper assembly or incorporation of the Product into any other device.
11. Limited Warranty (Liability for Defects)
11.1 The Seller warrants, pursuant to Articles 11.2-11.4 below, that the Products will be free from defects in material, construction, and design and that the Products will in all material aspects comply with the Seller’s specifications for the warranty period applicable to such Product. In case of non-conformity, the Seller undertakes to repair or replace any defective Products and to render necessary Product Related Services at no charge excluding the return freight cost to the Seller.
11.2 The Seller’s warranty according to Article 11.1 above is conditioned on that the Product has been transported and handled with proper care, and stored and used in accordance with the Seller’s instruction for Products, that the Product has been subject to regular maintenance and service, that replacement and repair has been performed according to the Seller’s instructions and that the Product is returned in the Seller’s packaging in case return to Seller is necessary.
11.3 The Seller’s warranty does not apply to any Products that have been specifically manufactured or modified at the request of the Buyer or altered by the Buyer or a third party, nor does it apply to defects caused by abnormal use of the Product or circumstances that have arisen after the risk for the Product has been transferred to the Buyer.
11.4 The Seller disclaims all liability for lost earnings, income, or profits and all other direct or indirect, incidental, or consequential damages. The Seller will not be obligated beyond the replacement of Products or Product Related Services as are determined by the Seller to be defective. Whether the Products are manufactured by the Seller or by another, such replacement shall be the Purchaser’s sole and exclusive remedy for breach of this limited warranty and neither the Seller nor the manufacturer (if other than Seller) shall be subject to any other or further liability and no claim for consequential or incidental damages will be allowed.
11.4 Except as specifically authorized by Seller, the Limited Warranty is not transferrable.
11.5 EXCEPT FOR THE WARRANTY DESCRIBED IN THIS ARTICLE 11, THE SELLER MAKES NO WARRANTY AND THEREFORE EXPLICITLY DISCLAIMS ANY WARRANTY WITH RESPECT TO THE PRODUCT OR PRODUCT RELATED SERVICES, WRITTEN OR ORAL, NEITHER EXPRESS NOR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF QUALITY, PERFORMANCE AND DESIGN, AND ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
12.1 The Buyer shall cooperate with the Seller in effecting field corrections of systematic defects, removals, or upgrades (“Recall”) of the Product at the direction of the Seller. The Seller is responsible for Recalls and shall determine whether the defect is systematic and when a Recall shall be performed. In the event that a Recall is deemed to be necessary, the Seller shall provide all written instructions to the Buyer as to the correct management of the affected Products.
12.2 Defects, removals, or upgrades that have been specifically defined as Recalls by the Seller shall be remedied by the Buyer at its business location according to the instructions given by the Seller. If necessary and at the choice of the Seller, the Product or parts of the Product may instead be transported from the Buyer to the Seller for remedy. In case of remedy at Buyers location, the Seller shall without any costs for the Buyer deliver necessary new components, software that replaces the item. The Seller shall further at cost price compensate the Buyer for the necessary repair or replacement work performed by it at its location. If the Seller instructs the Buyer to return the Products to the Seller, the Seller shall be liable for the costs for repair performed by the Seller as well as the cost of transportation of the Products from the Buyer to the Seller and back to the Buyer. The Buyer shall, if required, comply with the country’s regulations regarding such actions and assist the Seller in notifying the appropriate regulatory authorities.
12.3 The Seller’s liability in the event of a Product Recall is limited to the above explicitly stated costs and the Seller has no liability for any costs or damage incurred by the Buyer or its customers that go beyond the costs specified above.
13. Product complaints
13.1 If the Buyer has or receives a Product complaint, the complaint shall immediately be directed to the Seller. The Seller is responsible for investigating complaints regarding the provided Products. The Buyer shall not take any action in respect of or compromise such complaint without the prior written consent of the Seller. The Buyer is responsible to support the Seller on complaint investigations, including gathering circumstantial data from the customer, service reports and filling in an incident report if requested by the Seller such that the Seller can meet requirements of reporting incidents to competent authorities.
