1. DEFINITIONS: In this Agreement, the following terms shall have the following meanings ascribed to them: “Seller” shall mean BCom Technology B.V. “Buyer” shall mean the person named as sold to customer in the Seller’s invoice “Credit Application” means the application for credit facilities submitted by Buyer to Seller “Goods” shall mean any articles, equipment or goods which Seller agrees to sell to Buyer; and “Service” means any service that Seller agrees to provide Buyer hereunder.
2. ACCEPTANCE AND CANCELLATION OF ORDERS: Each order for Goods can only be deemed accepted by Seller if signed in writing by a duly authorised representative of Seller except only that any shipment or advice of shipment in and of itself constitutes such acceptance. In the event of partial shipment of an order, the shipment and invoicing of part of an order does not of itself constitute acceptance of the unshipped part of the order. The Buyer shall be responsible to the Seller for ensuring the accuracy of any quantities, part numbers, descriptions, specifications, prices, etc. included in any order. Seller reserves the right to decline any order for any reason whatsoever in its sole and absolute discretion. Orders accepted by Seller may be cancelled by Buyer only upon written consent of Seller. In the event of cancellation or other withdrawal of an order for Goods by Buyer after such order has been accepted by Seller, without limiting other remedies which Seller may have as a result of such cancellation or other withdrawal, reasonable cancellation or restocking charges (which shall include all expenses then incurred, including but not limited to amounts payable to sub-contractors to cancel orders, amounts payable in respect of goods purchased for the order less disposal proceeds if Seller is obliged to sell at a loss including costs of selling, and other commitments made by Seller) shall be paid by Buyer to Seller. Special orders for items not normally stocked are noncancellable and non-refundable.
3. DELIVERY: (a) All prices quoted and goods shipped are Free Carrier (FCA) Seller’s facility unless otherwise stated on the face of the invoice, in which case delivery of the Goods shall be made by Buyer collecting the Goods at Seller’s premises at any time after Seller has notified Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by Seller, by Seller delivering the Goods to that place. Unless otherwise agreed by Seller in writing, Buyer shall pay all freight, handling, delivery and insurance charges for shipment of Goods. Choice of carrier and shipping method and route shall be at the election of Seller unless specifically designated by Buyer and agreed by Seller. Risk of damage to or loss of all Goods shall pass to Buyer upon leaving Seller’s facility. Any delivery dates stated are approximate only and not of any contractual effect. While Seller will use all reasonable endeavours to meet any scheduled delivery dates, it shall not be liable for any loss or damage incurred by Buyer as a result of any failure to deliver on any particular date. (b) Seller shall not be liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of Seller which causes shall include, without limitation, act of God, acts or omission of Buyer or civil or military authorities, fire, strikes, epidemics, quarantine restriction, flood, earthquakes, riot, war, delays in transportation or inability to obtain necessary labour, materials or supplies. (c) Seller shall be entitled to refuse or to delay shipments or refuse to perform services because of any failure by Buyer to pay promptly any payments due to Seller. Seller shall have the right to deliver all Goods covered hereby at one time or in portions from time to time within the time for delivery provided in such order. Seller shall also have the right to ship Goods from more than one location and split orders, whether or not they have been ordered by the Buyer under one order.
4. TERMS: (a) The price payable for Goods and Services is as set out in Seller’s quotation, order acknowledgement or invoice or, if none, Seller’s published price in effect at the time of shipment (in the case of Goods) and at the time of performance (in the case of Services). Payments must be made without any with-holdings or deductions e.g. by set-off or counterclaim, and must be made in the same currency as the invoice. (b) Unless otherwise specified by Seller in writing (refer to payment on face of Seller’s invoice) payment in full of net amount owing without offset or deduction is due 30 days from the date of invoice. If payment is not received within such 30-day period it will remain payable and, together with interest on late payment at the rate of 8% per annum of the unpaid balance from the date on which the sum was due to be paid up to the date it is actually paid to Seller, shall be paid by Buyer, such interest to run from day to day and to accrue after as well as before any judgement. (c) All cheques are accepted subject to collection and Buyer agrees to pay all costs of collection, including reasonable legal fees and costs. Any cheque received from Buyer may be applied by Seller against any obligation of Buyer to Seller under this agreement notwithstanding any statement appearing on or referring to such cheque. Acceptance of any partial payment shall only constitute a waiver of Seller’s right to payment in full of all amounts owing from Buyer to Seller if so agreed in writing by Seller. (d) Notwithstanding delivery and the passing of risk in the Goods, or any other provision of this Agreement, the property in the Goods shall not pass to Buyer until Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by Seller to Buyer for which payment is then due. Until such time as the property in the Goods passes to Buyer, Buyer shall hold the Goods as Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of Buyer and third parties and properly stored, protected and insured and identified as Seller’s property, except that Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured. Until such time as the property in the Goods passes to Buyer (and provided the Goods are still in existence and have not been resold), Seller shall be entitled at any time to require Buyer to deliver up the Goods to Seller and, if Buyer fails to do so forthwith, to enter upon the premises of Buyer or any third party where the Goods are stored and repossess the Goods. Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Seller, but if Buyer does so all moneys owing by Buyer to Seller shall (without prejudice to any right or remedy of Seller) forthwith become due and payable.
