Below are details of our Terms and Conditions applicable. Read on for full information on General Terms, Terms and Conditions of Purchase, Terms and Conditions of Sales and Website Terms.
The purchase order, together with these terms and conditions, and any attachments and exhibits, specifications, drawings, notes, instructions and other information, whether physically attached or incorporated by reference (collectively the “Purchase Order”), constitutes the entire and exclusive agreement between Aegex Technologies, LLC (“Aegex”) and the Supplier (the “Supplier”) identified in the Purchase Order. Aegex’s submission of the Purchase Order is conditioned on Supplier’s agreement that any terms different from or in addition to the terms of the Purchase Order, whether communicated orally or contained in any purchase order confirmation, invoice, acknowledgement, release, acceptance or other written correspondence , irrespective of the timing, shall not form a part of the Purchase Order, even if Supplier purports to condition its acceptance of the Purchase Order on Aegex’s agreement to such different or additional terms . Supplier’s electronic acceptance, acknowledgement of this Purchase Order, or commencement of performance constitutes Supplier’s acceptance of these terms and conditions. The Purchase Order does not constitute a firm offer and may be revoked at any time prior to acceptance. Notwithstanding the foregoing, if a master agreement covering procurement of the Work described in the Purchase Order exists between Supplier and Aegex the terms of such master agreement shall prevail over any inconsistent terms herein.
“Deliverables” means the deliverables specified in the Purchase Order (and any Statement
of Work) to be delivered on or before the Delivery Date.
“Delivery Date” means the date or dates specified in the Purchase Order by which the Supplier is required to deliver the Work. “Harmful Code” means any software intentionally designed to (i) disrupt , disable, harm, or impede operation, or (ii) impair operation based on the lapse of time, including but not limited to viruses, worms , time bombs , time locks, drop-dead devices, access codes, security keys, back doors , or trap door devices. “Intellectual Property Rights” means any and all tangible and intangible: (i) copyrights and other rights associated with works of authorship throughout the world , including but not limited to copyrights, neighboring rights, moral rights, and mask works , and all derivative works thereof; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and (vi) all registrations, applications , renewals, extensions, continuations , divisions , or reissues thereof now or hereafter in force (including any rights in any of the foregoing). “Preexisting Materials” means any Intellectual Property Rights or tangible personal property of Supplier or Aegex created before the date of this Purchase Order or outside the scope of this Purchase Order. “Products” means tangible goods specified in the Purchase Order to be delivered on, or before the Delivery Date. “Services” means the services that Supplier is to perform for Aegex specified in the Purchase Order.
“Statement of Work” or “SOW” means the document specifying, without limitation, the scope, objective, and time frame of the Work that Supplier will perform for Aegex. “Subcontractor” means a third party performing Work under an agreement (a “Subcontract”) with Supplier. “Supplier Personnel” means Supplier’s employees, consultants, agents, independent Contractors and Subcontractors. “Third Party Intellectual Property” means the Intellectual Property Rights of a third party which Supplier uses or incorporates into the Work. “Work” means the Deliverables, Products and Services specified in the Purchase Order, including any SOW.
Time is of the essence in Supplier’s performance of its obligations under Section 3 of
the Purchase Order. Supplier will immediately notify Aegex if Supplier’s timely
performance under the Purchase Order is delayed or is likely to be delayed. Aegex’s
acceptance of Supplier’s notice will not constitute Aegex’s waiver of any of Supplier’s
If Supplier delivers Work after the Delivery Date, Aegex may reject such Work. Aegex will hold any Work rejected under this Purchase Order at Supplier’s risk and expense, including but not limited to storage charges, while awaiting Supplier’s return shipping instructions. Supplier will bear all return shipping charges including without limitation, insurance charges Aegex incurs on Supplier’s behalf. Aegex may, in its sole discretion, destroy or sell at a public or private sale any rejected Work for which Aegex does not receive return shipping instructions within 30 days from the date Aegex notified Supplier of the rejection, and apply the proceeds, if any, first toward any storage charges.
Supplier will preserve, pack, package and handle the Deliverables and Products so as to protect the Deliverables and Products from loss or damage and in accordance with best commercial practices in the absence of any may provide. Without limiting the foregoing, Supplier shall observe the requirements of any local laws and regulations relating to hazardous work, including, without limitation, with respect to its accompanying information, packing, labeling, reporting, carriage and disposal. Supplier will include with each delivery of Products a packing list identifying the Purchase Order number, the Aegex part number for each of the Products (if applicable), a description and the quantity of each of the Products, and the date of shipment. Unless Aegex expressly instructs otherwise, Supplier will deliver all Work to Aegex’s address set forth in the Purchase Order. Seller assumes responsibility for all shipping and delivery charges including, without limitation, customs, duties, costs, taxes and insurance. Risk of loss for the Deliverables and Products does not pass to Aegex until acceptance in accordance with Section 6.