14. Liability Limitation
14.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, IN NO EVENT SHALL THE SELLER, ITS AFFILIATES, SUPPLIERS AND SUBCONTRACTORS BE LIABLE TO BUYER, OR ANY OF ITS CUSTOMERS, OR END USERS OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, OR REVENUE, GOODWILL LOSS OF USE, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, DOWNTIME COSTS, COST OF DELAYS, OR FOR ANY PENALTIES, WHETHER ANY SUCH CLAIM FOR THE SAME IS BASED ON CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION OR OTHERWISE EVEN IF THE SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM THIS AGREEMENT, THE PRODUCTS, THE PRODUCT RELATED SERVICES, MARKETING MATERIAL OR ANY OTHER ITEMS FURNISHED BY THE SELLER UNDER THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE SELLER’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT FOR ANY CLAIMS WHETHER IN CONTRACT, WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY, INDEMNIFICATION OR OTHERWISE, OR FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH THIS AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, OR FROM ANY DESIGN, SALE, INSTALLATION, OPERATION OR USE OF THE PRODUCTS UNDER THIS AGREEMENT, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE PAID TO THE SELLER BY BUYER FOR THE SPECIFIC PRODUCTS OR PART THEREOF OR PRODUCT-RELATED SERVICES GIVING RISE TO THE CLAIM.
15. Intellectual Property Rights
15.1 “Intellectual Property Rights” shall means patents (including utility models), design patents, design rights (whether or not capable of registration), copyrights, copyright related rights, moral rights, rights in databases, trademarks, trade secrets, know-how, trade names, rights under marketing law and passing off, topography rights, and all other intellectual property rights; in all cases whether or not registered or registerable, and applications for any of the foregoing respectively, and all rights to apply for the same, and all rights and forms of protection of a similar nature or having a similar effect to any of these anywhere in the world.
15.2 The Buyer agrees that it does not have any property interest in the Seller’s and its Affiliates’ intellectual property, including, but not limited to, their trademarks, trade names, copyrights, trade secrets, patents, know-how, or other proprietary rights of any nature whatsoever, whether or not incorporated in the Products, and the Buyer will not attempt to reverse engineer any such Products or disclose or use any such intellectual property without the Seller’s prior written consent. Any technical or other information the Seller provides to the Buyer in connection with the Agreement shall remain the property of the Seller and its Affiliates and shall be kept confidential by the Buyer and used only to perform the Buyer’s obligations under the Agreement. Such information may include cost and pricing information, know-how and service manuals.
15.3 The Products may be the object of Intellectual Property Rights. Beside the distribution, marketing, and sale of the Products according to the terms of this Agreement by the Buyer, this Agreement entails no license to or transfer of ownership of any Intellectual Property Rights of the Seller to the Buyer. Unless otherwise agreed to in writing signed by the Seller’s or the relevant Affiliate’s duly authorized representative, all right, title and interest in any inventions, developments, improvements, or modifications of the Products made by the Seller or Buyer as a result of this Agreement shall exclusively remain with the Seller and its Affiliates. The Buyer also undertakes to refrain from applying for patent, industrial design, or similar right with any of the Products as the object of such right.
15.4 The Products are marked with trademarks of the Seller and its Affiliates. This Agreement does not grant either party the right to use the other party’s or their Affiliates’ trademarks except as set out under this Clause 15. Subject to the Seller’s and its Affiliates’ trademark policies, which may change from time to time in the Seller’s and/or its Affiliates’ sole discretion, and the terms and conditions of this Agreement, the Seller hereby grants to Buyer a limited, revocable, non-exclusive, non-transferable and non-sublicensable license to use the Seller’s and its Affiliates’ trademarks for the Products (the “Trademarks”) during the Term and solely on or in connection with the marketing for sale, sale, renting or leasing of the Products in the Territory in accordance with the terms and conditions of this Agreement. The Buyer will promptly discontinue the display or use of any of the Trademark or change the manner in which a Trademark is displayed or used with regard to the Products when requested by the Seller. Other than the express licenses granted by this Agreement, the Seller grants no right or license to the Buyer, by implication, estoppel or otherwise, to the Products or any intellectual property rights of the Seller. Any such use of the Trademarks by the Buyer in connection with its marketing for sale, sale, lease, or rental of the Products is at the Buyer’s sole cost and expense.
