GENERAL TERMS AND CONDITIONS
These are the terms and conditions (“Terms”) that apply to any sale of PostProcess products, licensing of accompanying software, and/or the provisions of services. Your (“Customer”) purchase, acceptance and/or use of the products, software or services constitutes agreement with and acceptance of these Terms.
“PostProcess” means PostProcess Technologies, Inc. and/or its affiliates. “PostProcess Group” means PostProcess and its suppliers.
1.Products. PostProcess agrees to sell to Customer, and Customer agrees to purchase, the products and/or services that are set forth in any purchase order accepted by PostProcess or any other PostProcess-approved written purchase agreement (each a “Purchase Order”). Products may include but are not limited to machines, parts for machines, and consumables for use in the machines. Services may include but are not limited to benchmarking of Customer’s parts (or Customer’s customers’ parts) using our products, installation and testing of products, training and support for use of products, maintenance and repair of products, and warranty and extended warranty services. Certain services may be offered under additional terms and conditions in a separate agreement that, on full execution by the parties, shall control and govern to the extent necessary to resolve any conflict with these Terms.
2. Software and Documentation. Products may include software, including but not limited to program code, technical documentation, instructions, and updates to any of the foregoing that PostProcess may provide from time to time (collectively “Software”). PostProcess hereby grants Customer a non-exclusive, nontransferable, revocable, and limited license to use the Software for internal purposes and solely in conjunction with the use of the product to which it relates. Customer acknowledges that the Software may also be subject to additional terms and conditions set forth in executable or electronic license agreements, which shall control and govern all such licensed software use to the extent necessary to resolve any conflict with these Terms. All rights not expressly granted herein or in such additional license agreements are reserved. Notwithstanding any other provision of these Terms, any use herein of the terms “sale” or “purchase” or a similar term in connection with Software shall only mean a license of such software in accordance with these Terms.
3. Machine Data. Products and/or Software may generate data concerning testing, installation, operation, servicing and maintenance of the products and Software as well as the efficiency and efficacy of the products and Software, including with respect to Customer’s use thereof including without limitation to benchmark or otherwise process Customer (or Customer’s customer) parts (collectively “Data”). PostProcess shall have the right to access, analyze, use and retain copies of the Data in any manner, including without limitation to improve its products and Software.
4. Restrictions. Customer agrees that that Customer shall not directly or indirectly:
5.Payment. Customer shall pay for the products, Software and/or services as and within the time frames, or by the due dates specified, in the Purchase Order. All prices are exclusive of, and Customer shall pay, all applicable sales, use and other taxes or duties imposed, or otherwise due, on the sale, purchase or license of the products, software and/or services, except for those taxes imposed on PostProcess’ net income. All payments are due in U.S. dollars unless expressly indicated otherwise in the Purchase Order. Late payments shall bear interest at the rate of 1% per month or, if lower, the maximum rate allowed by law.
6. Delivery, Title and Risk of Loss. Delivery is made FOB Shipping Point for Customer orders for delivery within the United States (and Ex Works for Customer Orders for delivery outside the United States,) at PostProcess’ designated facility, unless otherwise agreed to by the parties in the Purchase Order, with respect to shipping costs, risk of loss and title transfer; provided, however, that title transfer shall never occur for any software. Additionally, if the applicable law permits, title further shall not pass to Customer until PostProcess has received full payment for any and all amounts due; if applicable law does not permit the foregoing, then Customer grants and agrees that the products shall remain fully subject to a first priority purchase money security interest until PostProcess receives full payment. PostProcess will attempt to meet Customer’s requested delivery date but cannot and does not warrant quoted shipment or delivery dates or time frames.
7. Installation and Training. To the extent specified in the Purchase Order, PostProcess or its authorized representative will install the products (including Software) at Customer’s designated facility and provide training to Customer’s designated personnel on the use of the products, provided that: (a) PostProcess has received all payments due by then; and (b) Customer has completed all applicable site preparations for installation as specified by applicable product documentation, or as otherwise specified by PostProcess, and as required by law (including but not limited to health and safety laws). Where applicable and required by PostProcess, PostProcess or its authorized representative will perform standard testing of the products and, upon successful testing, will present Customer with a certificate of acceptable testing which Customer agrees to sign and constitutes Customer’s acceptance of the products to the extent not previously established.
