Terms and conditions of sale of SOCOMEC, INC.

These Terms and Conditions (“Terms”) apply to all sales of Product and provision of Software and Services made by SOCOMEC, Inc. (“Seller”) to the purchaser (“Buyer”). These Terms include the Commercial Order Terms (defined below) included in each Order. No contrary or additional terms or conditions in any of Buyer’s order forms or other purchase documentation will have any force or effect. No interlineations, deletions, modifications, or amendments to these Terms shall be binding unless agreed to and accepted in writing signed by Seller. Buyer accepts these Terms (i) if Buyer does not provide written objection to Seller’s quotation within ten (10) days of receipt of the quotation, or (ii) if Buyer places any Order for Product, Software, or Services.

 

1) Definitions

“Commercial Order Terms” means the minimum information to be included in each Order: (i) the Product or Software ordered, (ii) quantities, (iii) prices, (iv) delivery information.
“Product” means any equipment, materials, or systems sold by Seller, including Special Products.
“Services” means any non-recurring services provided by Seller in connection with sale of Product to Buyer.
“Software” means any software, utility, tool, firm ware, or other computer code installed on or with any Product sold by Seller.
“Special Products” means any Product that is not retained in inventory and includes any components manufactured or combined pursuant to Buyer’s specifications and includes all related Services included in the applicable Order. By way of example, Seller’s critical power and storage systems are Special Products.

 

2) Quotations

Any quotation provided by Seller is non-binding unless Seller expressly states otherwise in writing. The weights, dimensions, capacities, performance ratings, characteristics and other data on Seller’s quotes, catalogs, prospectus, circulars, advertisements, price lists and instructions sheets are mentioned only as general information and are not binding.
Seller’s written quotation shall be valid for one month from the date of its issue, unless stated otherwise in the quotation. Seller reserves the right to make any change in the layout, form, dimension, weight or materials without giving a rise to any claim or price reduction.

 

3) Orders

Each accepted Order is deemed a single contract under a single set of Terms, independent of other Orders. Seller is bound by an Order only when Seller accepts the Order in writing and receives any deposit required by the quotation or Order. Orders for customized or Special Products are not cancellable. No Order is cancellable after shipment of the Product. Provided that Buyer is not in default of any payments due to Seller, Buyer may cancel an Order only upon the following conditions: (i) Buyer provides notice to Seller via registered letter with return receipt, and either (ii) Buyer pays Seller’s invoice for fifty percent (50%) of the total Order amount as a restocking fee if Seller receives notice of cancellation more than thirty (30) days from the delivery date in the Order, or (iii) Buyer pays Seller’s invoice for eighty percent (80%) of the total Order amount as a restocking fee if the Seller receives notice of cancellation thirty (30) days or less from the delivery date in the Order.

 

