General Terms & Conditions of Sale

 

1.Applicability.

These terms and conditions of sale (these “Terms”) are the only terms that govern the sale of the goods (“Goods”) and services (“Services”) by CertaSite (“Service Provider”) to the individual or entity purchasing Goods and/or Services (“Customer”). The accompanying quotation or invoice provided by Service Provider (the “Invoice”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.

Customer acknowledges and agrees that these Terms are incorporated in, and are a part of, each quotation, purchase order, service order, invoice, release, requisition, work order, shipping instruction, specification, and/or any other document, whether expressed verbally, in written form, or electronic communication, relating to the Goods and/or Services. These Terms prevail over any of Customer’s terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms, and any other terms and conditions that may be proposed by Customer or that appear on or are referenced in any purchase order, release, facsimile, email, correspondence, acknowledgement, or other document or communication, even though such additional or different terms and conditions are issued subsequent to the date of this Agreement, will not apply. Fulfillment of Customer’s order or provision by Service Provider of the Services does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.

2.Goods and Services. The Goods will be delivered in connection with Service Provider’s performance of the Services or within a reasonable time after such performance. Service Provider shall provide the Services to Customer as described in the Invoice in accordance with these Terms. Service Provider shall use commercially reasonable efforts to meet any delivery or performance dates specified in the Invoice, but any such dates shall be estimates only.

3.Customer’s Obligations. Customer shall: (a) cooperate with Service Provider in all matters relating to the Good and Services and provide access to Customer’s premises, and such other facilities as may reasonably be requested by Service Provider, for the purposes of delivering the Goods and/or performing the Services; (b) respond promptly to any Service Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Service Provider to deliver the Goods and/or perform the Services in accordance with the requirements of this Agreement; (c) provide such Customer materials or information as Service Provider may request to deliver the Goods and/or carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; and (d) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Goods and Services.

4.Customer’s Acts or Omissions. If Service Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or any of its agents, subcontractors, consultants, or employees, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

5.Change Orders.

Customer may request changes to the Goods and/or Services provided by Service Provider by submitting a written request to Service Provider referencing the applicable Invoice and setting forth in detail the requested changes to the Goods and/or Services. Service Provider will use commercially reasonable efforts to accommodate any such request provided that Service Provider reserves the right to reject such request in its sole discretion. Service Provider shall promptly advise Customer in writing of the effect on price and delivery date. Service Provider shall not be required to institute any Customer-dictated change until the parties have agreed to an equitable adjustment to the price and/or delivery date. In the event that such request is approved by Service Provider, the change to the Goods and/or Services shall be documented in a written change order signed on behalf of both parties. Service Provider may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis.

Notwithstanding anything to the contrary contained in this Agreement, Service Provider may, from time to time, change the Goods and/or Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Goods or Services, or the fees or any performance dates set forth in the Invoice. Prices for Goods and Services reflected in any publication including, but not limited to, Service Provider’s marketing materials and websites, are subject to change without notice.

6.Fees and Expenses; Payment Terms.

In consideration of the delivery of Goods and/or provision of Services by Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Invoice. Customer agrees to reimburse Service Provider for all reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the delivery of Goods and/or performance of the Services.

Except as otherwise expressly set forth in the applicable Invoice, Customer shall pay all invoiced amounts due to Service Provider within thirty (30) days from the Invoice date.¹ Customer shall make all payments hereunder in immediately available funds in US dollars. In the event payments are not received by Service Provider by the applicable due date, Service Provider may: (i) charge interest on such unpaid amounts at a rate of eight percent (8%) or, if lower, the maximum amount permitted under applicable law from the date such payment was due until the date paid, and/or (ii) suspend delivery of all Goods and performance of all Services until payment has been made in full. Customer will pay all court costs, attorneys’ fees, and other costs and expenses incurred by Service Provider in collecting past due amounts, including interest. Customer shall not withhold payment of any amounts due and payable by reason of any setoff of any claim or dispute with Service Provider, whether relating to Service Provider’s breach, bankruptcy, or otherwise.