Unless otherwise specified in the Purchase Order, the price for the Work includes all taxes and other charges such as shipping and delivery charges, duties, customs, tariffs, imposts and government imposed surcharges. Supplier will, at Aegex’s request, break-out from the price all such taxes and other charges, in its invoices. Supplier shall use its best efforts to assist Aegex in all legal efforts to minimize the taxes resulting from the performance of this Purchase Order. Aegex will pay Supplier the price in accordance with the payment terms set forth in the Purchase Order following the later of: (i) the Delivery Date; (ii) the date of Aegex’s acceptance of all of the Work; or (iii) Aegex’s receipt of a properly prepared invoice. A properly prepared invoice must include the Purchase Order number and, if required in the Purchase Order, Supplier’s certification of conformance of the Work to the requirements specified. Payment will be made in US dollars.
Aegex may reject any or all of the Work which does not conform to the applicable requirements within 10 business days of Supplier’s delivery of the Work. At Aegex’s option, Aegex may (i) return the nonconforming Work to Supplier for a refund or credit; (ii) require Supplier to replace the non-conforming Work; or (iii) require Supplier to repair the non-conforming Work so that it meets the specified requirements. As an alternative to (i) through (iii), Aegex may accept the non-conforming Work conditioned on Supplier providing a refund or credit in an amount Aegex reasonably determines to represent the diminished value of the non-conforming Work. Aegex’s payment to Supplier for Work prior to Aegex’s timely rejection of such Work as non-conforming will not be deemed as acceptance by Aegex.
As used in this Section 7, “Change” means a change Aegex directs or causes within the general scope of this Agreement, the applicable SOW or both. Aegex, by written order (“Change Order”), may make Changes in accordance with this Section 7.If Supplier asserts that Aegex, has directed or caused a Change to the cost of or time for performance for which Aegex has not issued a Change Order, Supplier will promptly notify Aegex in writing of the Change, providing (i) a description of the action or inaction asserted to have caused the Change;(ii) an estimate of the equitable adjustment that would be required for Supplier to perform the Changed Work; and (iii) a date no less than 30 days from the date of notice by which Aegex must respond to Supplier’s notice so that Supplier may proceed with the Work unchanged. Aegex will evaluate Supplier’s notice of Change in good faith, and if Aegex agrees that it has made a constructive change, Aegex will issue a Change Order to Supplier. Supplier shall, as promptly as practicable, after giving the notice of the Change, or within 10 days of receiving a Change Order, submit a request for an equitable adjustment specifying the Adjustment in the price, or time for performance resulting from the Change. The parties shall negotiate an amendment to the applicable SOW to incorporate a Change Order providing for an equitable adjustment to the price, time for performance, or both. Supplier will proceed with the Changed Work as directed, notwithstanding that the parties have not negotiated the amendment to this Agreement or the applicable SOW to incorporate the equitable adjustment.