4) Prices and payment

Prices are subject to revision without notice in accordance with conditions existing on the invoicing date. Seller reserves
the right to make any corrections to prices quoted due to clerical errors or omission. All prices are stated in United States
dollars and Buyer will make all payments in United States dollars drawn on a bank located in the United States.
All Products and Software, excluding Special Products, are invoiced on delivery in accordance with the Order. Unless
otherwise agreed to in writing signed by Seller’s authorized representative, for Services and for Special Products, Buyer
will pay thirty percent (30%) of the total Order price upon submission of the Order to Seller. The remainder will be
invoiced as set forth in the Order. All invoices are due within 30 days of invoice date. All quoted prices are exclusive of
tax, export or import charges, transportation or insurance charges, and customs and duty fees, all of which are Buyer’s
responsibility to pay. Buyer will pay Seller all taxes and governmental fees that Seller is required to collect or pay upon
sale or provision of any Product, Software, or Services.
If Buyer fails to pay any amount under an Order when due, the total remaining amount under the Order becomes
immediately due and payable without any action by Seller and Seller has the right to suspend all other Orders without
prejudice to any other rights or action. Buyer is liable to Seller for all costs of collection of past due amounts and
enforcement of Seller’s rights, including attorney fees, court costs, witness fees, travel and lodging, etc.
Buyer grants Seller a purchase money security interest in each Product delivered to Buyer until payment is made in full to
Seller for such Product. Upon request, Buyer will cooperate with Seller in perfecting such security interest. Buyer grants
the Seller the right to enter Buyer’s premises and retake all or any Product for which payment is in default, without notice
or demand, unless Seller has accepted in writing satisfactory payment terms for the amount in default. Buyer agrees to
make all such Product available, shipping ready, for Seller, within five (5) days of receiving notice from Seller of its
intention to retake the Product.
Seller has the continuing right to review Buyer’s credit and change the payment terms, and at any time may require
advance payment, satisfactory security such as a confirmed irrevocable letter of credit , or other guarantee of prompt
payment prior to shipment of Product or provision of Services. Interest will accrue at the rate of one and one half percent
(1 1/2%) per month (or the highest legal limit) on any overdue payments beginning on the date on which the payment was due.
Seller is entitled to apply Buyer’s payments first to pay any amounts owed, including interest, late charges, costs of
collection, etc. Buyer has no right to offset or suspend any of its payment obligations to Seller. Buyer has no right to
cancel any Order if Buyer is in default of payment of any amount to Seller. If Buyer does not fulfill its payment obligations
to Seller completely or within the applicable payment period, Seller will be entitled to suspend its obligations to Buyer
completely and/or not to perform them.

 

5) Delivery and storage

All sales are made “Ex-Works Seller’s nominated facilities” unless otherwise indicated in the Order. Risk of loss passes to
Buyer upon delivery to the shipping carrier. Title to Product passes to Buyer only upon Seller’s receipt of payment in full
for the Order, including all interest, late fees, and penalties. Title to Software remains with Seller or its licensors. Delivery
is made freight pre-paid and Buyer is responsible for all Seller’s costs for packing, shipping, insurance, customs and special packaging. Seller has the right to make partial deliveries. Any Order by installments or repeat Order is subject to the agreed on quotation. Each installment Order is subject to partial invoicing.
If Buyer’s ability to accept delivery is delayed for any reason, Seller may agree, on written request of Buyer and at Buyer’s sole cost and expense, to store the Product under the Order for Buyer’s benefit provided that Buyer incurs all risk of loss while the Product remains in Seller’s possession. Buyer will pay Seller’s storage price equal to Six Tenths of a Percent (0.6%) of the total Order price, exclusive of tax, fees, insurance, shipping and packaging, per week of delay for a period, in Seller’s sole discretion, up to twelve (12) months. If required by Seller, Buyer will sign a written agreement with Seller’s terms and conditions of storage. The date on which Seller begins storage of Product on Buyer’s behalf is deemed the Delivery date under the Order and payments under the Order remain due and payable as if Buyer had taken possession of the Product. Seller’s agreement to store Product for Buyer does not modify any of Buyer’s payment obligations under these Terms and the Order and does not constitute a novation. It will be Buyer’s sole responsibility to acquire all necessary insurance for the Product stored at Seller’s premises.

 

6) Time for delivery

Delivery times are established when Seller accepts the Order. Any specific shipping date designated in writing signed by the Seller will be interpreted as estimated and in no event will dates be construed as falling within the meaning of “time is of the essence”. Seller is not responsible for any delays in filling Orders or for any loss or damages resulting from such delays. Late or delayed delivery is not a basis for Buyer to cancel an Order.

