EMEA Terms and Conditions

1. Scope and Definitions. These Terms and Conditions are an integral part of the attached Quotation document. Together, they constitute an offer to contract that may be accepted by Purchaser, upon which they shall constitute the “Contract.” “Seller” means Spraying Systems Belgium S.R.L./B.V., throughs its Fluid Air Division, registered with the Crossroads Bank of Enterprises under the company number 0463.627.930 and whose registered office is located at 9800 Deinze, Souverainestraat 5 (RPM/RPR Gent); “Purchaser” means the person, firm or corporation to whom the Quotation is addressed; “Equipment” means those articles, materials, supplies, drawings, data, computer software programs and other property described in the Quotation together with all services performed incidental to the sale thereof; and “Party” and “Parties” mean Seller and Purchaser, individually and collectively, respectively. Captions are for convenience only and are not part of the Quotation. Purchaser agrees to these Terms & Conditions. 

2. General.
When accepted, the Quotation, of which these Terms and Conditions are an integral part, supersedes all prior documents, agreements, or understandings, and all subsequent writings by Seller. The Quotation contains the complete agreement between the Parties, and its terms may not be modified, explained or waived by Purchaser’s acceptance or purchase order, a course of dealing, Seller’s performance, or in any other manner unless approved in writing by a duly authorized representative of Seller. Any reference contained herein to Purchaser’s specifications or order is solely for the purpose of describing the goods to be provided or the services to be performed and no terms contained therein shall be binding on Seller unless agreed to in writing by a duly authorized representative of Seller. If any provision of the Quotation shall be determined to be unenforceable by a court of competent jurisdiction, then it shall be deemed severed, leaving the balance of the document in full force and effect. Purchaser agrees that the Quotation and these Terms and Conditions of Sale apply exclusively.  

3. Non-Solicitation.
In the interest of Seller and for protection of confidential information, during the term of the Contract and for a period of twelve months thereafter, Purchaser shall not solicit the services of any person who is an employee of Seller and of whom Purchaser has become aware during the term of this Contract, nor solicit any such employee of Seller to terminate employment, nor agree to hire any such employee of Seller into employment or engagement with Purchaser or any other company, individual or entity.   

4. Delivery.
Unless otherwise stated in the Quotation, delivery of the Equipment will be Incoterms F.O.B. Seller’s plant or Seller’s vendors’ plants. Equipment delivered by Seller shall remain Seller’s property until the purchase price, including all invoiced costs, has been paid in full. During the period Seller retains title, Purchaser may not pledge or grant a security interest in the delivered Equipment. The Quotation states all other delivery, invoicing, shipment, and payment terms.

5. LIMITED WARRANTIES.  
a) Material and Workmanship Limited Warranty.
Seller warrants that all Equipment of Seller’s own manufacture to be supplied hereunder will be complete in all its parts and, for the warranty period specified in the Quotation (or, if none is specified, for one year from the date of shipment of the Equipment) (either, the “Warranty Period”), will be free from defects in material or workmanship caused by Seller and arising under normal and proper operating conditions; and that such Equipment will be delivered free from any lawful security interest or other lien or encumbrance known to Seller, except security interests or liens or encumbrances arising hereunder.  
b) Performance Limited Warranty.
Seller warrants that, during the Warranty Period, all Equipment of its own manufacture will meet all expressly guaranteed performance characteristics stated in the Quotation.  
c) EU-OSHA Limited Warranty.
Seller warrants that Equipment of its own manufacture, when shipped, will comply with European Union (“EU”) Directive 2006/42/EC on machinery, and amending Directive 95/16/EC, and all regulations and standards promulgated thereunder in effect on the date of the Quotation and governing the sale or offering for sale of the Equipment in the EU. Seller does not warrant the Equipment will so comply as used by Purchaser. Purchaser is solely responsible for conditions in Purchaser’s facility that may affect the Equipment’s compliance with relevant EU or national directives, laws, regulations, rules, or standards when in use.  
d) Field Representative Services Limited Warranty.
Seller warrants that services performed by a field service representative furnished pursuant to Section 10, if any, will be performed in a competent, diligent manner and in accordance with generally acceptable standards for such services in the country of Purchaser’s principal place of business. All claims of defective field service under this Warranty must be made to Seller in writing within thirty (30) days from discovery and, in any event, within ninety (90) days from the date said services are completed, and all allegedly defective work must be held for Seller’s inspection. Purchaser waives its right to bring any court action based upon any claim not made within the prescribed period.  
e) Equipment Not Made By Seller Limited Warranty.
Equipment, parts, and accessories made by third party manufacturers and supplied hereunder by Seller are warranted only to the extent of the original manufacturer’s warranty to Seller, if any.