15.5 The Buyer will not: (i) take any action that may interfere with any of the Seller’s and its Affiliates’ rights in or to the Seller’s and its Affiliates’ intellectual property rights, including the Seller’s ownership or exercise thereof; (ii) challenge any right, title or interest of the Seller in or to the Seller’s and its Affiliates’ intellectual property rights; (iii) make any claim or take any action adverse to the Seller’s and its Affiliates’ ownership of the Seller’s and its Affiliates’ intellectual property rights; (iv) register or apply for registrations, anywhere in the world, for the Trademarks or any other trademark that is similar to the Trademarks or that incorporates the Trademarks in whole or in confusingly similar part; (v) use any mark, anywhere, that is confusingly similar to the Trademarks; (vi) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Products purchased under this Agreement or any Trademark; (vii) misappropriate any Trademarks nor any misspellings of any Trademarks for use as a domain name without prior written consent from the Seller; (viii) alter, obscure or remove any Trademarks or trademark or copyright notices or any other proprietary rights notices placed on the Products, marketing materials or other materials that the Seller may provide; or (ix) place or use the Trademarks: (a) on, or directly or indirectly in connection with, any place of business or other facility; or (b) on, or directly or indirectly in connection with, signs, letterheads, advertising or other promotional materials, or otherwise, in a manner that may indicate that Buyer is anything other than a Buyer of Products. All goodwill arising from Buyer’s use of the Trademarks shall inure solely to the benefit of the Seller.
15.6 The Buyer shall without delay inform the Seller of all infringements or suspected infringements of the Seller’s and its Affiliates’ Intellectual Property Rights as regards to the Products in the Territory, or if infringements of Intellectual Property Rights belonging to third parties is said to take place by the Buyers sale of the Products. If the Seller’s Products is held to infringe a United States patent in effect as of the date of this Agreement (other than any infringement resulting from the Seller’s compliance with Buyer’s designs, specifications or instructions or from the use of the Products in combination with other materials or the operation of any process), then the Seller may at its option procure for the Buyer the right to use the Products, modify or replace it with non-infringing Products; refund the purchase price allocable to the infringing Products, or settle or otherwise terminate said actions on behalf of Buyer. The foregoing is the Seller’s entire liability and Buyer’s sole remedy for patent infringements of the Products. The Buyer shall defend, indemnify, and hold the Seller harmless from all expenses, losses and other damages resulting from any actual or alleged infringement of intellectual property rights arising from the Seller’s compliance with Buyer’s designs, specifications or instructions, from the use of the Products in combination with other materials, or from the operation of any process.
16. Force Majeure
16.1 If one of the Parties is prevented from fulfilling its obligations due to circumstances outside its control, such as epidemic, pandemic, labor dispute, stroke of lightning, fire, storm, flood, earthquake, war, terrorist actions, mobilization or extensive call-ups, requisition, confiscation, currency restrictions, directions from the authorities, insurgencies and riots, restrictions concerning motive force, general scarcities in transportation, goods and energy, measures taken by state or government authorities or errors or delayed deliveries from contractors or subcontractors, this shall constitute reason for exemption, which entails the right to postpone meeting the obligations for as long as the hindrance exists, and relief from fines and other penalties of law. The Party shall as soon as possible inform the opposite Party if such circumstances arise. If the hindrance endures at least 3 months, the Party has the right to terminate the Agreement in writing without liability to pay compensation.