 

7) Acceptance and return of product

Buyer’s acceptance of Product is deemed to occur upon Delivery of the Product to the shipping carrier. Acceptance of Software is deemed to occur when the Software is activated or otherwise made available for Buyer’s access or use, whichever date is earlier. Buyer is responsible for giving prompt written notice of identified damage or nonconformance of Product. Buyer must inspect the condition of the packaging and the Product upon receipt and indicate any evident damage to the carrier on the delivery note, have the carrier’s agent sign the document and, within two (2) days of receipt of the damaged or non-conforming Product, send all documents by e-mail or fax to Seller’s facility from which Product was shipped, together with the carrier’s references. Buyer must make claims for concealed Product damage directly to the carrier directly and must also provide Seller with written notice and a copy of any such claim within three (3) days of Buyer’s receipt of the affected Product. Buyer must notify Seller within two (2) days of receipt of incorrect Product. If Buyer retains the Product without giving notice within the designated notice period, Buyer is deemed to have waived its right to reject the Product. Regardless of notification set forth in this section, for notice to be effective, all notices to Seller must be sent to Seller by registered letter with return receipt and received by Seller within five (5) days of Buyer’s receipt of Product.
Buyer has no right to cancel any accepted Order or return any conforming Product without Seller’s written consent, which may be withheld in Seller’s sole discretion. Any return shall be under the exclusive liability and at the full expense of the Buyer. Product that has been damaged due to acts of Buyer is not eligible for refund or exchange. All Product must be returned in original or equivalent packaging.
Product received by Seller but not eligible for return will be sent back to Buyer freight collect. For approved returns Seller will provide a credit equal to the lesser of the Product’s invoice price or its current replacement value, less shipping, handling, and restocking fees.

 

8) Intellectual and industrial property – confidentiality

We reserve all rights in the Products and Software not specifically granted to you under these Terms.
Buyer agrees that all intellectual, proprietary, and industrial property rights to, ownership of, and interest in all Product, Software, Services, and all associated and related patents, know-how, software, trademarks, trade names, logos, distinctive marks, designs, drawings, plans, technology, engineering details, and other materials created and/or made available by Seller and its parent, subsidiaries, affiliates, and related companies, including, without limitation, SICON SRL, SOCOMEC SAS (“Seller Companies”), including any and all applications for or registrations of any of the foregoing (collectively, “Seller Property”), are vested exclusively in Seller and Seller Companies. Buyer shall not reproduce, adapt, transfer, grant, assign, license, or use the Seller Property or otherwise act as maker of and/or party entitled to such rights, except in accordance with these Terms. Buyer will take reasonable precautions to prevent unauthorized access and use of the Seller Property by third parties. To the extent permitted by relevant law, Buyer will not and will not allow any third party to copy, decompile, disassemble or otherwise reverse engineer any Product or Software, or attempt to do so. Buyer is prohibited from, and will prevent any third party from, removing, covering, or altering any of Seller’s patent, copyright or trademark notices placed on, embedded in, or displayed by the Product or Software or their packaging and related materials.

 

9) Limited warranty

Unless the limited warranty included with a Product provides different warranty rights or disclaims all warranties, Seller warrants exclusively to Buyer that the Product is designed and manufactured to substantially conform to Seller’s specifications and will be free from defects in material and workmanship for a period of twelve (12) months from the date of Delivery unless the Order is for Special Product specific to Buyer in which case the warranty period is ninety (90) days from date of Delivery. Unless the user agreement included with Software provides different warranty rights or disclaims all warranties, Seller warrants exclusively to Buyer that the Software substantially conforms to the functional specifications and current documentation provided by Seller for a period of ninety (90) days from the date of Delivery. Provided Seller receives a valid warranty claim within five (5) days of Buyer discovering the alleged defect and the Product or Software is within the warranty period, as determined by Seller in its sole discretion, Seller’s liability and Buyer’s exclusive remedy, to the extent permitted by law, under any theory of liability, is limited, at Seller’s option, to replacing, repairing, correcting, or issuing credit for such defective Product or Software. At Seller’s request and as a condition to Seller’s obligations under the warranty, Buyer will provide all evidence of the alleged defect. The repair, replacement, or correction of all or part of the Product or Software during the warranty period will not extend the warranty period from the original date of Delivery. If Seller provides Buyer with any replacement Product or Software, the defective items returned to Seller will become Seller’s property.
Seller has no obligation to provide the limited warranty unless Buyer has fully paid all amounts due to Seller through the date on which Buyer makes a warranty claim.
The foregoing limited warranty only applies if and to the extent that (a) the Product or Software is properly and correctly installed, configured, interfaced, maintained, stored, and operated in accordance with Seller’s applicable documentation and specifications, and (b) the Product or Software is not modified or misused. No warranties are provided under these terms for any services. all services are provided “as is.” For use of product or software with “critical applications,” buyer shall contact seller beforehand to confirm the ability of the product or software to meet the buyer’s stated level of safety, performance, and reliability. “Critical applications” notably include life support systems, medical applications, commercial transportation, nuclear facilities, or any other applications or systems where failure of the electrical supply is likely to cause substantial harm to persons or property. Use of any product or software for any critical application is at buyer’s sole risk and liability. Seller provides the product and software “as is” if used for any critical application. Product and Software is intended for commercial use only. Buyer is solely responsible and liable for the selection of Product and Software ordered.