6. Limitation on Seller’s Liability and Damages, and Commencement of Actions.  
a)
Seller’s obligation and Purchaser’s remedy for any breach of a warranty discovered during the Warranty Period shall be limited to repair or replacement of such Equipment or parts thereof as is necessary to cure the breach or the re-performance of any defective services. Purchaser shall pay all transportation charges in connection with the return or replacement of Equipment or parts. Seller shall have no liability for breaches of warranty discovered outside the Warranty Period.  
b) In the event that neither repair, replacement, nor re-performance are sufficient to cure the breach of warranty, Purchaser’s sole and exclusive remaining remedy will be a refund of the purchase price of the non-conforming Equipment or part thereof upon Purchaser’s return of the Equipment or part to Seller’s plant.  
c) Notwithstanding the foregoing, all Seller’s warranties in the foregoing Section 5 shall be void, and Seller shall have no obligation thereunder, in the event any party other than Seller modifies or attempts repairs to the Equipment, or the Equipment is improperly stored, installed, removed, used, operated, or applied after delivery to Purchaser.  
d) Purchaser expressly agrees that:  
     i)       SELLER MAKES NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NOR ANY OTHER WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, NOR ANY AFFIRMATION OF FACT OR PROMISE REGARDING THE EQUIPMENT OR ANY SERVICES PERFORMED UNDER THE QUOTATION OR OTHERWISE, and  
     ii)      Purchaser is entering into the Contract solely based on the commitments expressly set forth in the Quotation.  
e) Without limiting any other provision of the Contract, and to the extent permitted by applicable law, in no event shall Seller be liable for special, punitive, consequential, or incidental damages, nor for loss of anticipated profits, even if notified of the possibility of such damages, and irrespective of whether said liability would arise under tort, contract, strict liability, or any other legal theory or basis.  
f)
Notwithstanding any statutes of limitation to the contrary and irrespective of when the breach is discovered, any action for breach of warranty relating to the subject matter of the Quotation must be filed within two (2) years from the date of delivery of the Equipment. Any claim not made within the prescribed period shall be deemed waived. Purchaser expressly agrees to this limitation and agrees that it is an essential part of the Parties’ Contract.

7. Definition of Acceptance and Waiver of Right to Revoke Acceptance.
The Parties agree as follows:  
a) Acceptance shall occur when Purchaser fails to reject Equipment within thirty (30) days after delivery thereof, or within fourteen (14) days after visual inspection of the Equipment, whichever occurs first. Purchaser may not reject Equipment that substantially conforms to Seller’s specifications.  
b) After acceptance per Section 7(a), Purchaser waives its right to revoke acceptance, it being the intent of the Parties that Purchaser’s remedies for any nonconformity detected after acceptance be limited to those expressly provided herein for breach of warranty.

8. Cancellation.
If Purchaser cancels or modifies any purchase order, in whole or in part, and unless otherwise agreed in writing, Seller may retain all payments received through the date of cancellation or modification as liquidated damages and not a penalty, and Purchaser shall further reimburse Seller for all applicable costs then incurred in performing under the Quotation, including costs of purchased materials, engineering costs, and a reasonable allowance for profit. Purchaser shall have no right to cancel a purchase order for Equipment made to Purchaser’s custom specifications (“Custom Order”) that cannot, in Seller’s reasonable discretion, be resold. However, in the event Seller agrees to the cancellation of a Custom Order, Seller will charge, and Purchaser shall pay, all costs and charges incurred including costs of purchased materials, engineering, manufacturing and assembly costs including labor and overhead, shipping, receiving, and storage and any further additional costs incurred due to the cancellation.

