ELTRA — STANDARD TERMS AND CONDITIONS FOR THE SALE OF GOODS

SCOPE

1. These terms and conditions govern the sale by Eltra of Eltra Products and the license of its Software to the Customer.

AGREED TERMS

1.       DEFINITIONS

“Product” means any hardware product and its associated Software provided by Eltra.

“Software” means software programs and firmware provided by Eltra, and related updates, upgrades, and documentation.

2.       ORDERS

2.1.    Customer must place a written purchase order with Eltra specifying Products by part number, price, and desired delivery date.

2.2.    Eltra will respond with a written order acknowledgement, confirming or rejecting such order. Eltra may require minimum order and packing quantities, or other terms and conditions applicable to the order. Customer will be deemed to have accepted the terms and conditions in the order acknowledgement if it does not reject such acknowledgement within 24 hours of receipt.

3.       DELIVERY

3.1.    Eltra will ship Products and Software on the delivery date specified in the written order acknowledgement.

3.2.    Delivery occurs when Eltra places Products or Software at Customer’s disposal in accordance with the Incoterms or other shipping terms specified in Eltra’s order acknowledgment. Title and risk of loss and damage to Products pass to Customer upon delivery. The Products and Software are deemed accepted upon delivery.

3.3.    Customer may not cancel or reschedule orders or delivery of any Product or Software. Customers may not return Products or Software except as provided in Section 8 (Warranty) and as permitted by applicable law.

3.4.    Customer must notify Eltra of any shipping errors within 8 days from the invoice date. Eltra will verify the claim and ship replacement parts or correct the error, at its option.

3.5.    Lead times and delivery dates provided by Eltra are estimates only. Eltra is not liable for any loss, damage, cost, or expense for any failure to deliver in accordance with the given lead time or delivery date. Eltra may make partial deliveries which may be separately invoiced. Delivery delay will not relieve the Customer of its obligation to pay for Products or Software or to accept subsequent deliveries.

4.       PRICES AND PAYMENT

4.1.    Prices exclude delivery charges and are valid for the period indicated on the quotation. If special shipping instructions are agreed Eltra will bill additional charges separately.

4.2.    Prices exclude sales, value added, GST, withholding, or other tax, or customs duties or fees, which Customer shall pay in addition to the purchase price, if applicable. If Customer claims exemption from tax, Customer must provide a certificate of exemption acceptable to the relevant taxing authority. Customer shall provide VAT-ID numbers to support VAT exemptions of intra-community supplies where appropriate as governed by applicable national legislation.

4.3.    Customer shall notify Eltra immediately if the VAT-ID number provided becomes invalid or is changed or amended in any way. Eltra reserves the right to retroactively charge VAT if VAT has been incorrectly exempted.

4.4.    Payment is due 30 days from invoice date unless differently agreed in writing between Customer and Eltra. Eltra reserves the right to charge a fee on late payments calculated at the rate of 2.0% per month or the maximum amount allowable by law, whichever is less, unless agreed otherwise. All payments must be in EURO unless differently agreed in writing between Customer and Eltra. Each shipment (including partial shipments) constitutes an independent transaction and will be separately invoiced. Customer must pay all invoices as specified without regard to other shipments, deduction, or setoff. Eltra may fail to extend credit, or may change credit or payment terms, at its discretion based on Customer’s financial condition or payment record. Eltra may discontinue performance if Customer fails to pay any sum due, or if Customer fails to cure any other breach of this or any other Eltra agreement upon written notice. Customer must reimburse Eltra for any expenses incurred in collecting any amounts due under this agreement, including attorneys’ fees.

5.       WARRANTY

5.1.    Except as otherwise required by law, the following warranties will apply to Products and Software paid for by Customer (and not to indirect purchasers and users) for 12 months after delivery (“Warranty Period”):

(A)         Eltra warrants against material defects in the production units of the Product and workmanship. Eltra further warrants that the Products will substantially conform to Eltra’s relevant published specifications in effect on the date Eltra ships Customer’s order (“Specifications”).

(B)         Eltra warrants that Software will not fail to execute its programming instructions due to defects in materials and workmanship when properly installed and used on the hardware designated by Eltra. Eltra further warrants that Software will substantially conform to the Specifications. Eltra does not warrant that Software will operate in hardware and software combinations selected by Customer, or meet requirements specified by Customer.

5.2.    If Eltra confirms defects or non-conformance to Specifications during the Warranty Period, Eltra will, at its option, repair or replace the affected Products or Software, or refund the net purchase price of the affected Products or Software. Customer shall abide by Eltra’s policies concerning return of materials.