The limited warranty excludes:

(1) Use of the Product or Software for any Critical Application;
(2) Scratches, marks or other visible surface wear on the Product, unless Seller is notified as soon as the Product is received by the end-user and within the warranty period;
(3) Normal wear and tear from everyday use;
(4) Misuse or abuse by the end-user;
(5) Physical damage to the Product as a result of tampering, mishandling, neglect, , unreasonable use and/or negligence, accidental damage, or exposure to environmental conditions for which the Product or Software is not intended
(6) Modification or repair without the approval of Seller;
(7) Defect due to any material supplied by Buyer or due to a design imposed by it;
(8) Equipment with which the product is integrated.

 

10) Warranty disclaimer

The foregoing limited warranty terms are in lieu of all obligations or liabilities of seller and seller companies arising out of, or in connection with, seller’s product and software and states seller’s entire liability and buyer’s exclusive remedies relating to product and software. Except as otherwise expressly provided in these terms, product and software and any accompanying documentation are provided “as-is” and without express or implied warranty or condition of any kind, by seller, seller companies, or any other party, including, but not limited to, the implied warranties or conditions of merchantability and fitness for a particular purpose, satisfactory quality, title, and noninfringement, or as might arise by implication, operation of law, custom of trade or course of dealing. Additionally, seller and seller companies make no express or implied warranty that any software is or will be secure, accurate, complete, uninerrupted, free of errors, or free of viruses, or other malware or program limitations.
Some jurisdictions do not allow limitations on the duration or the exclusion of an implied warranty, so the above limitation may not apply or fully apply. If buyer is a reseller of product or software, buyer will not make or pass on to its own customers any warranty, condition, or representation on behalf of seller other than, or inconsistent with, the applicable limited warranty in the product and software provided to buyer under these terms. Implied warranties in jurisdictions where they are prohibited by law from being disclaimed will be in effect only for the duration of the express warranty set forth herein.

 

11) Limitation of liability

The entire liability of seller and seller companies for any and all claims arising out of or related to these terms, product, software, or services is strictly limited to the obligations stated in these terms and, in any event, is limited to direct and foreseeable physical and material damage in an amount not to exceed the amount actually paid by buyer to seller for the product, software, or services causing such damage.
Seller and seller companies are not be liable under any circumstances for any non physical, punitive, liquidated, incidental, consequental, or special damages, or any other damages, or for any lost profit, lost revenue, lost data, lost use of product or software or any associated equipment, costs of cover, downtime, or labor costs, arising out of or related to (i) the sale, provision, use, or installation of product or software, or from performance of services, (ii) product or software being incorporated into or becoming a component of other products, (iii) breach of these terms, (iv) seller or seller companies’ negligence or gross negligence, or (v) any other cause whatsoever, whether based on warranty (expressed or implied) or otherwise based on contract or on tort, or any other theory of liability, and regardless of any advice or representations that may have been rendered by seller or seller companies, concerning the sale, use or installation of product or software.
Buyer agrees that these limitations of liability are agreed allocations of risk constituting in part the consideration for seller’s fulfillment of its obligations under these terms, and such limitations will apply notwithstanding the failure of essential purpose of any limited remedy. Some jurisdictions do not allow the exclusion or limitation of incidental, consequential, or specified other damages, or allow limitations on how long an implied warranty lasts, so the above limitations or exclusions may not apply, or may not fully apply to buyer. Any contrary provision agreed by Buyer with any third party or user of the products will not bind Seller.