8. Warranties and Limitation of Liability.
a) Limited Warranty and Warranty Period. The standard limited warranty period for machine products and Software is one (1) year or, if sooner, upon two thousand (2,000) hours of cumulative use of the product. The aforesaid warranty period commences upon delivery of the products or, if later and applicable, PostProcess’ proffer of a certificate of acceptable testing. The standard warranty period for consumable products shall be (if any) as expressly identified in the product literature current as of the time of order or on the product label. The standard warranty for services shall be (if any) as expressly identified in the applicable services agreement. The parties may agree in signed writing to a shorter or longer warranty period. For the applicable warranty period, PostProcess warrants that:
b) Limited Warranty Remedies and Exclusions. PostProcess’ sole obligation and Customer’s sole remedy under a valid warranty claim shall be: (a) in the case of products, to repair or replace, at its sole option, the product; (b) in the case of Software, to use commercially reasonable efforts to resolves inconsistencies between the functionality of such Software and its published specifications; and (c) in the case of services, as (and if) expressly set out in the applicable agreement. PostProcess’ limited warranty obligations hereunder shall terminate and shall not apply in any case where the product, Software or service fails to meet its warranty due in whole or in part to any one or more of: (i) Customer’s fault or negligence; (ii) improper or unauthorized use or use in violation of applicable laws or regulations; (iii) use of any parts or consumable materials in machine products other than those pre-authorized by PostProcess; (iv) installation, modification or repair other than by PostProcess or its authorized representative; and (v) deviation from maintenance procedures, operating environments or other conditions recommended by PostProcess, including as specified in applicable product instructions and documentation.
c) Warranty Disclaimer. THE WARRANTIES SET FORTH IN THIS SECTION 8 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY (INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT), ANY AND ALL OF WHICH ARE EXPRESSLY DISCLAIMED. THE REMEDIES PROVIDED IN THIS SECTION 8 SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OF POSTPROCESS GROUP TO CONFORM TO SUCH LIMITED WARRANTY AND, EXCEPT FOR SUCH REMEDIES, POSTPROCESS GROUP SHALL NOT BE LIABLE TO CUSTOMER FOR ANY (I) CLAIMS, LIABILITIES OR EXPENSES, WHETHER BASED IN CONTRACT, TORT, INTELLECTUAL PROPERTY INFRINGMENT, TRADE PRACTICES, STATUTORY, PRODUCT OR OTHER STRICT LIABILITY, OR OTHERWISE, OR (II) CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR INCIDENTAL LOSS, DAMAGE OR EXPENSE. POSTPROCESS DOES NOT WARRANT THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL ANY LIABILITY OF POSTPROCESS GROUP UNDER THIS AGREEMENT FOR ANY DIRECT OR INDIRECT CLAIM, LOSS, DAMAGE, EXPENSE OR OTHER AMOUNT, EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER TO POSTPROCESS FOR THE PRODUCT, SOFTWARE OR SERVICE GIVING RISE TO SUCH CLAIM, LOSS, DAMAGE, EXPENSE OR OTHER AMOUNT, REGARDLESS OF THE THEORY OR FORM OF ACTION OR FAILURE OF ANY REMEDY SET FORTH HEREIN OF ITS ESSENTIAL PURPOSE. ANY ACTION AGAINST POSTPROCESS GROUP RELATING TO ANY BREACH OF WARRANTY OR OTHER ALLEGED PRODUCT, SOFTWARE OR SERVICE FAILURE MUST BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
9. Intellectual Property. Customer acknowledges that PostProcess and/or PostProcess Group is the sole owner of all Intellectual Property that relates to the products, Software and services and the use thereof. No right or license in Intellectual Property is granted to Customer by implication, estoppel or otherwise, unless, and only to the extent, required by law. “Intellectual Property” shall mean any and all PostProcess and, as relevant, PostProcess Group, copyrights and similar rights, patents, trademarks, trade secrets, trade names, logos, software, documentation, technical and manufacturing techniques, concepts, methods, designs, specifications and other proprietary information relating to the products, Software or services.
10. Confidentiality. Customer agrees to hold all confidential or proprietary information (including, without limitation, technology, software, ideas, know-how, processes, specifications, technical data, configurations, algorithms and trade secrets) that is disclosed by PostProcess (collectively, “Confidential Information“) in strictest confidence, and agrees not to use any Confidential Information for any purpose outside the purchase, sale and use of products, Software and services, and not to disclose the Confidential Information to any third party, except to those employees of Customer who are bound by written restrictions at least as protective of PostProcess’ Confidential Information as those provided herein, and who must be given access to the Confidential Information solely to use the products, Software or services in accordance with these Terms. Upon execution of a non-disclosure agreement satisfactory to PostProcess, its Confidential Information may also be disclosed to Customer’s consultants who have been retained to perform services in connection with the products, Software or services, provided that Customer shall remain liable for any breach of such agreement, or damage or loss incurred as a result of such breach, by any such consultants. In the event that Customer and PostProcess enter into a confidentiality agreement before or after the date upon which these Terms become applicable with respect to the same subject matter covered by these Terms, Customer’s obligations under these Terms and such separate agreement shall be cumulative.
