BUYER AGREES THAT UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING THE FOLLOWING TERMS AND CONDITIONS SHALL CONSTITUTE THE COMPLETE AND FINAL AGREEMENT BETWEEN INNERSPEC TECHNOLOGIES EUROPE, S.L. (INNERSPEC), AND BUYER IN RESPECT TO THIS TRANSACTION. OBJECTION TO ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS IS HEREBY MADE. This Contract shall be governed by the laws of the kingdom of Spain. Any modification to the Contract shall only be effective when evidenced by a written instrument signed by an authorized representative of each party. The following definitions shall apply herein: “System” shall mean the hardware and software programs defined in the contract technical specifications. Hardware may include equipment or materials (hereinafter Equipment); software programs may include computer programs developed and owned by INNERSPEC as applications or integrating software (hereinafter “INNERSPEC Programs”) and commercially available third-party programs provided in conjunction with Equipment operation (hereinafter “Operating Programs”). “Installation” shall mean all work, as defined in the contract technical specifications, associated with installation of the System and performed by INNERSPEC at the Installation Site. “Installation Site” shall mean the Buyer’s facility where the System is to be delivered and installed. “Services” shall mean any optional services provided by INNERSPEC which, although purchased by the Buyer under a separate written agreement, will be subject to these terms and conditions. Services may include telephone hot lines, remote diagnostics, service calls, preventive maintenance programs and other support activities as may be defined in such service agreement. “Products” shall mean the System, Installation and/or Services. “Final Acceptance” shall mean final approval and acceptance of the System by the Buyer in accordance with acceptance/test criteria as defined in the contract technical specifications. The term “subcontractor(s)” shall include “vendors” and “suppliers”, irrespective of tier.
Unless previously withdrawn our quotation is open for acceptance in writing within the period stated or when no period is stated within thirty (30 days) after this date. We reserve the right to correct any errors or omissions in our quotation.
3. LICENSE OF PROGRAMS
INNERSPEC grants to Buyer, effective upon Final Acceptance of the System, (a) a nonexclusive license to use the INNERSPEC Programs identified in the System specifications, and (b) the right to use, in accordance with the terms provided by the owner thereof, the Operating Programs, if any, included with the System. The INNERSPEC Programs are provided and authorized to be installed, executed, and used specifically at the Installation Site, only in machine-readable, object code form. Through the INNERSPEC Programs, INNERSPEC may, but is not obligated to, remotely monitor the performance of the System, and collect, transmit and store data in remote servers for the purpose of improving the System performance and expanding its functionality. Buyer’s rights in the INNERSPEC Programs pursuant to such license are expressly limited to the use of the INNERSPEC Programs by Buyer at the Installation site in connection with operation of the Equipment. Buyer shall not assign, transfer, make copies, or sublicense the INNERSPEC Programs without the prior written consent of INNERSPEC.
4. DELIVERY, INSPECTION AND INSTALLATION
If Installation is specifically included in the Contract as part of the scope of work, Buyer, at its expense and prior to delivery and installation of the System at the Installation Site, shall prepare the Installation Site in an appropriate manner and shall cause the Installation Site to conform to any utility, environmental, and communication interface requirements that INNERSPEC or the suppliers of the Equipment may specify. Buyer shall promptly inspect the System upon its arrival at the Installation Site and shall notify INNERSPEC if Buyer finds any nonconformity or defect in the System.
Unless otherwise stated prices do not include where applicable any tax, license fee, customs import or export duty or charge of the cost of special packing or freight or insurance cover.
6. PERMITS AND REGULATORY REQUIREMENTS
INNERSPEC shall be responsible for obtaining any license or permit required of INNERSPEC in its name to enable it to deliver the Products. Should compliance of the Products with the laws, rules, regulations, or ordinances of any international, national, or local authority, or of any agency thereof, be required; and should such compliance require changes in the Products; or should any permits, licenses or approvals of plans and specifications for the Products or permits, licenses, or approvals for the installation or use thereof be required; Buyer assumes the risk and responsibility for such compliance or changes, and for securing such permits, licenses, and approvals from the proper authorities, and for paying any associated costs or fees.
7. DAMAGE IN TRANSIT AND LOSS IN DELIVERY
Claims for damage in transit or loss in delivery of the goods will only be considered if the carriers and INNERSPEC receive written notification of such damage within 7 days of delivery or in the event of loss of goods in transit within 21 days of consignment.