 

12) Indemnification

To the maximum extent allowed by law, Buyer and its parent, subsidiaries, affiliates and related companies, and their respective predecessors, past and present officers, directors, shareholders, agents, employees, legal representatives, successors and assigns (the “Indemnifying Parties”) assume liability for, and shall pay when due, and shall indemnify, reimburse and hold Seller and Seller Companies, and their respective predecessors, past and present officers, directors, shareholders, agents, employees, legal representatives, successors and assigns (the “Indemnified Parties”) harmless from and against any and all Claims (defined below), directly or indirectly relating to or arising out of (i) the acquisition, use, purchase, shipment (including delayed shipment or failure to ship), transportation, delivery, lease or sublease, ownership, operation, possession, control, storage, return or condition of Product or Software (regardless of whether the applicable Product or Software is at the time in the possession of any of the Indemnifying Parties), (ii) the falsity of any representation or warranty of Buyer at any time, (iii) any allegation that by using materials made available by Buyer, Seller or Seller Companies have infringed the intellectual property rights of any third party, or (iv) Buyer’s breach of these Terms. The foregoing indemnity shall include, without limitation, any claim for negligence, gross negligence, or liability in tort.
“Claims” means any and all liabilities, losses, damages, actions, suits, demands, claims of any kind and nature and all costs and expenses whatsoever to the extent they may be incurred or suffered by the Indemnified Parties (including, without limitation, reasonable attorneys’ fees and expenses), fines, penalties (and other charges of applicable governmental authorities), damage to or loss of use of property (including, without limitation, consequential or special damages to third parties or damages to Buyer’s property), or bodily injury to or death of any person(s) (including, without limitation, any agent or employee of Buyer, user of Product or Software, or any other person).

 

13) Insurance

Buyer shall maintain insurance (and provide the appropriate certificates, at the latest, at the date of signing of the contract) with the following minimum coverage:
Commercial General Liability Insurance — commercial general liability insurance with limits not less than $1,000,000 per occurrence, $2,000,000 general aggregate, to apply on a per location basis, including coverage for bodily injury, property damage, products and completed operations, personal injury, advertising injury, premises operations, preventive and curative measures and costs for recall of products, independent contractors and contractual liability; and,
Umbrella/Excess Liability Insurance – umbrella/excess liability insurance with limits not less than $4,000,000 per occurrence and $4,000,000 annual aggregate, which umbrella/excess liability insurance shall follow the form of the primary coverage, be in excess of the underlying policies without gaps in limits and provide coverage at least as broad as the underlying policies.
Additional Insured Requirements and Waiver of Subrogation. Buyer’s insurance policy shall name Seller Companies as additional insureds. If any policy requires an endorsement to provide for waiver of subrogation, Buyer shall cause the policy to be so endorsed.

 

14) Force majeure

Neither party will be liable for non-performance (except for payment obligations) due to causes beyond its reasonable control, provided that such party promptly notifies the other in writing of such occurrence and makes its best efforts to promptly eliminate the effect thereof.

 

15) Government end users-restricted rights

Software and its associated documentation are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 12.227.7202-1 through 227.7202-4, all U.S. Government end users acquire the software and documentation with only those rights set forth in these Terms and in the user agreement for such Software.

