REDUCT® – Terms and Conditions of Sale & Indemnity Agreement
READ THE TERMS AND CONDITIONS OF YOUR LICENSE AGREEMENT CAREFULLY BEFORE USING THE EQUIPMENT. THE TERMS AND CONDITIONS AND INDEMNITY AGREEMENT TOGETHER WITH ANY APPLICABLE ADDENDUM REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU (THE “LICENSEE”) AND THE LICENSOR. (“REDUCT®”) CONCERNING THE EQUIPMENT AND DOCUMENTATION DELIVERED HEREUNDER. BY USING THE EQUIPMENT, YOU ACCEPT THE TERMS OF THIS AGREEMENT. IF YOU ARE NOT WILLING TO DO SO, RETURN THE UNOPENED PACKAGE IMMEDIATELY FOR A FULL REFUND.
DEFINITIONS. “Agreement” means the Product Order Form and these terms and conditions;
“Deliverables” means the Product, the Documentation, and REDUCT® Maintenance Services;
“Delivery” or “Delivery Address” means ‘ex-Factory’ REDUCT® Group production facilities in Belgium;
“Delivery Date” means the delivery date specified in the relevant Product Order Form;
“Documentation” means the operating manuals and user instructions identified by title and reference number in the Product Order Form;
“Estimated Product Delivery Time” means the estimation of delivery time for the Product;
“Equipment” means Product equipment covered by REDUCT® Maintenance Services;
“Intellectual Property Rights” means patents, trademarks, service marks, design rights (whether registrable or otherwise), copyright, know-how and other similar rights or obligations whether registrable or not in any country;
“License” means the non-exclusive license granted by REDUCT® to use the Licensed Program(s) on and in conjunction with the Deliverables;
“Licensed Program” means the Field computer’s communication software;
“Maintenance Services” means those services that are accompanied by the delivery of the Product, pursuant to terms and conditions described in Exhibit A herein;
“Party” means either seller or buyer, together referred to as “PARTIES”.
“Product” means any product identified in the Product Order form;
“REDUCT® Material” means Intellectual Property in REDUCT® data output in the form of, including but not limited to csv, maps, in digital format, analyses, designs, documentation, offers, etc. and all preparatory work thereto.
REDUCT OBLOGATIONS REDUCT® shall deliver the Product and Maintenance Services ‘ex-Factory’ REDUCT® Group production facilities in Belgium (“REDUCT® Depot”).
REDUCT® shall deliver the Product on the Delivery Date. If REDUCT® at any time has reason to believe that it will be unable to deliver the Product on the Delivery Date, REDUCT® shall immediately notify the Client of the cause and the expected period of delay.
In the event that REDUCT® fails to deliver the Product on the Delivery Date, it shall arrange all such additional resources as may be necessary to effect delivery of the Product as soon as is reasonably practicable thereafter.
The delay will, if applicable, automatically extend the timelines agreed in the Product Order Form above equal to the amount of delay.
PRICE The price of the Product and Deliverables shall be as specified in REDUCT® ’s Price List as at the date of the relevant Product Order Form.
The price shall be exclusive of any applicable value added tax and any charges for packaging and carriage and any other duties, imposts or levies (which shall be payable by the Client).
LIMITED WARRANTY/LIMITATION OF REMEDIES REDUCT® guarantees that the Product satisfies the specifications by REDUCT® , WHICH SHALL BE THE MANUFACTURER’S LIMITED EXPRESSED WARRANTY THAT ACCOMPANIES THE PRODUCT, which will be one (1) year as of Delivery Date, on condition that the Client has fulfilled all usage- and maintenance information and data are processed by REDUCT® . A modification of these specifications is only possible with the explicit agreement of REDUCT® and the Client. REDUCT® HAS NOT MADE AND DOES NOT MAKE, TO CLIENT OR OTHERS GENERALLY, ANY ADDITIONAL OR INDEPENDENT REPRESENTATION, WARRANTY OR COVENANT, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT AND EQUIPMENT, NOR WITH RESPECT TO THE EQUIPMENT’S MANUFACTURE, DESIGN, CONDITION, DURABILITY, SUITABILITY, FITNESS FOR USE OR INTENDED BY CLIENT OR END-USER FOR A PARTICULAR PURPOSE, OR MERCHANTIBILITY, AND SHALL NOT BE RESPONSIBLE FOR ANY PATENT OR LATENT DEFECTS THEREIN, OR ANY DAMAGES WHETHER ACTUAL, SPECIAL, CONSEQUENTIAL OR INCIDENTAL ARISING THEREFROM.
