BG-Graspointner USA Inc. Terms and Conditions (USA) TERMS AND CONDITIONS FOR THE SALE OF GOODS (“Conditions”)

<p><strong>1.1 Introduction/definitions</strong></p><p>These conditions shall form part of every contract of sale entered into by BG-Graspointner USA Inc. (“the Company”) to the exclusion of all other terms and conditions including any which the Customer may purport to impose. They may not be varied except in writing signed by an officer of the Company. No contract comes into force until the Company, having received the Customer’s purchase order, issues a written acceptance to the Customer pursuant to these Conditions of Sale.</p><p> </p><p>Contract: any contract, agreement, or other document between the Company and the Customer for the sale and purchase of Goods and Services, incorporating these conditions.</p><p>Delivery Point: the place where delivery of the Goods is to take place under condition 4.</p><p>Goods: any goods and services agreed in the Contract to be supplied to the Customer by the Company (including any part or parts of them).</p><p>Incoterms: the international rules for the Interpretation of Trade Terms of the International Chamber of Commerce as in force at the date when the Contract is made.</p><p> </p><p>1.2 A reference to any law is a reference to it as it is in force for the time of any transaction with the Company including any amendment, extension, application or revision and includes any subordinate legislation for the time being in force made under it.</p><p> </p><p>1.3 Words in the singular include the plural and in the plural include the singular.</p><p> </p><p>1.4 A reference to one gender includes a reference to the other gender.</p><p> </p><p>1.5 Condition headings do not affect the interpretation of these conditions.</p><p> </p><p> </p><p><strong>2. Application of terms</strong></p><p>2.1 Subject to any variation under condition 2.3 the Contract shall be subject to these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to impose under any purchase order, confirmation of order, specification or other document).</p><p> </p><p>2.2 No terms or conditions endorsed on, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.</p><p> </p><p>2.3 These conditions apply to all the Company’s sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by an authorized representative of the Company. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract between the parties. Nothing in this condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.</p><p> </p><p>2.4 Each order or acceptance of a quotation for Goods by the Customer from the Company shall be deemed to be an offer by the Customer to buy Goods subject to these conditions.</p><p> </p><p>2.5 No order placed by the Customer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Customer.</p><p> </p><p>2.6 The Customer shall ensure that the terms of its order and any applicable specification are complete and accurate.</p><p> </p><p>2.7 Any quotation given shall not be binding on the Company until the Company delivers a written acknowledgement of order to the Customer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.</p><p> </p><p> </p><p><strong>3. Description</strong></p><p>3.1 The quantity and description of the Goods shall be as set out in the Company’s quotation or acknowledgement of order.</p><p>3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.</p><p> </p><p> </p><p><strong>4. Delivery</strong></p><p>4.1 Delivery of the Goods shall be made by the Customer collecting the Goods at the Company’s premises (also known as ex factory) at any time after the Company has notified the Customer that the Goods are ready for collection or, if some other place for delivery is agreed by the Company, by the Company delivering the Goods to that place.</p><p> </p><p>4.2 Delivery charges, if applicable, will be stated in the Contract.</p><p> </p><p>4.3 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence except in writing by the Company. If no dates are so specified, delivery shall be within a reasonable time.</p><p> </p><p>4.4 Subject to the other provisions of these Conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 180 days.</p><p> </p><p>4.5 If for any reason the Customer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:</p><p>(a) all risks as to the Goods shall pass to the Customer (including for loss or damage caused by the Company’s negligence);</p><p>(b) the Goods shall be deemed to have been delivered; and</p><p>(c) the Company may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).</p><p> </p><p>4.6 The Customer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for delivery reception of the Goods.</p><p> </p><p>4.7 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.</p><p> </p><p>4.8 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.</p><p> </p><p> </p><p><strong>5. Non-delivery</strong></p><p>5.1 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.</p><p> </p><p>5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Customer gives written notice to the Company of the non-delivery within 3 days of the date when the Goods would in the ordinary course of events have been received.</p><p> </p><p>5.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice issued for such Goods.