11. Customer Identity. Customer hereby permits PostProcess to use the name and logo of Customer publicly to identify Customer as a customer.
12. Notices. All notices and other communications under or relating to these Terms shall be deemed effectively made or given if sent by email, facsimile, or national or international overnight courier service, in each case only where there is delivery receipt. Any such notice to PostProcess must be sent to the following address or a successor address properly notified to Customer:
PostProcess Technologies, Inc
2495 Main Street, Suite 615
Buffalo, New York 14214
13. General. The parties hereto are independent contractors and nothing herein shall be construed as creating a partnership or granting the right to bind the other. Customer may not assign or transfer these Terms or the rights granted hereunder, except with PostProcess’ prior written consent. Subject to the foregoing, Customer’s rights or obligations under these Terms shall be binding upon and inure to the benefit of each party’s respective permitted successors and assigns. PostProcess’ designated third-party beneficiaries may also enforce the Terms relating to their rights. PostProcess reserves the rights to terminate and revoke these Terms and terminate its relationship with Customer at any time following Customer’s breach of any of these Terms, and such termination shall be effective immediately upon written notice thereof to Customer. Upon termination for any reason, Customer shall immediately cease use of any Software not embedded within the Systems, delete or destroy all copies in its possession, including that which may have been provided to contractors or consultants, and execute and deliver to PostProcess a certification evidencing same. Neither party shall incur liability for the failure to perform, nor delay in performing, any obligation of the Agreement caused by force majeure. The unenforceability of any provision of these Terms adjudged by any court of competent jurisdiction shall in no way affect the enforceability of any other provision hereof, which shall remain in full force and effect. Any provision so adjudged to be unenforceable shall be deemed modified to the extent necessary to render it enforceable, preserving most fully permissible the intent of the parties set forth herein. Any failure by either party to exercise any right or remedy under the Terms does not constitute a waiver, or signify acceptance, of the event giving rise to such right or remedy. Any waiver or other alleged modification or amendment by PostProcess of any provision of these Terms must be in writing and signed by an authorized officer of PostProcess to be valid. Provisions which by their nature should survive termination of the parties’ business relationship and any agreements between or among them, including, but not limited to, Sections 3 (Machine Data), 4 (Restrictions), 8(b) (Limited Warranty Remedies and Exclusions), 8(c) (Warranty Disclaimer), 9 (Intellectual Property), 10 (Confidentiality), 13 (General) and 14 (Governing Law) shall so survive indefinitely. To the extent that these Terms are accepted electronically, Customer hereby waives any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law.
14. Governing Law. These Terms and all matters relating to these Terms (whether in contract, statute, tort (such as negligence), or otherwise), shall be governed by, and construed in accordance with: (a) the laws of the State of New York, USA (without giving effect to the choice of law principles thereof) for Customers located anywhere other than Europe and Russia; and (b) the laws of Germany (without giving effect to the choice of law principles thereof) for Customers located in Europe or Russia. For any Customer under the foregoing subpart (b), Customer irrevocably consents to the exclusive jurisdiction and venue of, and agrees that any action brought by it under these Terms or otherwise shall be brought only in a competent court in Frankfurt, Germany. Customer also hereby consents to the jurisdiction of any court(s) of competent jurisdiction in which PostProcess seeks equitable or injunctive relief for the breach of any of these Terms and in all cases waives any applicable right to a jury trial. Customer shall be liable for all costs incurred by PostProcess (including attorneys’ fees or other costs) in connection with the collection of any past due amounts owed by Customer and/or any action in which PostProcess prevails enforcing its rights and remedies under these Terms. The United Nations Convention for the Sale of Goods shall not apply to any transaction hereunder.
15. Entire Agreement. These Terms constitute the entire agreement and understanding between the parties regarding the terms of each product, Software or services sale, and supersede all prior and contemporaneous representations, promises, statements, agreements and understandings, written or oral, regarding the subject matter hereof and may only be modified and/or waived by a written agreement executed by both parties. Without limiting the foregoing, Customer agrees that any terms and conditions of Customer submitted prior to, contemporaneously with, or subsequent to any order for products, Software and/or services shall be inapplicable, and they are hereby rejected by PostProcess.