REDUCT® guarantees that the Product satisfies all European or Belgian legal rules concerning safety and health of products, on condition that the Client has fulfilled all usage- and maintenance information.
Under no condition, the guarantee by REDUCT® can be invoked if the Product or any of its components have been opened, disassembled, unsealed or changed by the Client, or if the Product has been built into a bigger or smaller whole by the Client without this being laid down in the above mentioned specifications, or if the Product has been used for another application than the one stated in the mentioned specifications, or if damaged by Client in transit or by improper storage, installation, operation, misuse (including, without limitation, use of Product without REDUCT® ’s Maintenance Services), abuse, negligent use or repair or alteration, or by use which does not conform to the specific or general instructions of REDUCT® , or if the damage has occurred due to causes external to the Product.
When a Product is delivered to the Client, the Client will accept this Product, explicit or tacit, within 8 days of delivery. This acceptance will relate to the conformity of the product to the specifications. As far as hidden shortcomings to the Product are concerned, the Client has to invoke the above-mentioned guarantee within 8 days after the incident that occasioned the invocation of the guarantee took place, and at the latest within 3 months after Delivery.
In no event shall REDUCT® be liable for special, incidental, indirect damage or consequential loss. In no event shall REDUCT® ’s liability exceeds the repair, replacement or cost of the specific Product purchased from REDUCT®.
REDUCT® or any REDUCT® affiliate assumes no liability for any damage to the Client’s network from any cause other than willful misconduct of REDUCT® . In no event shall REDUCT® ’s or any of REDUCT® ’s affiliates liability exceed the price of the specific Product purchased from REDUCT® , regardless of whether such liability is based in contract, tort, statute or otherwise, including, without limitation, breach of contract, breach of warranty, negligence, strict liability, negligent misrepresentation and other torts
If a complaint about a Product is considered by REDUCT® well founded, REDUCT® can choose to repair the product or replace it by a new or similar Product.
INVOICING AND PAYMENTS All invoices shall be issued to the Client at the address and name as set forth in the Product Order Form.
REDUCT® has the right to require payment against delivery. Otherwise, payment by the Client shall be made within thirty (30) calendar days from the date of the invoice.
Any and all disputes from the Client regarding an invoice must be notified to REDUCT® within eight (8) calendar-days as of the invoice date. If the Client fails to notify REDUCT® within the given timeframe the invoices are deemed accepted.
Should any delay in payment occur other than for disputed amounts, REDUCT® shall charge interest in accordance with the number of calendar days delayed such payment is late at LIBOR plus 5 %.
TITLE, INTELLECTUAL PROPERTY RIGHTS AND LICENSES Title to and risk in the Product shall pass to the Client upon delivery of the Product in accordance with 2.1 through 2.4 herein.
REDUCT® grants to the Client a non-exclusive License to use the Licensed Program. The License is limited to use on and in conjunction with the Deliverables.
The Licensed Program and the Intellectual Property Rights are and shall remain the property of REDUCT®. The Documentation is copyrighted by REDUCT® with all rights reserved. Under the copyright laws, the Licensed Program and the Documentation cannot be reproduced in any form without the prior written permission of REDUCT®. The Client is however allowed to make so many copies as are reasonably necessary for operational security and use. Such copies and the media on which they are stored shall be the property of REDUCT®.
Intellectual Property which belongs to a Party on the signature date of the Agreement shall remain the property of that Party.
All means of Product production, design, methods and techniques used by REDUCT® during the development and / or production of the Product continue to be the property of REDUCT® , who will possess all intellectual titles to them, whether or not they were developed or obtained by REDUCT® during the Product production process.
REDUCT® Material shall vest in REDUCT® and REDUCT® hereby grants a non-exclusive, non-transferable license (or sub-license, in the event of third party intellectual property rights) to use the REDUCT® Material, including – if and insofar such rights are granted to REDUCT® and may be granted to REDUCT® – the right to copy, modify or adapt the REDUCT® Material, and the right to use it for the purpose of other parties, for a term of 15 years as from the date of signature of the Agreement.
EFFECTIVE DATE AND TERMINATION This Agreement shall be in effect as of the date of the Product Order Form is signed by both Parties.
This Agreement may be terminated forthwith by either REDUCT® or the Client upon giving notice to the other if the other: (a) commits a material breach of any of the terms and conditions of the Agreement and which shall not have been remedied within 30 calendar days of a written request to remedy the same; (b) makes or proposes to make any arrangement or composition with its creditors or has a receiver, administrative receiver, administrator, liquidator, manager or similar officer appointed in respect of all or any part of its assets or passes a resolution for winding-up (otherwise than for the purpose of a solvent amalgamation or reconstruction where the resulting entity assumes all of the obligations of the relevant Party under this Agreement), or is dissolved or undergoes or suffers any analogous acts or proceedings under any foreign law.