</p><p> </p><p> </p><p><strong>6. Risk/title</strong></p><p>6.1 The Goods are at the risk of the Customer from the time of delivery pursuant to paragraph 4 hereof.</p><p> </p><p>6.2 Ownership of the Goods as opposed to risk of loss shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:</p><p>(a) the Goods; and</p><p>(b) all other sums which are or which become due to the Company from the Customer on any account.</p><p> </p><p>6.3 Until ownership of the Goods has passed to the Customer, the Customer shall:</p><p>(a) hold the Goods on a fiduciary basis as the Company’s Bailee;</p><p>(b) store the Goods (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Company’s property;</p><p>(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and</p><p>(d) maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Customer shall produce the policy of insurance to the Company.</p><p> </p><p>6.4 The Customer may resell the Goods before Ownership has passed to it solely on the following conditions:</p><p>(a) any sale shall be effected in the ordinary course of the Customer’s business at fair market value; and</p><p>(b) any such sale shall be a sale of the Company’s property on the Customer’s own behalf and the Customer shall deal as principal when making such a sale.</p><p> </p><p>6.5 The Customer’s right to possession of the Goods shall terminate upon written notice, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) seeks reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for or has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.</p><p> </p><p>6.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.</p><p> </p><p>6.7 The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.</p><p> </p><p>6.8 Where the Company is unable to determine whether any Goods are the goods in respect of which the Customer’s right to possession has terminated, the Customer shall be deemed to have sold all goods of the kind sold by the Company to the Customer in the order in which they were invoiced to the Customer.</p><p> </p><p>6.9 On termination of the Contract, howsoever caused, the Company’s (but not the Customer’s) rights contained in this condition 6 shall remain in effect.</p><p> </p><p> </p><p><strong>7. Price</strong></p><p>7.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Company’s price list published on the date of delivery or deemed delivery.</p><p> </p><p>7.2 The price for the Goods shall be exclusive of any value added tax and any costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Customer shall pay in addition when it is due to pay for the Goods.</p><p> </p><p>7.3 The Company reserves the right, by giving written notice to the Customer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.</p><p> </p><p>7.4 The cost of pallets and returnable containers will be charged to the Customer in addition to the price of the Goods, but full credit will be given to the Customer provided they are returned undamaged to the Company before the due payment date.</p><p> </p><p> </p><p><strong>8. Payment</strong></p><p>8.1 The Customer shall pay the price of the Goods (less any discount to which the Customer is entitled, but without any other deduction) within 30 days (unless otherwise agreed in writing by the Company) of the date of the Company’s invoice, and the Company shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Customer plus a credit extension fee as set forth in 8.6.</p><p> </p><p>8.2 Time for payment shall be of the essence.</p><p> </p><p>8.3 No payment shall be deemed to have been received until the Company has received cleared funds.</p><p> </p><p>8.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision and payable in US dollars.</p><p> </p><p>8.5 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.</p><p> </p><p>8.6 If the Customer fails to pay the Company any sum due pursuant to the Contract, the Customer shall be liable to pay interest for late payment of 1.6% month equal to 19.2% year; however, in no event shall the interest rate exceed any statutory maximum rate.</p><p> </p><p> </p><p><strong>9. Assignment</strong></p><p>9.1 The Company may assign the Contract or any part of it to any person, firm or company.</p><p>9.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.</p><p> </p><p>10. Force majeure</p><p>The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 180 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.</p><p> </p><p> </p><p><strong>11. General</strong></p><p>11.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.</p><p> </p><p>11.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.</p><p> </p><p>11.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.</p><p> </p><p>11.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.</p><p> </p><p>11.5 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of New York.</p><p> </p><p> </p><p><strong>12. Communications</strong></p><p>12.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax:</p><p>(a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Customer by the Company; or</p><p>(b) (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Customer.</p><p> </p><p>12.2 Communications shall be deemed to have been received:</p><p>(a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or</p><p>(b) if delivered by hand, on the day of delivery; or</p><p>(c) if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.