8. TRANSFER OF PROPERTY AND RISK
The title and property in the goods shall pass when full payment has been received of all sums due to INNERSPEC whether in respect of the present transaction or not. The risk in the goods shall be deemed to have passed on delivery.
9.1 Warranty with Respect to Equipment: INNERSPEC warrants that each item of Equipment delivered hereunder will be free from defects in workmanship and material. Such warranty will be in effect for a period of one (1) year from date of delivery. For consumables, no warranty period(s) shall apply. Any part of any item of Equipment furnished to Buyer which fails to conform to this warranty will, at INNERSPEC’s expense and within a reasonable time, be either repaired, or, at INNERSPEC’s option, replaced; or, if repair or replacement is impracticable or impossible, INNERSPEC will refund to Buyer the price actually paid to INNERSPEC by Buyer for the defective item of Equipment.
9.2 Warranty With Respect to INNERSPEC Programs and Operating Programs: INNERSPEC warrants that upon Final Acceptance of the System and for a ninety (90) days thereafter, the INNERSPEC Programs shall conform in all material respects to any specifications supplied in writing by INNERSPEC prior thereto, and shall not contain any material defect. The warranty for Operating Programs shall only be as stated in the literature accompanying same, and the warrantor will be the owner thereof and not INNERSPEC.
9.3 Warranty With Respect to Installation: INNERSPEC warrants that any Installation Site labor provided by INNERSPEC will be performed in a manner consistent with the standards of quality and care typical within the industry at the time of performance for similar work. Such warranty will be effective for a period of one (1) year from the date of performance of the Installation Site labor. If any Installation Site labor provided by INNERSPEC does not conform with INNERSPEC’s above stated warranty obligation, INNERSPEC will remedy, replace or re-perform same at INNERSPEC’s expense; or if repair, replacement or re-performance is impracticable or impossible, INNERSPEC will refund to Buyer the price paid to INNERSPEC for the non conforming Installation Site labor.
9.4 Warranty With Respect to Services: INNERSPEC warrants that any Services performed pursuant to this Contract will be performed in a professional manner consistent with the standards of quality and care typical within the industry at the time of performance for similar work. Such warranty will be effective for a period of one (1) year from the date of performance of the Service. Any Services which do not conform with INNERSPEC’s above stated warranty obligation will be re-performed by INNERSPEC at INNERSPEC’s expense, or, if re-performance is impracticable or impossible, INNERSPEC will refund to Buyer the price paid to INNERSPEC for the non conforming Services. The above-stated warranty notwithstanding, unless specifically included in the contract technical specifications, INNERSPEC shall not be responsible for any services relating to the development, implementation and/or refinement of production processes used by Buyer in connection with operation of the System to produce the Buyer’s products. INNERSPEC’s obligations with respect to effective use of the System to produce Buyer’s products shall be limited to delivery of hardware and software meeting the contract technical specifications, and it is understood by the parties that the unique knowledge of manufacturing processes for Buyer’s products shall remain Buyer’s responsibility.
9.5 Conditions of Warranty: The warranties and remedies set forth in 9.1 through 9.4, above, will apply only if notice of claim is given to INNERSPEC in accordance with the requirements specified above, and the following obligations of Buyer met: (1) Written claim must be made by Buyer within thirty (30) days from the date the non conformance is detected by Buyer and in no event later than thirty (30) days after expiration of the applicable aforementioned warranty period. (2) All Equipment must be properly unloaded, stored, maintained, and installed; and must be protected from damaging agents by Buyer except when installation of such System is included in INNERSPEC’s scope of supply. All Equipment must be operated only in a normal and proper manner, in accordance with any operating instructions or manuals and not in excess of any applicable ratings, limitations, or operating specifications. Any Buyer modification to the Equipment or any INNERSPEC Programs or Operating Programs shall presumptively void INNERSPEC’s warranty and remedy obligations to Buyer. (3) If INNERSPEC is required to repair or replace any part(s) of the System or re-perform any Installation or Services, Buyer shall be obligated at its own expense to provide access to the part of the System or any parts or items of Equipment, which are to be repaired or replaced. (4) Buyer shall, at no expense to INNERSPEC, provide site personnel, facilities, data and information to assist in any activity which may be required of INNERSPEC under this warranty. For consumables or those parts or items of Equipment that may be readily removed from the System, Buyer agrees to remove such parts or items and ship to INNERSPEC for repair, if appropriate, and in any event Buyer agrees, at its expense, to install the repaired or replacement part. Whether removed by Buyer or INNERSPEC, all defective parts or items of Equipment shall be returned to INNERSPEC. If INNERSPEC responds to a warranty claim and the above conditions have not been met, Buyer agrees to reimburse INNERSPEC its costs for so responding, and the parties may agree to have INNERSPEC perform out-of-warranty service at INNERSPEC’s then-current rates. (5) Buyer is responsible for transportation costs of the equipment to and from the factory for warranty replacement or repair, and for all travel expenses incurred by service personnel.