5.3.    Some Products may contain remanufactured parts equivalent to new in performance. Unless Eltra otherwise agrees in writing, Eltra may make process or materials changes affecting the performance or other characteristics of Product and Software. Product and Software supplied after such a change will continue to meet Eltra’s published Specifications, but may not be identical to Product or Software supplied as samples or under prior orders.

5.4.    The above warranties do not apply to and Eltra makes no warranties with respect to: die, or any other Products or Software which are not finished and fully encapsulated, including prototypes, reference designs and software; defects resulting from improper or inadequate maintenance; higher assembly, use with Customer or third party supplied software, interfacing or supplies; unauthorized modification; improper use or operation outside of the Specifications; abuse, negligence, accident, loss or damage in transit; improper site preparation; unauthorized maintenance or repair. Eltra does not warrant that any Software is error free or that Customer will be able to operate the Software without problems or interruptions. Eltra does not warrant that the Software or any equipment, system or network on which such Software is used will be free of vulnerability to intrusion or attack.

5.5.    Products and Software which are not finished or fully encapsulated are sold “AS IS.” The above warranties are exclusive and no other warranty, whether written or oral, is expressed or implied. Except for the limited warranty stated in this section, all warranties, express, statutory or implied, with respect to any product, software, service, or other items delivered under these terms, including the implied warranties of merchantability, title, noninfringement and fitness for a particular purpose, are disclaimed.

6.       LICENSES

6.1.    Eltra and its third party suppliers own and retain all rights, title, and interest in the Software. Third party suppliers may protect their rights in the Software in the event of any violation of applicable license terms. Software provided by Eltra to Customer is licensed, not sold.

6.2.    Eltra grants Customer a non-transferable, worldwide, non-exclusive limited license to use, perform, display, reproduce, and distribute the Software in accordance with the documentation provided therewith and solely as incorporated into, or for use in connection with, other Products (and not for use on a standalone basis) directly, or through resellers by means of multiple tiers of distribution, to end users. Documentation provided with or for Software may include license terms provided by Eltra and Eltra’s third party suppliers, which will apply to the use of Software and take precedence over these license terms to the extent of any conflict. In the absence of documentation specifying the applicable license, Customer is granted the right to use one copy of the Software on one machine or instrument, or as otherwise indicated on the quotation. Eltra further grants to Customer a non-exclusive, worldwide, non-transferable license to sublicense to Customer’s resellers only its right to distribute the Software as set forth above. The licenses granted in this Section are subject to the restrictions set forth below. Customer may sublicense the right to use and reproduce the Software to its contract manufacturers (“CMs”) or original design manufacturers (“ODMs”) for purposes of manufacturing Customer’s products, provided that each such CM and ODM agrees to abide by the terms hereof and Customer shall remain responsible for any failure of its CMs or ODMs to so comply.

6.3.    Customer shall not distribute or disclose the Software, nor permit any reseller or third party to distribute or disclose the Software, except pursuant to an agreement with terms at least as protective as those set forth herein. The sale of any Product or Software by Eltra shall not in any way confer upon Customer, or upon anyone claiming under Customer, any license (expressly, by implication, by estoppel or otherwise) under any patent claim of Eltra or others covering or relating to any combination, machine or process in which such Product or Software is or might be used, or to any process or method of making such Product or Software. Except and only to the extent as expressly permitted herein , or required to be permitted by applicable law, Customer shall not itself or allow any reseller or third party to: (A) reproduce the Software; (B) modify, incorporate into or with other software, or create a derivative work of any part of the Software, (C) reverse-engineer any Products Software or decompile, disassemble, or otherwise attempt to derive the source code of the Software except to the extent such restriction is prohibited by applicable law; (D) distribute, sublicense, lease, rent, loan or otherwise transfer the Software to any third party; (E) remove Software from any Product into which such Software has been embedded; or (F) use the Software to provide processing services to third parties or otherwise use the Software on a service bureau basis, electronically distribute or timeshare the Software or market the Software by interactive cable or remote processing services.

6.4.    Customer's licenses hereunder will terminate upon Customer’s breach of these license terms. Customer must destroy all copies of the Software immediately upon such termination and shall provide a certificate of such destruction upon Eltra’s request. If Software or technical data is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the Government's rights in Software, technical data and accompanying documentation shall be only the customary commercial licenses provided to end user Customers as set forth in these Terms.