7.Taxes. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.

8.Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Service Provider in the course of performing the Services (collectively, the “Deliverables”) shall be owned by Service Provider. Service Provider hereby grants Customer a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.

9.Confidential Information. All non-public, confidential, or proprietary information of Service Provider, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by Service Provider to Customer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with the delivery of Goods and/or the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of Service Provider. Confidential Information does not include information that is: (a) in the public domain other than as a result of the Customer’s breach of this Section; (b) known to Customer at the time of disclosure, as established by documentary evidence; or (c) rightfully obtained by Customer on a non-confidential basis from a third party. Customer agrees to use the Confidential Information only to make use of the Services and Deliverables. Service Provider shall be entitled to injunctive relief for any violation of this Section.

10.Representation and Warranty.

With respect to the Goods, Service Provider assigns to Customer, to the extent assignable, any warranties that are made by manufacturers and suppliers of the Goods. OTHERWISE, GOODS FURNISHED HEREUNDER ARE FURNISHED AS-IS, WHERE-IS, WITH NO WARRANTY WHATSOEVER. With respect to the Services, Service Provider represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.²

Customer shall inspect the Goods and Services upon receipt. Service Provider shall not be liable for a breach of the warranty set forth in Section 10(a) unless Customer gives written notice of the defective Goods and/or Services, reasonably described, to Service Provider within three (3) days of the time when Customer discovers or should have discovered that the Goods and/or Services were defective.

Subject to Section 10(b), Service Provider shall, in its sole discretion, either: (i) re-perform such defective Services; or (ii) credit or refund the price of such defective Services at the pro rata contract rate. Notwithstanding anything to the contrary herein, Service Provider reserves the right to dispute any claims for breach of warranty. Service Provider shall not be liable for a breach of the warranty set forth in Section 10(a) if: (x) the defect arises because Customer failed to follow Service Provider’s oral or written instructions as to the storage, installation, use, or maintenance of the Goods or Services; or (y) Customer alters or repairs the Goods or Services without the prior written consent of Service Provider.

THE REMEDIES SET FORTH IN SECTION 10(c) ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SERVICE PROVIDER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 10(a).

11.Disclaimer of Warranties.

EXCEPT FOR THE WARRANTY EXPRESSLY SET FORTH IN SECTION 10(a) ABOVE, SERVICE PROVIDER MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with the Goods. Third Party Products are not covered by the warranty in Section 10(a). FOR THE AVOIDANCE OF DOUBT, SERVICE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT.

12.Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL SERVICE PROVIDER, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, LOSS OF DATA, DIMINUTION IN VALUE, LOST PROFITS OR BUSINESS OPPORTUNITIES, OR INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, LOSSES, COSTS, OR EXPENSES WHATSOEVER, OR FOR COSTS OF COVER OR ATTORNEY OR EXPERT WITNESS FEES, REGARDLESS OF WHETHER ANY OF THE FOREGOING WERE FORESEEABLE, WHETHER SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND/OR WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT, OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT PAID OR PAYABLE TO SERVICE PROVIDER BY CUSTOMER PURSUANT TO THE APPLICABLE INVOICE. THIS SECTION 12 EXPRESSLY SURVIVES ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT.

13.Termination. In addition to any remedies that may be provided under this Agreement, Service Provider may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.

14.Waiver. No waiver by Service Provider of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Service Provider. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

15.Force Majeure. Service Provider shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

16.Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement. Service Provider may, without Customer’s consent, delegate, assign, or subcontract any or all of its duties, rights, or obligations under this Agreement.

17.Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

18.No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

19.Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of Ohio, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of Ohio.

20.Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of Ohio, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

21.Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Invoice or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). All Notices shall be deemed to have been given (a) when delivered in person, (b) on the day following delivery if sent by a nationally recognized overnight courier, or (c) on the fifth day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

22.Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

23.Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidential Information, Limitation of Liability, Governing Law, Submission to Jurisdiction, and Survival.

24.Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.