 

16) Export control

Buyer may not use or otherwise export or re-export any Product or Software except as authorized by the laws of the United States of America. In particular, but without limitation, the Product and Software may not be exported or re-exported in violation of export laws, including if applicable export or re-export into any US-embargoed countries or to anyone on the US Treasury Department’s list of Specially Designated Nationals or the US Department of Commerce Denied Person’s List or Entity List. Buyer represents and warrants that it is not located in any country or on any list where the provision of Product or Software to Buyer would violate applicable law. Buyer also agrees not to use or enable use of any Product or Software for any purposes prohibited by applicable law or export or re-export any Product or Software with knowledge that it will be used in the design, development, production or use of chemical, biological, nuclear or ballistic weapons. Laws and regulations change frequently. It is Buyer’s responsibility to know the law pertaining to export/import procedures in the country of destination of the Product and Software.

17) Default

Seller reserves the right by written notice of default to cancel or indefinitely suspend an accepted Order and to refuse additional Orders if: (i) Buyer defaults in performing any obligations under these Terms, (ii) Buyer ceases business operations or enters into any bankruptcy, insolvency, receivership or like proceeding not dismissed within 30 days, or assigns its assets for the benefit of creditors, or (iii) where Buyer requires third-party financing in connection with Buyer’s Orders, Buyer fails to acquire such financing in a timely manner on terms Seller finds satisfactory.

 

18) Compliance with local, state, and federal law

Buyer undertakes, represents, and warrants, for and on behalf of Seller, to comply with all regulatory or legal provisions whether present or future in relation to the collection, treatment, and elimination of electrical and electronic equipment. Buyer agrees to comply with all local, state and federal laws governing the treatment, disposal, and cleanup of hazardous waste that may be a by-product of Seller’s products. Seller assumes no responsibility whatsoever for loss or damage resulting from Buyer’s inability to conform to any and all applicable laws.
In the event that Seller is unable to comply with any regulatory U.S. requirements governing Seller’s products for any reason, and in particular, if the UL certification is hampered, Seller reserves the right, without any liability to Buyer, to terminate these Terms, any other contract between Seller and Buyer, or suspend indefinitely its obligations under these Terms or any other contract between Seller and Buyer.

 

19) Entire agreement

No waiver, modification, or addition to these Terms or any assignment of Buyer’s rights or obligations under them is valid or binding on Seller unless in writing and signed by Seller’s authorized representative. These Terms are the entire agreement between Buyer and Seller for sale or provision of Product and Software.

 

20) Non-assignment

These Terms and Buyer’s rights and obligations hereunder may not be assigned or delegated, in whole or in part, including by way of any change of control through transfer or sale of a controlling interest in Buyer’s equity, sale of assets, or otherwise, without the prior written consent of Seller. Any assignment or delegation in violation of this section will be null and void. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the parties and their permitted successors and assigns.

 

21) Severability; precedence

Each provision of these Terms shall be considered severable if any provision or provisions hereof are determined to be invalid and contrary to law. To the extent permitted by law, such invalidity will not impair the operation of or affect those portions of this agreement which are valid. If there is any conflict between these Terms and the quotation accepted by Seller or any Commercial Order Terms accepted by Seller, order of precedence will be: the quotation, the Commercial Order Terms, these Terms.

 

22) Applicable law, settlement of disputes

These Terms and any dispute, claim or controversy arising therefrom, or in connection with any Product, Software, or Services (each a “Dispute”) shall be governed by the laws of the Commonwealth of Massachusetts, without reference to “conflict of laws” principles and without reference to the United Nations Convention on Contracts for the International Sale of Goods. Buyers agrees and irrevocably submits to the exclusive personal jurisdiction of the federal and state courts located in Suffolk County in the Commonwealth of Massachusetts for the resolution of all Disputes. No Dispute may be brought by Buyer more than one (1) year after such cause of action accrued. Buyer and Seller agree to first attempt to resolve any Dispute through negotiation before bringing any action in court.

 

N° EIN: 26-3708440 July 2018
4846-1404-6317.1