5. INSPECTION AND ACCEPTANCE OF GOODS: Buyer shall be responsible for conducting the final acceptance tests on the Goods if necessary, which tests shall be completed promptly and in no event later than 10 days after delivery. The Goods shall be deemed accepted by Buyer unless Buyer notifies Seller in writing of Buyer’s rejection of the Goods and the reason for such rejection within 10 days after delivery of the Goods to Buyer. Seller agrees that Seller shall elect to credit the account of Buyer or replace without charge to Buyer all Goods which at the time of delivery are not in accordance with their manufacturer’s specifications, but only if Buyer provides Seller timely rejection of the Goods in accordance with the terms hereof and returns such Goods to Seller’s facility within 30 days from date of delivery in original package and in good condition without their serial numbers or any part thereof altered, defaced, or removed, and accompanied by a specification in writing of the defects involved. Buyer shall notify Seller in each instance when Buyer intends to return Goods which Buyer believes are not in accordance with their manufacturer’s specifications, and Seller shall be entitled to examine such Goods at Buyer facilities prior to return. Final inspection and determination whether Goods are in accordance with their manufacturer’s specifications shall be made at Seller’s facility or may be based upon manufacturer’s actual test report. Other than the foregoing inspection and acceptance provisions all sales of Goods are final and Buyer shall only have a right to cancel Goods ordered prior to delivery of such Goods with the prior consent of Seller. Notwithstanding the foregoing in no event shall Seller issue or cause to be issued a Return Manufacturer’s Authorisation (RMA) beyond ninety (90) days from the date of delivery to Buyer of any Goods.
6. SELLER’S RIGHT TO INCREASE PRICES: Seller reserves the right to increase the selling price quoted according to Section 4(a) herein of any and all Goods whether before or following order acceptance as specified in Section 1 to reflect any increase in the cost to Seller which is due to any factor beyond the control of Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of dates, significant increase in the costs of labour, materials or other costs of manufacture). The selling price quoted herein shall upon increase in cost to Seller, increase by a percentage equal to the percentage of increase in Seller’s costs for Goods and Buyer agrees to pay any such increased price in accordance with the terms hereof. Charges for Services may be increased from time to time by at least 21 days prior notice to the Buyer.
7. TAXES: Seller’s prices do not include tax or other charges levied by government which are payable by Buyer. All charges are exclusive of Value Added Tax at the rate from time to time prevailing, which Buyer shall be additionally liable to pay Seller.
8. INDEMNITIES AND LIMITS OF LIABILITY: (a) Buyer agrees that it has accepted these terms and conditions in the knowledge that Seller's liability is limited and that the prices and charges payable are calculated accordingly. Buyer is advised to make its own insurance arrangements if it desires to limit further its exposure to risk or if it requires further or different cover. (b) Seller makes no representations and gives no warranties, guarantees or undertakings except as expressly set out herein. All other warranties, express or implied, by statute or otherwise, are excluded from this Agreement. (c) Except as expressly stated in this Agreement, any liability of Seller for breach of this Agreement shall not exceed in aggregate of damages, costs, fees and expenses capable of being awarded to Buyer, the total price paid or due to be paid over the 12 months up to the date of breach by Seller under this Agreement or the sum of fifty thousand US dollars (US$50,000) whichever is the lesser. This excludes liability for personal injury or death caused by Seller’s negligence, which shall not be subject to a financial limit, and liability for direct damage to property caused solely either by defects in the Goods or Services or by the negligence of Seller’s employees acting within the course of their employment and the scope of their authority, which shall not exceed the sum of one hundred thousand US dollars (US$100,000) for any event or series of connected events. (d) Except as expressly stated in this Agreement, Seller disclaims all liability in contract or in tort (including negligence or breach of statutory duty) to Buyer including but not limited to liability for loss of profits or arising from loss of data or unfitness for user purposes and in no event will Seller be liable to Buyer for special, indirect, incidental or consequential damages. (e) Where Buyer is a natural person who is acting in relation to this contract for purposes outside his business the statutory rights of Buyer are not affected by this Agreement.