17. Survival of Obligations
17.1 All provisions of this Agreement which are expressly or by implication intended to survive and apply following expiry or termination of this Agreement, including but not limited to Clause 11 (Limited Warranty), Clause 14 (Liability Limitation), Clause 15 (Intellectual Property Rights), Clause 19 (Confidentiality), and Clause 20 (Applicable Law and Disputes), shall survive and shall continue in full force and effect notwithstanding such expiry or termination.
18.1 The Seller shall have the right to engage a subcontractor to fulfil its obligations under the Agreement. Should the Seller engage a subcontractor the Seller shall be liable for such sub-contractors as for its own obligations.
19.1 Each Party pledges himself for the duration of the Agreement and thereafter not to, without the other Party’s written consent, disclose any information to a third party (whether oral or written or in visual, electronic or tangible form) regarding or otherwise relating to the other Party’s affairs or other business matters if it may be deemed as business or trade secrets or otherwise be used as such information for any other purpose than the Party’s performance of its obligations according to the Agreement. Any information which the Party has stated is confidential shall be considered as business or trade secrets.
19.2 Such confidentiality shall not apply to information which the Party can show with written document became known to it otherwise than through the Parties’ business relation or which is publicly known. Nor shall such confidentiality apply with respect to any required disclosure of such information by law or any governmental or other regulatory authority.
19.3 A Party shall return any confidential information upon request by the other Party.
19.4 Any design, reports, plans, drawings, standards, specifications, or other information disclosed to the Buyer by the Seller, including pricing and the terms of this Agreement, (the “Seller Documents”) were developed at the Seller’s expense or are confidential business information and shall remain the Seller’s exclusive property. Without the express prior written consent of the Seller, the Buyer shall not copy or disclose the Seller Documents to any third party, and shall not use them for any purpose other than to fulfill the obligations contemplated in this Agreement. The Seller Documents are not suitable for use on any other agreement or project and any reuse of the Seller Documents without the express written consent of the Seller will be at the sole risk of the Buyer, and the Buyer shall indemnify, defend, and hold the Seller harmless from any and all claims arising from the Buyer’s reuse of the Seller Documents. Upon the Seller’s request at any time, the Buyer shall promptly return all Seller Documents.
20. Applicable Law and Disputes
20.1 All disputes regarding the interpretation or application of this Agreement as well as any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflict of laws principles providing for the application of the laws of any other jurisdiction.
20.2 Any suit, action or proceeding by any Party that arises under or in any way relates to this Agreement or the transactions contemplated hereby may be brought only in the state courts of the Commonwealth of Massachusetts or the United States District Court for the District of Massachusetts, Boston Division, and shall be tried only by a court and not by a jury. Each party hereby consents to the jurisdiction of such courts to decide any and all such suits, actions and proceedings and to such venue, and they hereby expressly waive any right to a trial by jury in any and all such suits, actions and proceedings.
20.3 The Seller, however, shall have the right to apply to a general court to obtain payment for an undisputed and matured claim.
21.1 If any provision of this Agreement is held to be invalid or unenforceable by any competent court, authority or arbitral tribunal, the remainder of that provision and all other provisions will remain valid and enforceable to the fullest extent permitted by applicable law, and the Parties shall negotiate any necessary changes to this Agreement to maintain the spirit of this Agreement and the framework, structure and operation of the transactions contemplated by this Agreement.
21.2 A Party’s waiver of any of its rights or remedies under this Agreement must be in writing and duly executed by it. No single or partial waiver of any such right or remedy shall preclude any other or further exercise of that or any other such right or remedy.
21.3 This General Terms and Conditions for Sales and the appendix expressed referred to herein sets forth the entire, final and exclusive agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous statements, agreements, understandings, communications, representations and/or promises, whether in writing or oral, between the Parties relating thereto; unless this General Terms and Conditions for Sales is expressed incorporated in an agreement, in which event, this General Terms and Conditions for Sales and such agreement shall constitute the entire, final and exclusive agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous statements, agreements, understandings, communications, representations and/or promises, whether in writing or oral, between the Parties relating thereto.
Ref. CON-202102-003/ver. 0.2