FPE Automation Terms and Conditions

FPE Automation, Inc.

Terms and Conditions

1. Application
1.1 These Terms and Conditions shall apply to, be incorporated in, and become a part of any orders and quotations (collectively “Order”) between Fluid Power Engineering Co. Inc, d/b/a FPE Automation, Inc., a Delaware Corporation (“Company”) and those persons or business entities to which the Company provides a product or service (“Purchaser”) (sometimes referred to individually, as a “Party” or collectively, as the “Parties”), for a designated time-period (the “Term”), for an agreed-upon price.

2. Pricing & Invoicing
2.1 The cost for the described goods is the Company’s quoted price stated in the Order, exclusive of any applicable value added and any or other applicable tax(es) unless otherwise stated. Prices quoted by the Company are valid for 30 days. The cost for the described goods will be reviewed annually and may be increased at the Company’s discretion. Additional products are subject to separate price quotes by a separate order and invoice; however, any additional order(s) shall be subject to these Terms and Conditions.

2.2 The Company reserves the right to make any changes in the specifications of the goods in order to conform with any applicable law or statutory requirement.

2.3 The Company will issue an invoice stating all sums due by Purchaser which invoice shall be payable thirty (30) days after the issue date unless Company agrees otherwise in writing. Payment received beyond thirty (30) days may result in additional fees. Any extension of a due date or other courtesies offered by the Company with respect to any invoice on one or more occasions shall not be deemed a waiver of any rights under the Order or these Terms and Conditions, or otherwise prejudice any right(s) or remedy which the Company has or may have under the Order, these Terms and Conditions or otherwise.

3. Intellectual Property, Confidentiality & Non-Disclosure

3.1 In using the purchased goods, the Purchaser shall comply with any technical limitations in any software that only allow the user to use it in certain ways, and Purchaser, and its employees, agents or representatives shall not: (i) work around any technical limitations in the software; (ii) reverse engineer, decompile or disassemble the software; (iii) use components of the software to run applications not running on the software; or, (iv) make copies of the software.
3.2 All data provided by the Company Database, and all Company patents, trademarks, service marks, registered designs, applications for any of the foregoing, trade and business names, unregistered trademarks and service marks, know-how, copyright, rights in designs, inventions, database rights, moral rights, rights under licenses and consents in relation to any such rights, and rights of the same or similar effect or nature in any part of the world, including, but not limited to all designs, drawings, specifications, instructions, manuals and other documents created, produced or commissioned by the Company relating to the its products shall be deemed intellectual property owned by the Company (the “Company’s IP Rights”).

3.3 Upon receipt of any notice regarding any potential inaccuracy with the purchased goods, the Company will undertake reasonable efforts to investigate any such potential or actual inaccuracy including by contacting Purchaser by e-mail, fax or telephone; and, if necessary, to rectify and correct any actual inaccuracy. PROVIDED HOWEVER, PURCHASER ACKNOWLEDGES THAT COMPANY IS NOT THE MANUFACTURER OF ANY PURCHASED PRODUCTS AND AGREES TO LOOK SOLELY TO THE MANUFACTURER FOR ANY CLAIMS RELATING TO DEFECTS OR DEFICIENCIES, AND PURCHASER AGREES TO BE BOUND SOLELY BY MANUFACTURER’S WARRANTY. PURCHASER FURTHER ACKNOWLEDGES THAT COMPANY HAS NO RESPONSIBILITY BEYOND THE MANUFACTURER’S EXPRESS WARRANTY FOR LOSSES OR CLAIMS OF ANY TYPE OR NATURE.

3.4 During the Term any Renewal Term(s), and for a period of five (5) years after termination of the Order, the Parties shall treat as strictly confidential, and shall not disclose in any manner, any information: (i) received or obtained as a result of the Order, including, but not limited to, information relating to the other Party’s business or operations; (ii) obtained or relating to the products purchased (including, but not limited to, the Company’s reports); and/or (iii) clearly identified by either Party as being confidential.

3.5 A Party may disclose otherwise confidential information if: (i) required by a court of competent jurisdiction (however, the disclosing Party shall make reasonable efforts to prevent such disclosure, including, promptly notifying the other Party of the compelled disclosure and the terms thereof and to allow the other Party to co-operate to minimize the extent of the disclosure of any information); (ii) required by any securities exchange or agency to which either Party, or any of its affiliates, is subject whether or not the requirement has the force of law; (iii) reasonably required by either Party to disclose in confidence to its shareholders, directors, auditors, bankers, financiers and legal, financial and other professional advisers; (iv) such information has come into the public domain through no fault of either Party; or (v) the other Party gives prior written approval to such disclosure (such approval not to be unreasonably withheld or delayed).

4. Representations and Warranties

4.1 Purchaser acknowledges and agrees that all descriptions, statements or particulars furnished in any Order, quotations, price lists, literature or any other document issued by the Company do not constitute any express or implied representation or warranty by the Company: (i) regarding the quality, performance, accuracy, completeness, suitability for purpose, dimension, workmanship, freedom from defects or any other attribute of the purchased products; and/or (ii) that the Company’s IP Rights do not infringe any third party’s intellectual property rights.

4.2 Purchaser is responsible for: (i) ensuring the accuracy of any information provided by it for inclusion in the Order (including any applicable specifications), and (ii) looking solely to the manufacturer of the products for any claims of defects or deficiencies.