9. Intellectual Property Indemnity.  
a)
Subject to Section 9(c), Seller shall defend, indemnify, and hold harmless Purchaser, its officers, employees, agents, successors, and assigns, from and against all claims based on alleged infringement of a third party’s patent, trademark, copyright or other proprietary rights and arising out of the purchase of Equipment of Seller’s own manufacture. Purchaser shall permit Seller to assume the full direction and control of the defense against such a claim and shall provide (at Seller’s expense) all reasonable authority, information and assistance for such defense.  
b) Seller may, in its sole discretion, notify Purchaser in writing that Seller chooses not to contest such claim of infringement, and shall have the right, at its own expense, either (i) to procure for Purchaser the right to continue using said Equipment, without liability for infringement, or (ii) to replace said Equipment with non-infringing Equipment that accomplishes the same purposes as the replaced Equipment, or (iii) to modify said Equipment, so that it becomes non-infringing, or (iv) to remove said Equipment and refund to Purchaser the purchase price thereof. Purchaser’s remedies for damages arising from said infringement or claimed infringement are exclusively limited to those set forth in this paragraph.  
c) Purchaser shall notify Seller in writing of any claim for indemnification under this Section 9 as soon as practicable and not later than thirty (30) days after receipt by Purchaser of reasonable notice of an indemnifiable claim. Purchaser’s failure to provide such notice shall relieve Seller of all obligations under this Section 9.  
d) Notwithstanding the foregoing, to the extent any claim indemnifiable under Section 9 arises from the manufacture or use of Equipment conforming to Purchaser’s own designs and specifications, or Purchaser’s modification of the Equipment, or Purchaser’s use of the Equipment in combination with any equipment, software, machine, process or method not supplied by Seller or for any particular application or purpose, Purchaser shall defend, indemnify, and hold harmless Seller in the same manner as set forth in Section 9(a), (b) and (c).

10. Installation and Erection.
The Equipment shall be transported, installed on the foundation and connected at Purchaser’s expense, unless otherwise expressly agreed herein. Purchaser shall furnish all necessary supervision, labor, supplies, and facilities.  
a)
Upon request of Purchaser, Seller will furnish a field service representative, for whom Purchaser shall pay Seller’s then-current rate per day plus actual living and traveling expenses, to assist Purchaser during its installation, erection, and starting of the Equipment and in the training of Purchaser’s personnel in the Equipment’s use. For the purpose of this paragraph, a day shall mean any one (1) eight (8) consecutive hour shift, or part thereof. Travel, working and stand-by time and travel and living expenses shall be charged from the time Seller’s representative leaves his home office or other equivalent starting point until his return thereto.  
b) The field service representative furnished by Seller will be qualified only to assist in the installation and erection of the Equipment and to train Purchaser’s personnel in its use, and shall not provide any other services to Purchaser without Seller’s written consent, in which case it is understood and agreed that, in such case, Purchaser shall be liable for all actions of the field service representative as if s/he were Purchaser’s employee, shall maintain adequate insurance coverage for the field service representative, and shall hold harmless and indemnify Seller from and against any and all claims arising out of said representative’s acts or omissions while acting in such capacity.  
c) Seller shall present time sheets showing hours worked and expenses incurred to Purchaser for approval insofar as practical. Such approval shall, nevertheless, not be required for invoicing by Seller of the field service representative’s time and expenses as shown on said timesheets or for Purchaser to incur the obligation to pay all invoiced amounts. All services provided by Seller hereunder shall be promptly inspected and accepted upon completion thereof and prior to the field service representative’s leaving Purchaser’s premises. Payment for Seller’s charges shall be due within thirty (30) days upon presentation of invoices.

11. Purchaser’s Drawings & Specifications.
Seller is furnishing only the Equipment specified in the Quotation and does not assume any responsibility for other equipment or material not supplied by Seller, nor the effect thereof on the overall operation of the system of which the Equipment is a part. Accordingly, any comments from Seller regarding Purchaser’s drawings or specifications are responsive only and Seller shall not be liable therefore. The confidentiality of Purchaser’s drawings and specifications shall be protected as provided in Section 16.

12. Seller Drawings and Engineering Data.
Prints of Seller’s drawings and data representing Seller’s application of the purchased Equipment to the requirements of the Contract may be submitted for approval. Upon the return of such prints within fifteen (15) working days, the requested changes, if any, will be made to correct misinterpretations. All other changes will be subject to added cost and delivery considerations. Final prints of Seller drawings will be furnished, after which any Purchaser-requested changes will be subject to added cost and delivery considerations. Seller drawings and data shall remain the property of Seller and may not be reproduced or distributed without Seller’s written approval.

13. Design Changes.
While Seller reserves the right where possible to include changes in design or material which are improvements, Seller cannot be responsible for including improvements effected after beginning of production on Equipment. Design changes suggested by Purchaser after beginning of production shall require Seller’s agreement, including agreements as to prices and shipping schedules.

14. Delay.
In case of delay by Purchaser in furnishing complete information, delivery dates may be extended for a reasonable time depending on factory conditions, and Seller shall be reimbursed by Purchaser for the time and expenses caused by such delay. Seller shall not be responsible for de minimis or excusable delays in performance, nor shall Purchaser refuse to accept delivery on account of such delays. Excusable delays include, without limitation, delays due to accidents, pandemics, strike or other labor difficulties, fire or other casualty, governmental controls or other forms of interventions, delays in transportation, unavailability of necessary labor or material, and any other cause beyond Seller’s reasonable control.