Any termination of this Agreement shall not operate so as to relieve the Parties from their respective obligations under any outstanding orders submitted; or affect any accrued rights or liabilities of either Party or the continuance in force of clauses 4, 5 and 7.
FORCE MAJEUR If either Party is affected by Force Majeure or Acts of God it shall promptly notify the other of the nature and extent of the circumstances in question, and the length of time for which it is estimated such circumstances shall subsist.
REDUCT® shall not be responsible for damages or delays resulting from Force Majeure or Acts of God, and from other actions, both governmental and otherwise, including but not limited to war, riot, seizure, and embargo.
Should any event of Force Majeure or Acts of God prevent either Party from performing any of its obligations under this Agreement for a period of more than two (2) months, the non-defaulting Party shall thereupon be entitled forthwith by notice to the other to terminate this Agreement or, at its discretion, to cancel the relevant order which has been the subject of the event of Force Majeure or Acts of God.
All notices required or permitted under the Agreement shall be in writing and shall be delivered personally with proof of receipt, sent by fax transmission with proof of receipt or registered mail, to the Parties at their addresses set forth above or to such other address as a Party shall have notified the other Party.
This Agreement may not be assigned by either Party without the prior written consent of the other Party. No term of this Agreement shall be enforceable by a third party.
The foregoing constitutes the entire agreement between the Parties relating to the subject matter hereof. Only an instrument executed by the Client and REDUCT® may amend the Agreement.
If any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid and enforceable. It is expressly understood and agreed that each and every provision of this Agreement which provides for a limitation of liability or limited warranty is intended by the Parties to be severable and independent of any other provision and to be enforced as such.
GOVERNING LAW; JURISDICTION.
The Agreement and the rights and obligations of the Parties hereto, shall be governed by, and construed and enforced in accordance with the laws of Belgium without reference to its rules regarding choice or conflict of Law. The parties expressly waive any right to any forum to which they may otherwise be entitled. REDUCT® may choose to apply laws of a different Country or State for different provisions or issues which may arise out of this Agreement. Any dispute arising out of or in connection with this Agreement, shall be referred to the Courts of Antwerp, which shall have exclusive jurisdiction.
EXHIBIT A to TERMS AND CONDITIONS OF SALE & INDEMNITY AGREEMENT
REDUCT® Calibration and Support Agreement (CSA)
Coverage for initial one (1) year (*) from effectiveness of this Agreement: Free remote technical/operational support.
Standard Software upgrades.
(*) For Non-Dongle sales coverage is automatically extended on an annual basis provided Client has pre-paid the annual CSA extension fee without interruption and is not in arrears of any other payments due. For Dongle sales coverage is automatically extended on a quarterly basis provided Client has paid the four (4) preceding quarters of the Fixed Quarterly Software License Fee and is not in arrears of any other payments due.
Charges for Repair: Parts and/or Labour will be charged to Client, except for the duration of and if under REDUCT® ’s Product Warranty. All repairs will be preceded by communication on default analysis, estimated costs of parts and target delivery date.
Exclusions: Damage due to abuse, mishandling, or improper operation of the equipment is not covered under REDUCT® ’s Product Warranty. Equipment shall be delivered to the REDUCT® Depot clean. Labor hours arising from cleaning Equipment to allow default analysis are not covered by this Agreement. Maintenance and repair costs exclude shipping and insurance costs to/from REDUCT® Depot.
Client agrees to maintain and use the Equipment in a safe and proper manner in conformity with all federal, state and local laws and ordinances, pertaining thereto and in accordance with REDUCT® ’s written and oral recommendations and Operating Manuals. Should the Equipment or any part thereof become unsafe, in state of disrepair, or not be in good operating condition, Client shall immediately notify REDUCT® and shall cease all operation of the equipment or any part thereof until the same has been examined by REDUCT® or by someone appointed by REDUCT® . REDUCT® shall have no responsibility, direction, or control over the manner of maintenance, use or operation of Equipment by Client, unless specifically retained for such additional service(s). Client acknowledges that REDUCT® is not an agent of Client for the purposes of any inspection, repair or maintenance. Client acknowledges and certifies the proper use and operation of the equipment and warrants that the Equipment will only be operated by REDUCT® Certified operators.
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