6.5.    Customer agrees that it will not remove any copyright notices, proprietary markings, trademarks or trade names from any Product or Software. Customer shall reproduce Eltra’s copyright notice and all other proprietary notices on all copies of Product and Software, including copies in machine-readable form. All copies of Software (including any derivative works) shall be and remain the property of Eltra or, if applicable, Eltra’s licensor.

6.6.    Customer shall not use the name Eltra or any of Eltra’s trademarks or service marks as part of its corporate or other legal name, or as part of the name under which it conducts business. In addition, Customer shall not have the right to use the Eltra name, trademarks or service marks in any other way unless and until a Eltra trademark license has been duly executed between Customer and Eltra.

6.7.    Unless otherwise expressly agreed in writing by Eltra, Products purchased and Software licensed are only to be distributed by Eltra’s authorized distributors unless such Products or Software are or will be integrated in or used in conjunction with Customer’s products which include or use Eltra hardware Products. Customer agrees that it will not purchase Products and license Software from any source other than Eltra or a Eltra authorized distributor unless such Products or Software are or will be integrated in or used in conjunction with the applicable vendor’s product.

6.8.    Eltra may terminate the license rights in this section upon any breach of this Agreement by Customer, provided Customer has first been provided written notice and a reasonable opportunity to cure. This license shall survive with respect to Customer’s sublicense to any end user for Software distributed prior to such termination.

7.       LIMITATION OF LIABILITY

7.1.    For purposes of the limitations of liability set forth herein, “Eltra” shall include Eltra, its affiliates, subsidiaries, and the directors, officers, employees, agents, representatives, subcontractors and suppliers of each of them.

7.2.    Subject to applicable law and notwithstanding anything else in these terms, in no event will Eltra, be liable for special, incidental, indirect or consequential damages (including without limitation downtime costs, loss of data, restoration costs, lost profits, or cost of cover) regardless of whether such claims are based on contract, tort, warranty or any other legal theory.

7.3.    Except for Eltra’s obligation to make warranty refunds under section 9 (which is limited to the product or Software purchase price), and to the extent permitted by applicable law, Eltra’s liability to Customer is limited to the lesser of (A) the amount actually paid by Customer to Eltra for the Product or Software that is the subject of such damages, or (B) $100,000.00 USD. Multiple claims will not enlarge this limit. This section applies whether or not damages were foreseeable, even if Eltra has been advised of the possibility of such damages, and notwithstanding any failure of essential purpose of any exclusive remedy provided in these terms. The limitations set forth in this section will not apply to damages for bodily injury or death proximately caused by Eltra, for which Customer has the right to proven direct damages.

7.4.    The remedies in these terms are Customer's sole and exclusive remedies.

8.       CONFIDENTIALITY

8.1.    Customer may acquire knowledge of information relating to Eltra’s business, Products or Software (“Eltra Confidential Information”) and agrees to keep such Eltra Confidential Information in confidence. Customer agrees not to use the Eltra Confidential Information except as permitted by Eltra in writing. Customer agrees not to copy, alter or directly or indirectly disclose any Eltra Confidential Information. Customer agrees to use the degree of care and means that it uses to protect its own information of like kind, but in no event less than reasonable care to prevent the disclosure or unauthorized use of Eltra Confidential Information. Customer may disclose Eltra Confidential Information which is required to be disclosed pursuant to an enforceable requirement of a government agency or law so long as Customer provides prompt notice to Eltra of such requirement prior to disclosure. All Eltra Confidential Information is and shall remain the property of Eltra. Upon Eltra's written request, Customer shall return, transfer or assign to Eltra all Eltra Confidential Information and all copies thereof.

9.       GENERAL

9.1.    Bankruptcy. If Customer becomes insolvent, is unable to pay its debts when due, files for bankruptcy, is the subject of involuntary bankruptcy, has a receiver appointed, or has its assets assigned, Eltra may cancel any unfulfilled obligations.

9.2.    Notices. All notices required or permitted under this agreement shall be in writing and addressed to Eltra or to an authorized Eltra representative, and will be considered given when (A) delivered personally, (B) sent by commercial overnight courier with written verification receipt, or (C) three (3) days after having been sent, postage prepaid, by first class or certified mail.

9.3.    Force Majeure. Eltra will not be liable for performance delays or for non-performance due to events of Force Majeure, and Eltra’s performance will be excused for the time that the Force Majeure continues. If such an event occurs, Eltra may, at its option, (i) extend the Delivery date or (ii) allocate its available supply among its customers. “Force Majeure” means any act or occurrence that is beyond Eltra’s reasonable control, including, but not limited to, fire, flood, earthquake or other natural disaster, shortages of materials, labor disputes, war or civil disturbance, declared acts of terrorism, disruption of normal production, inadequate yield of Products despite reasonable efforts, or an interruption of the means of transportation.