</p><p> </p><p> </p><p><strong>13. The Company (Hereafter, “BG-Graspointner”) hereby confirms a one-year limited warranty (one year from the date of purchase) for BG-Graspointner products, provided the following:</strong></p><p> </p><p>I. BG-Graspointner products have been installed according to the instructions outlined in the BG-Graspointner Technical Installation brochure and other BG-Graspointner documentation you have received.</p><p> </p><p>II. Traffic is in compliance with load classifications as described in the BG-Graspointner documentation.</p><p> </p><p>The limited warranty of 12 months covers BG-Graspointner products, and only BG- Graspointner products. No other products which are not produced by BG-Graspointner will be covered by the limited warranty.</p><p> </p><p>In the case of any alleged defectiveness written notice must be provided to BG-Graspointner within thirty (30) days of discovery of such alleged defectiveness. If such notice is not given Limited Warranty will be void as regards such alleged defects.</p><p> </p><p>After such written notice is properly given, BG-Graspointner has the right to inspect all alleged defects and decide at its sole discretion whether to repair or replace the product, the method of repair or replacement and the reasonable timeline of same. The determination of whether a product is defective or whether the alleged defect results from improper installation or use is at the sole discretion of BG-Graspointner.</p><p> </p><p>BG-Graspointner products that are deemed defective will be repaired or replaced at BG- Graspointner’s cost. BG-Graspointner’s coverage will be extended to the repaired or replaced product under the same terms and conditions as the original warranty. The limited warranty for repaired or replaced products will apply for one year from the date of repair or replacement.</p><p> </p><p>If the product cannot be repaired or replaced with a BG-Graspointner product, the warranty will remain limited only to BG-Graspointner products and accessories. Additionally, if repair or replacement with a BG-Graspointner product is impossible or impractical in view of the circumstances BG-Graspointner may decide, at its sole discretion, to provide a refund, in full or in part, as the case may be, of the purchase price in lieu of proceeding to a repair or replacement.</p><p> </p><p>BG-Graspointner’s liability under the present Limited Warranty is limited as set out in the Terms and Conditions of Sale.</p><p> </p><p>Nothing contained herein is intended to limit statutory warranties except to the extent permitted by applicable law.</p><p> </p><p> </p><p><strong>14. Arbitration</strong></p><p>14.1 This Agreement will be governed by the laws of New York State.</p><p> </p><p>14.2 All disputes of every kind and nature between and arising out of or in connection with this Agreement as to the negotiation, existence, construction, validity, interpretation or meaning, performance, nonperformance, enforcement, operation, breach, continuance thereof shall be submitted to final and binding arbitration pursuant to the then existing Commercial Arbitration Rules of the American Arbitration Association.</p><p> </p><p>14.3 Either party may demand such arbitration in writing within one (1) year after any dispute including termination arises, but not thereafter, which demand shall include a statement of the matter in controversy. The failure to request arbitration shall be deemed a waiver of any claim by the party failing to demand arbitration and shall foreclose any other litigation.</p><p> </p><p>14.4 Each party shall select a disinterested arbitrator from a list submitted by the American Arbitration Association, and the two selected shall select a third arbitrator from the list.</p><p> </p><p>14.5 Each party shall bear its own costs of arbitration.</p><p> </p><p>14.6 Arbitration hearings shall be conducted in Clinton County, New York and the award rendered by the arbitrators shall be final and binding on all parties to the proceeding, and judgment on such award may be entered by either party in the highest court, state or federal, in any jurisdiction.</p><p> </p><p>14.7 The parties agree that the provisions hereof shall be a complete defense to any suit, action, or proceeding instituted in any federal, state or local court or before any administrative tribunal with respect to any controversy or dispute arising during the period of this Agreement and which is arbitrable as herein set forth except as provided for in (i) below. The arbitration provisions hereof shall, with respect to such controversy or dispute, survive the termination of this Agreement.</p><p> </p><p>14.8 Nothing herein contained shall be deemed to give the arbitrators any authority, power, or right to alter, change, amend, modify, add to, or subtract from any of the provisions to this Agreement.</p><p> </p><p>14.9 The parties expressly agree that all trade secrets, proprietary or confidential information of either party shall be disclosed during arbitration only upon the issuance of appropriate protective orders limiting the disclosure or discoverability of such information outside of the arbitration of this Agreement.</p>