15. Grant of Non-Exclusive, Non-Transferable License.
Seller grants Purchaser a non-exclusive, non-transferable license to use, solely with the Equipment, any computer software programs (the “Programs”) accompanying the Equipment. Purchaser may copy the Programs to the extent necessary for archival back-up. Except for such back-up, and to the fullest extent allowed by law, Purchaser agrees not to and shall not, in whole or in part, without the prior written consent of the Seller (a) copy, modify, sublicense, allow the use of, or otherwise transfer the Programs or any copies, modifications, or merged portions thereof, or (b) use the Programs for any purpose or application other than in conjunction with using the Equipment for the purposes for which sold. No other licenses are granted other than the license expressly set forth in this Section 15. Purchaser acknowledges that Seller is the sole owner or licensee of all the intellectual property rights contained, related to or arising from the Equipment and the Programs and Purchaser will take all necessary actions to ensure the proper protection, registration and ownership of such intellectual property rights by Seller.

16. Confidentiality.
Each Party shall maintain in confidence all proprietary information furnished by the other about the Equipment (including without limitation computer software programs, engineering drawings for equipment, schematic drawings for electric, pneumatic, P.I.D., liquid and hydraulic systems, time parameters, design dimensions, flow rates, pressures and other product and process specifications) for a period of five (5) years from the date of disclosure or, in the case of trade secret information, until such information no longer qualifies for protection as a trade secret under applicable law, PROVIDED that all such proprietary information is marked or otherwise designated as “CONFIDENTIAL.” No information shall be considered proprietary which (a) is or becomes generally available to the public without the fault of a Party, (b) was available to a Party on a non-confidential basis prior to its disclosure by the other Party, or (c) becomes available to a Party on a non-confidential basis from a third party having the right to make such disclosure.

17. Assignment.
Neither Party may assign all or part of its rights and/or obligations under the Contract without the written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Seller may assign all or part of its rights and/or obligations under the Contract without Purchaser’s approval to any parent, subsidiary or entity under common control with Seller or any purchaser of all or substantially all of Seller’s assets.

18. Choice of Law and Jurisdiction.
The definition of terms used, interpretation of the Contract, and rights of parties hereto shall be construed under and governed by the laws and regulations of the Kingdom of Belgium, without regard to its choice of law rules. Neither the Uniform Commercial Code, nor the United Nations Convention on the International Sale of Goods nor any laws, rules or regulations promulgated under either of them will govern this Contract. The Parties hereby consent to the exclusive jurisdiction and venue of the courts located in Brussels, Belgium, to decide any dispute, claim or matter regarding the Contract or the subject matter thereof. Purchaser hereby waives any claims of forum non conveniens and any other arguments contesting such jurisdiction or venue.

19. Full Understanding.
Each Party confirms that it has the necessary experience and knowledge to enter into and evaluate the Quotation and these Terms and Conditions and is not in a state of need as at the date hereof. The Parties hereby expressly agree and acknowledge that: (a) the Contract does not constitute an adhesion agreement, (b) they have received legal advice of their choosing in relation to the Contract, and (c) they have negotiated and agreed upon all provisions of this Contract and such provisions do not constitute either standard provisions or unusual provisions. Neither Party has entered into this agreement in reliance upon any representation, warranty, statement or promise that is not set out expressly in the Quotation. Purchaser hereby expressly acknowledges that it has read, understood and accepted each and every provision of these Terms and Conditions. In particular, Purchaser hereby expressly acknowledges Section 3, 6, 7, 8, 10, 18, as well as each and every provision of these Terms and Conditions providing: A) in favor of Seller (i) limitations of liability, (ii) the right to unilaterally terminate the Terms and Conditions, (iii) the right to suspend the performance of their obligations or B) in respect of Purchaser (i) the loss of rights, (ii) the loss of benefit of term, (iii) the limitation of the right to raise exceptions, (iv) the limitation of the right to contract with third parties, (v) the applicable law, (vi) provisions derogating from competent courts’ jurisdiction rules.

20. Right of First Refusal.
If Purchaser desires to sell, transfer or otherwise dispose of (collectively, “Transfer”) the Equipment to a third party other than an affiliate of Purchaser or a purchaser of all or substantially all of Purchaser’s assets, it must first notify Seller of the terms and conditions of the proposed Transfer. For a period of fifteen (15) days from receipt of that notice, Seller shall have the right to elect, by giving written notice to Purchaser, to acquire the Equipment under the same terms and conditions as the proposed Transfer.