5. Indemnification and Liability

5.1 Other than in connection with the Company’s own negligence or wrongful conduct, Purchaser hereby agrees to indemnify, defend, and hold the Company harmless from and against any and all liabilities, losses, claims, expenses, demands, complaints or actions of third parties (including employees of the Purchaser), including without limitation, reasonable legal fees and expenses, arising from or relating to the Order (including personal injury, death, and property damage). Purchaser further agrees to indemnify and hold the Company harmless against any and all liability, damage, loss, cost or expense, direct or indirect, arising from, or in connection with, Purchaser’s misuse of the Company’s IP Rights or its products.
5.2 The Company shall not be liable for any damages arising out of the defective functioning of any hardware, software, data files, registers or other matters used by the Company in connection with the performance of the Order. The Company’s liability for any other claim arising out of the Order shall be expressly limited to the amount equal to the payments received by the Company, if any, under any professional liability insurance taken out by the Company; and if no such payment is received by the Company, for any reason, the Company’s liability shall be limited to an amount equal to price of the product actually received, exclusive of VAT or other taxes, charged by the Company to, and paid by, the Purchaser.

6. Assignment

6.1 The Parties acknowledge that the Order shall be solely for the benefit of Purchaser as presently constituted, notwithstanding any sale, assignment or merger of the Purchaser. The Order is not transferable to any affiliates, subsidiaries or related individuals or entities. Any entities purchased by or merged with Purchaser shall not be entitled to the Terms of this Order. Purchaser is further expressly prohibited from assigning, sub-licensing or any other grant of any or all of Purchaser’s rights under the Order, directly or indirectly, including, but not limited to any assignment, sublicensing or grant of any right to any of Company’s competitors.

7. Termination

7.1 The Term of the Order shall commence as of the date specified in the Order (“Effective Date”) and, unless sooner terminated consistent with this section, shall continue in effect until the date referenced in the Order on which the Term ends. Any items that remain on a blanket order at the end of a blanket term will be shipped to the Purchaser unless otherwise agreed to by Company in writing, with full payment due within thirty (30) days.

7.2 Either Party may provide at least sixty (60) days written notice of termination prior to the commencement of any Renewal Term, in which case the Order shall be terminated as of the last day of the initial Term or the then current Renewal Term. In the event of a material breach during the initial Term or any Renewal Term, either Party may terminate the Order if the other Party fails to remedy such breach within 30 days of receiving a written notice of default (“Default”), in which case termination shall take effect three months after receipt by the defaulting Party of a termination notice. Purchaser shall pay all amounts in respect of the purchased products within 30 days of receipt by the Purchaser of an invoice from the Company setting out the amount due, together with supporting documentation, as may be appropriate.

7.3 Any Order or order shall be terminated automatically: (i) if the Purchaser is dissolved or goes into liquidation, (other than for the purposes of an amalgamation or re-organization not involving insolvency) or enters into any scheme of arrangement, receivership, or administration or commits any other act of insolvency or (ii) if Purchase becomes insolvent.

7.4 Any blanket Order shall be non-cancellable by Purchaser and all delivered goods on a blanket Order shall be non-returnable by Purchaser.

8. Non-Solicitation

8.1 During the Term of the Order and for one year after termination, the Purchaser will not, without the prior written consent of the Company, for its own behalf, or on behalf of any other person or entity, directly or indirectly, solicit or attempt to solicit, divert or hire away any person employed by the Company or any customer of the Company.

9. Exclusion of Warranty

9.1 Seller warrants that the goods supplied hereunder will conform to the description herein stated; that it will convey good title thereto, free of all liens of any kind whatever unknown to Purchaser. This is Company’s sole warranty with respect to the goods and products. COMPANY MAKES NO OTHER WARRANTY OF ANY KIND WHATEVER, EXPRESS OR IMPLIED; AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXPRESSLY DISCLAIMED BY COMPANY AND EXCLUDED FROM THIS AGREEMENT. PURCHASER FURTHER AGREES TO BE BOUND BY THE WARRANTY OF THE MANUFACTURER ONLY.

9.2 ANY non-standard products that are manufactured to meet specific Purchaser requirements are non-refundable.

9.3 A full safety assessment should be undertaken by Purchaser prior to installing and operating any purchased products that may cause bodily harm.

10. Miscellaneous

10.1 Choice of Law. Any Order to which these Terms and Conditions apply shall be governed exclusively by, and construed in accordance with, the laws of the State of Illinois and the courts of Cook County, Illinois, shall have exclusive jurisdiction to hear all disputes arising from the Order, these Terms and Conditions, or any agreement concluded in relation thereto.

10.2 Waiver.
(a) The failure to exercise or delay in exercising a right or remedy under these Terms and Conditions shall not constitute a waiver of the right or remedy, or a waiver of any other right or remedy, and no single or partial exercise of any right or remedy under a Order or these Terms and Conditions shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy; and

10.3 Severability.
If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and Conditions and the remainder of the provision(s) in question shall not be affected thereby.

10.4 Force Majeure.
The Company shall not be under any liability to the Purchaser in respect of any failure to carry out, or delay in carrying, out any of its obligations hereunder attributable to any cause of whatever nature outside its reasonable control. The Company shall notify the Purchaser promptly upon becoming aware of any such event.

10.5 Notices.
Any notice to be given by the Purchaser to the Company shall be in writing and shall be sent to the Company at 110 Gordon Street, Elk Grove Village, Illinois, 60007-1120, Attn: David Bardos and Attn: Lori Wolff, by recorded delivery post with a copy via email to David Bardos at david.bardos@fpeautomation.com and to Lori Wolff at lori.wolff@fpeautomation.com. Any notice to be given to the Purchaser shall be in writing sent to the Purchaser at the address stated in the Order by recorded delivery post. Any notice which is not returned to the sender as undelivered shall be deemed to have been given on the third day after the envelope containing same was so posted. Proof that the envelope containing notice or information was properly addressed and sent by recorded delivery post and that is has not been so returned to the sender shall be sufficient evidence that such notice has been duly given.

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