9.4.    Assignment. Customer shall not assign this agreement or any of its rights or delegate any of its duties under this agreement without the prior written consent of Eltra. Subject to the foregoing, this agreement will be binding upon, enforceable by, and inure to the benefit of the parties and their respective successors and assigns. Any attempted assignment in violation of this Section shall be null and void.

9.5.    Legal Compliance. Customer shall comply with applicable federal, state, local laws, regulations and ordinances, and other applicable laws and regulations. Eltra may suspend performance if Customer is in violation of applicable laws, regulations, or ordinances. Customer acknowledges that any Products, Software, or technical information (including, but not limited to services and training) provided hereunder may be subject to export controls, including but not limited to export controls administered under the U.S. Export Administration Regulations (EAR). Upon delivery of such Products, Software or technical information (including, but not limited to services and training), Customer shall be responsible for ensuring compliance with all applicable export laws and regulations relating to the export thereof, and shall not export or re-export any Products, Software or technical information (including, but not limited to services and training) received from Eltra in violation of any applicable law. Customer agrees that none of such items, nor any direct product therefrom, is being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to prohibited or embargoed countries, nor be used for any prohibited end-use, such as nuclear activities, chemical/biological weapons, or missile projects, unless expressly authorized by the U.S. Government. If requested, Customer agrees to sign written assurances and other export-related documents as may be required to comply with U.S. export regulations or any other governmental regulatory agency requirement.

9.6.    Governing Law, Attorneys Fees.

(A)         This agreement will be interpreted under Italian law, notwithstanding the choice of law rules of any jurisdiction. The jurisdiction and venue for any action arising out of or relating to the subject matter of this agreement shall be the Courts of Milan, and all parties hereby submit to the personal jurisdiction of such courts.

(B)         Notwithstanding any provision in this agreement, Eltra or Customer may request any judicial, administrative, or other authority to order any provisional or conservatory measure, including injunctive relief, specific performance, or other equitable relief, prior to the institution of legal or arbitration proceedings, or during the proceedings, for the preservation of its rights and interests or to enforce specific terms that are suitable for provisional remedies.

(C)          This agreement will not be governed by the following, the application of which is hereby expressly excluded:

(1)              the conflict of law rules of any jurisdiction,

(2)              the United Nations Convention on Contracts for the International Sale of Goods, and

(3)              the Uniform Computer Information Transactions Act, as enacted in any jurisdiction.

(D)         The prevailing party shall be awarded its reasonable attorney fees, and costs and expenses incurred in any litigation arising under this agreement.

9.7.    Waiver. Neither party's failure or delay to exercise any of its rights under this agreement will be deemed a waiver of forfeiture of those rights.

9.8.    Severability. This agreement shall be applied to the extent permitted by applicable law. To the extent that any provision of this agreement is determined to be illegal or unenforceable, the remainder of this agreement will remain in full force and effect.

9.9.    Safety Critical Uses. Eltra’s products and Software are not specifically designed, manufactured, or authorized for sale as parts, components, or assemblies for safety critical applications, including the planning, construction, maintenance, or direct operation of a nuclear facility or for use in military, navigation, and aviation, or medical devices or applications. Customer is solely liable, and shall indemnify and hold Eltra harmless for all loss, damage, expense, or liability in connection with such use.

9.10. Government Contracting. Unless otherwise separately agreed in writing by Eltra, no provision herein shall be deemed an acceptance of any provisions required in any U.S. Government contract or subcontract relating thereto (“Government Contract”) nor shall any provision of any Government Contract become part of this agreement, imposed upon or binding on Eltra.

9.11. End of life. Eltra may, without liability, terminate production of any Product and Software and may, in that event, offer certain existing Customers an opportunity to make a final buy of the Product or Software. Eltra must receive an order for the final buy within the Eltra stated notice period, with shipment to be completed as scheduled by Eltra. Final buy Products and Software shall under all circumstances be non-cancellable and non-returnable.

9.12. Entire agreement. This agreement, together with any special terms provided on Eltra’s valid quotation, constitute the exclusive and entire agreement between Eltra and Customer and may not be changed except by an amendment signed by Eltra’s and the Customer’s authorized representatives. This agreement supersedes any previous communications, representations or agreements between the parties, regarding the sale of Products and the license of Software.

 

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