9.6 Warranty Disclaimer: THE WARRANTIES AND REMEDIES SET FORTH HEREINABOVE ARE EXCLUSIVE, AND NO OTHER WARRANTY OR REMEDY OF ANY KIND, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS, OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF PERFORMANCE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SHALL APPLY.
9.7 Exclusive Remedies: The sole liability of INNERSPEC and the exclusive remedy of Buyer with respect thereto, arising out of the purchase, manufacture, sale, furnishing, or use of the Products, whether such liability is alleged to arise on account of contract, tort (including negligence), strict liability, or otherwise, shall be limited to the remedies specified in this Article and in Article 14, PATENTS. In no event shall INNERSPEC be responsible for any work done by others, or for any loss, damage, cost or expense arising out of or resulting from such work, provided that in the event INNERSPEC has engaged subcontractors in the performance of its obligations, INNERSPEC will have the same responsibilities to Buyer for such work as it has with respect to its own work.
10. LIMITATION OF LIABILITY
Neither INNERSPEC nor its subcontractors shall be liable whether arising under contract, tort (including negligence), strict liability, or otherwise, for loss of anticipated profits, loss by reason of plant or other facility shutdown, non operation or increased expense of operation, claims of Buyer’s customers or subcontractors, or for any special, incidental, indirect, or consequential loss or damage of any nature arising at any time from any cause whatsoever. The total liability of INNERSPEC and its subcontractors, whether in contract, tort (including negligence), strict liability, or otherwise, shall not exceed the price of this Contract. The provisions of this Article shall apply notwithstanding any other provision of this Contract or of any other agreement.
11. INDEMNIFICATION AND WAIVER
For work performed hereunder by INNERSPEC at the Installation Site, INNERSPEC indemnifies and holds harmless Buyer except to the extent Buyer is compensated or entitled to compensation by Buyer’s insurance against all losses, claims, damages, or liabilities arising out of or based upon bodily injury (including death at any time resulting therefrom) occurring prior to completion of the Installation Site activity under this Contract, when proximately caused by the negligence of INNERSPEC or its subcontractors. Buyer waives any and all rights and remedies and shall require its insurers to waive any rights of subrogation against INNERSPEC and its subcontractors, whether in contract, tort (including negligence), strict liability or otherwise for any loss or damage including loss of, or damage to, or loss of use of, any property at the Installation Site, no matter how caused and regardless of fault. Except as provided above, Buyer indemnifies and holds harmless INNERSPEC and its subcontractors against all losses, claims, damages or liabilities arising out of or based upon bodily injury (including death at any time resulting therefrom).
12. DELAY IN PERFORMANCE
INNERSPEC shall not be liable for any expense, loss or damage resulting from delay or prevention of performance of this contract caused by fires, floods, acts of God, strikes, labor disputes, labor shortages, inability to secure materials or equipment, fuel or other energy shortages, riots, thefts, accidents, transportation delays, acts or failure to act of any government or of Buyer, delay in obtaining licenses, major equipment breakdown, or any other cause whatsoever, whether similar or dissimilar to those enumerated above, beyond the reasonable control of INNERSPEC. In the event of any delay occasioned by INNERSPEC or its subcontractors arising by reason of any of the foregoing, the time for performance shall be equitably adjusted. When INNERSPEC is performing work under this Contract at the Installation Site, Buyer shall pay INNERSPEC at the rates applicable for the work in question for time lost on account of such delay.