9. INTELLECTUAL PROPERTY RIGHTS: (a) Indemnity by Seller. In the event any Goods become, or in Seller’s opinion are likely to become, the subject of a claim of infringement of any patent, trademark, copyright, semi-conductor chip topography right, or other proprietary right in the territory in which the Goods are sold, and if such claim or possible claim is not covered by paragraph (b) of this Section, then Seller shall, at its option, either (i) modify the infringing Goods so that the selling thereof by Buyer ceases to be infringing, (ii) procure for Buyer the right to continue selling such Goods, (iii) replace the infringing Goods or part thereof with a functionally equivalent, non-infringing Goods or part, or (iv) demand the return to Seller of all such Goods and upon receipt Seller shall grant full credit for the invoice price of such Goods (less any credits or discounts previously received by Buyer with respect to such Goods) that are returned in their original packaging. Subject to Buyer’s satisfaction of all of its obligations hereunder, Seller shall defend any suit or proceeding brought against Buyer insofar as such suit or proceeding is based upon a claim (other than a claim covered by paragraph (b) of this Section) that any of the Goods purchased by Buyer infringe any patent, trademark, copyright, semi-conductor chip topography right or other proprietary right under the laws within the territory in which the Goods are sold. Buyer shall notify Seller in writing of any such suit or proceeding promptly upon first learning of such suit or proceeding, and shall provide Seller, at no cost to Seller, with such assistance and cooperation as Seller may request in the defence of the case. Seller shall have complete control over any such suit or proceeding including, without limitation, the right to settle on behalf of Buyer on any terms Seller deems desirable in the sole exercise of its discretion; provided, however, that Seller shall pay all damages and costs finally awarded against Buyer or payable by Buyer pursuant to a settlement agreement approved by Seller. (b) Infringement Not the Responsibility of Seller. Seller shall not have any liability whatsoever to Buyer, its customers or endusers for any loss or damage resulting from a claim of infringement based upon or arising from (i) the use of any equipment, products, software, data or other work not manufactured, designed, assembled or supplied by Seller, (ii) the use of any Goods in implementing or practising a process, (iii) infringement resulting from a combination, alternation or configuration of equipment, except as recommended by Seller in writing, or (iv) the use of any name or mark of any work not authorized by Seller. (c) In no circumstances will Seller be liable for any costs or expenses incurred by Buyer without Seller's written authorisation and the foregoing states the entire remedy of Buyer in respect of any intellectual property right infringement by the Goods.
10. INSTALLATION: Buyer shall be solely responsible for the installation and operation of the Goods including without limitation, the obtaining of all permits, licenses or certificates required for the installation or use of such Goods.
11. EXPORT REGULATIONS: These commodities, technology, or software are subject to various export administration regulations applicable to various countries. Diversion contrary to any applicable regulations is prohibited by law. Having regard to the current statutory or other United Kingdom Government regulations in force from time to time and, since BCom Technology is owned by a US parent and many of the Goods are of US origin, to the United States Department of Commerce export regulations in force from time to time, and regardless of any disclosure made by the Buyer to the Seller of an ultimate destination for any Goods, the Buyer will not export or re-export any Goods, directly or indirectly, without first obtaining all written consents or authorisations which may be required by any applicable Government regulations.
12. USE OF PRODUCTS IN LIFE SUPPORT APPLICATIONS: Goods sold by Seller are not authorised to be used as life support equipment or for applications in which the failure or malfunction of the Goods would create a situation in which personal injury or death is likely to occur. Any such use or sale of Goods by Seller is at the sole risk of Buyer and Buyer agrees to indemnify and defend Seller against, and hold Seller harmless from all damages, costs, and expenses, including without limitation legal fees and costs relating to any legal action or threatened legal action arising out of such use or sale.
13. TECHNICAL ADVICE AND DATA: Any technical advice offered or given in connection with the use of any Goods is as an accommodation to Buyer without charge and Seller shall have no responsibility or liability whatsoever for the content or use of such advice. Without Seller’s prior written consent Buyer shall not use, duplicate, or disclose any technical data delivered or disclosed by Seller to Buyer for any purpose other than for installation, operation or maintenance of goods purchased by Buyer.
14. SOFTWARE: All computer software, if any, delivered by Seller to Buyer is licensed pursuant to separate licensing agreements or other arrangements directly to Buyer from the owner of the software or other third party. Buyer acknowledges receipt of a separate agreement pursuant to which software delivered to Buyer is licensed. Buyer acknowledges that Seller is not a party to such license with respect to software supplied hereunder. Buyer agrees to look directly to the licensing party in connection with all maintenance, support, infringement and warranty claims relating to software delivered to Buyer hereunder. Buyer will indemnify Seller in the event of any alleged violation of third party proprietary rights that results in any claims against Seller for all related costs, expenses and damages.