13. OPERATION OF BUYER’S EQUIPMENT - INTERPRETATION OF DATA
INNERSPEC’s personnel are authorized to consult with Buyer but are not authorized to operate equipment which is a part of Buyer’s Installation Site. All operation of Buyer’s equipment shall normally be performed by and under the supervision of Buyer; provided, that personnel of INNERSPEC may, if expressly agreed in writing, on a case basis, operate Buyer’s test equipment or equipment used for repair or maintenance activities. Where applicable, INNERSPEC’s personnel shall advise and consult with Buyer concerning data generated or obtained by Buyer in connection with this Contract, however, Buyer accepts total responsibility for the analysis or interpretation of such data and for judging what actions are required as the result of it.
14. PROPIETARY INFORMATION
Any information concerning the parties hereto which is disclosed to the other party incident to the performance of work pursuant to this Contract is conclusively presumed to have been disclosed in confidence, and the recipient shall not publish or otherwise disclose it to others without the written approval of the disclosing party. Buyer understands that special techniques in the arts and sciences, developed or accumulated by INNERSPEC on its own time and at its own expense, will be employed to benefit Buyer under this Contract, and Buyer further agrees that such special techniques are proprietary and shall not be disclosed to any third party during or subsequent to the term of this Contract without INNERSPEC’s prior written consent; provided, however, that nothing herein shall limit Buyer’s right to disclose any data provided by INNERSPEC hereunder which (a) properly becomes knowledge available within the public domain or (b) is received by Buyer from a third party without restriction and without breach of this or any other Contract. This Contract does not affect any transfer of title in the INNERSPEC Programs, the Operating Programs, or any materials furnished or produced in connection therewith, including drawings, diagrams, specifications, input formats, source code(s), and user manuals. Buyer acknowledges that the INNERSPEC Programs (and all materials furnished or produced in connection with the INNERSPEC Programs), including, without limitation, design, programming techniques, flow charts, source code, and input data formats, may contain trade secrets of INNERSPEC, entrusted by INNERSPEC to Buyer under this Agreement for use only in the manner expressly permitted hereby. Buyer further acknowledges that INNERSPEC claims and reserves all rights and benefits in the INNERSPEC Programs. Neither the INNERSPEC Programs nor any materials provided to Buyer in connection with the INNERSPEC Programs may be modified, enhanced, copied, reprinted, transcribed, or reproduced, in whole or in part, without the prior written consent of INNERSPEC.
15. RIGTHS IN INFORMATION AND DATA
INNERSPEC shall own, have and retain the right to publish, use, make derivative works from, seek patent, trademark and/or copyright protection for, and have used, and permit others to publish, use, and/or have used, all information, data, designs and intellectual property used, developed, or acquired by INNERSPEC in the course of performance of the work hereunder, which use would not be prohibited by Article 14, above. Buyer shall have the right of access to such information or data for the limited purposes of maintenance but not duplication of the System by Buyer or third parties, as well as use of the System by Buyer (but not by third parties) for the purpose intended or such similar related purposes as Buyer may elect.
INNERSPEC shall defend at its own expense any suit or action brought against Buyer based on a claim that the Products, excluding any Operating Programs, delivered hereunder, or any INNERSPEC-manufactured part thereof, or the designed use of same, constitutes infringement of any patent or copyright of the kingdom of Spain, and INNERSPEC shall also pay all costs and damages awarded therein against Buyer. In case such System or any part thereof is held to constitute infringement, and its use is enjoined, INNERSPEC shall, at its option and expense either: procure for Buyer the right to continue to use such System or part thereof; replace it with a substantially equivalent non infringing part or System; or modify it so it becomes non infringing. Buyer shall not have the right to claim indemnity under this Article unless it provides prompt written notice of the assertion of any claim of infringement to INNERSPEC and makes available all needed information, assistance, and authority it possesses for the defense of any suit or proceeding in which such claim is asserted. Any such replacement or modification shall be accomplished subject to the Conditions of Warranty which apply for repair or replacement of defective Equipment under the Warranty article hereof. The foregoing sets forth the entire responsibility of INNERSPEC with respect to patent or copyright infringement.
17. ASSIGNMENT AND TRANSFER
Any attempt to assign this Contract shall be void unless prior thereto the parties have mutually agreed to contract assignment by a duly executed agreement. This clause shall not, however, prohibit a transfer resulting from corporate merger. In the event Buyer transfers any interest in the System, Buyer will indemnify and hold harmless INNERSPEC from and against any claims, losses, damages, or liabilities which INNERSPEC may incur.