15. DEFAULT: In the event of any default Buyer shall pay all costs incurred by Seller in collecting any amounts due under this Agreement, including reasonable legal fees and costs. The waiver by Seller of any breach hereof or default in any payment shall not be deemed to constitute a waiver of any succeeding breach or default. The exercise or failure to exercise any remedy available to Seller shall not preclude the exercise of that remedy at another time or of any other remedy at any time.
16. INTEGRATION AND ASSIGNMENT: (a) This Agreement sets forth the sole and entire agreement between the parties with regard to the subject matter hereof and supersedes any and all prior or contemporaneous oral or written agreements between them regarding the same. No course of prior dealings between the parties shall be relevant to supplement or explain any term used in this Agreement. (b) Acceptance or acquiescence in a course of performance rendered under this Agreement shall not be relevant to determine the meaning of this Agreement even though the accepting or acquiescing party had knowledge of the nature of the performance and opportunity for objection. (c) No subsequent alteration of this Agreement whatsoever shall be binding upon Seller unless reduced to writing and signed by both Seller and Buyer. (d) No agent, employee, or representative of Seller has any authority to bind Seller to any affirmation, representation, or warranty covering the Goods. Unless an affirmation, representation, or warranty made by agent, employee or representative is specifically included within this Agreement it has not formed a part of this Agreement and shall not in any way be enforceable against Seller. (e) Any assignment of this Agreement or any rights hereunder by Buyer shall be void without Seller’s written consent.
17. BUYER TERMS AND CONDITIONS: Seller desires to provide its customers with prompt and efficient service. Accordingly, all orders are accepted and all contracts are made by Seller only on the terms and conditions stated herein and in the credit application and the insurance of credit by Seller. Seller’s performance of any contract is expressly made conditional on Buyer’s agreement to Seller’s Terms and Conditions of Sale and no other terms and conditions, whether contained on Buyer’s order forms, on correspondence or otherwise, and whether contrary to or additional to these conditions apply unless specifically agreed to in writing by Seller. If a contract is not earlier formed by mutual agreement in writing, acceptance of any Goods or Service shall be deemed acceptance of the terms and conditions stated herein.
18. INSOLVENCY OF BUYER: This clause applies if: (a) Buyer makes any voluntary arrangement with its creditors or an application is made for the appointment of an examiner or (being an individual or firm) becomes bankrupt or (being a Company) goes into liquidation (otherwise than for the purposes of a bona fide amalgamation or reconstruction) or petitions for an administration order or is involved in any legal proceedings concerning its solvency; or (b) if a trustee, receiver, administrative receiver or general officer is appointed over all or any part of any of the property or assets of Buyer; or (c) Buyer is deemed to be generally unable to pay its debts within the meaning of Section 123 or Section 268 of the Insolvency Act 1986,; or (d) any provision similar to the foregoing in another jurisdiction occurs to Buyer; or (e) Buyer ceases, or threatens to cease, to carry on business; or (f) Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to Buyer and notifies Buyer accordingly. If this clause applies then, without prejudice to any other right or remedy available to Seller, Seller shall be entitled to terminate this Agreement forthwith or suspend any further deliveries or performance under this Agreement without any liability to Buyer, and if the Goods have been delivered, or Services supplied, but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
19. PARTIES: A person, including but not limited to a company, affiliate or other organisation, who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
20. TERMINATION: If Buyer is, or becomes party to, a Distribution Agreement with Seller, such Distribution Contract shall supersede and replace this Agreement, and this Agreement shall terminate forthwith. The parties may terminate this Agreement by mutual agreement at any time or by either party giving at least 45 days written notice to the other party. In no event shall Seller be liable to Buyer (i) for any direct, indirect, incidental or consequential or exemplary losses or damages, including but not limited to lost profits, resulting from the termination of this Agreement for any reason, (ii) for the value of the development of Buyer’s business during the term of this Agreement, or (iii) to compensate Buyer for the value of, or any loss to, Buyer’s business on the termination of this Agreement for any reason.
21. GENERAL: This Agreement is governed by and construed in accordance with the laws of The Netherlands and the parties submit to the non-exclusive jurisdiction of the Dutch Courts. All agreements, covenants, conditions, and provisions contained herein shall apply to and bind the assignees and successors in interest of Buyer. If any provision or portions of this Agreement is held to be invalid, illegal, unconscionable or unenforceable, the other provisions and portions hereof shall not be affected. The several captions used herein are for the convenience of the parties only and shall not affect the construction or interpretation hereof.