Supplier represents and warrants that:
it has the full power to enter into the Purchase Order and to perform its obligations under the Purchase Order;
it has the right and unrestricted ability to assign the Work to Aegex including, without limitation, the right to assign any Work performed by Supplier Personnel and Subcontractors;the Work, and Aegex’s use of the Work, do not and will not infringe upon any third party’s Intellectual Property Rights, right of publicity or privacy , or any other proprietary rights, whether contractual, statutory or common law;Supplier will not disclose to Aegex, bring onto Aegex’s premises, or induce Aegex to use any confidential or proprietary information that belongs to anyone other than Aegex or Supplier which is not covered by a non-disclosure agreement between Aegex and Supplier;Software supplied by Supplier does not contain any Harmful Code;Supplier’s Work conforms to Aegex’s specifications, Supplier’s quotation or proposal, and Supplier’s brochures or catalogs, and if none of the foregoing is applicable, then such Work is suitable for the intended use;it will not use or disclose any information that may identify an individual (“Personal Data”) that is processed for or on behalf of Aegex except to the extent necessary to perform under this Purchase Order;
only to the extent that Supplier actually processes Personal Data it will:
implement and maintain appropriate technical and organizational measures and other protections for Personal Data (including, without limitation, not loading any Personal Data provided to Supplier on (a) any laptop computers or (b) any portable storage media that can be removed from Supplier’s premises unless each case (i) such data has been encrypted and (ii) such data is loaded onto portable storage media solely for the purpose of moving such data to off-site storage),report to Aegex any breaches of security of Personal Data immediately after discovery (“Security Incident”),cooperate fully with Aegex in investigating any Security Incidents,cooperate fully with Aegex’s requests for access to, correction of, and destruction of Personal Data in Supplier’s possession, comply with all instructions or other requirements provided or issued by Aegex from time to time relating to Personal Data, and permit Aegex and/or its duly authorized representatives, on reasonable prior notice, to inspect and audit Supplier’s business premises and computer systems to enable Aegex to verify that Supplier is in full compliance with its processing obligations under this Purchase Order; it will not transfer Personal Data across any country border unless it is (a) strictly unavoidable for the proper performance under this Purchase Order, and (b) notified to Aegex in writing prior to any such transfer. Upon Aegex’s request, Supplier shall enter into such other arrangements with Aegex as Aegex considers appropriate (e.g. the EU Model Clauses) in order to ensure that Supplier’s transfers are lawful. It will not provide Aegex with Personal Data of any third party or its own employees. Notwithstanding the foregoing, if Supplier does provide Aegex with any Personal Data, Supplier represents and warrants that it has obtained the necessary consent to provide that Personal Data to Aegex, and to allow Aegex to use, disclose, and transmit such Personal Data on a worldwide basis among Aegex and its affiliates in connection with this Purchase Order; and no Products contain or include components (a) containing PCB’ (polychlorinated biphenyls) chemical substances, (b) manufactured using a cadmium plating process or contain a chemical substance or mixture that is or becomes subject to a reporting requirement under Section 8(e) of the Toxic Substances Control Act, 15 U.S.C. Section 2607(e), as in effect at time of shipment Aegex warrants and represents to Supplier that it has the full power to enter into the Purchase Order and to perform its obligations under the Purchase Order. TO THE EXTENT ALLOWED BY APPLICABLE LAW, NO OTHER WARRAN TIES ARE MADE, EITHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Supplier may not assign any of its rights or delegate any of its obligations under the Purchase Order without Aegex’s prior written consent, which Aegex will not unreasonably withhold. Supplier may, at its option, void any attempted assignment or delegation undertaken without Aegex’s prior written consent. Supplier may not subcontract any of its rights or obligations under the Purchase Order without Aegex’s prior written consent. If Aegex consents to the use of a Subcontractor, Supplier will: (i) guarantee and will remain liable for all subcontracted obligations (ii) indemnify Aegex for all damages and costs of any kind, subject to the limitations in Section 12 (“Indemnification”), incurred by Aegex or any third party and caused by the acts and omissions of Supplier’s Subcontractors’ and (iii) make all payments to its Subcontractors. If Supplier fails to timely pay for work performed, Aegex will have the right, but not the obligation, to pay the Subcontractor and offset any amount due to Supplier by any amount paid to the Subcontractor. Supplier will defend, indemnify and hold Aegex harmless for all damages and costs of any kind, without limitation, incurred by Aegex and caused by Supplier’s failure to pay a Subcontractor.To the extent allowed by applicable law, no person who is not a party to the Purchase Order shall be entitled to enforce or take the benefit of any of its term whether as a result of applicable legislation, custom or otherwise.
The Purchase Order will remain in effect with respect to any SOW already issued prior to expiration of the term of the Purchase Order until such SOW is either terminated or the Work is completed and accepted. Aegex may terminate this Purchase Order, any SOW, or both at any time, for no reason or for any reason, upon 15 days written notice to Supplier. Upon receipt of notice of such termination, Supplier will inform Aegex of the extent to which it has completed performance as of the date of the notice, and Supplier will collect and will deliver to Aegex whatever Work then exists. Aegex will pay Supplier for all Work performed and accepted through the effective date of the termination, provided that Aegex will not be obligated to pay any more than the payment that would have become due had Supplier completed and Aegex had accepted the Work. Aegex will have no further payment obligation in connection with any termination. Either party may terminate the Purchase Order, any SOW or both, immediately by delivering written notice to the other party upon the occurrence of any of the following events: (i) a receiver is appointed for either party or its property: (ii) either makes a general assignment for the benefit of its creditors: (iii) either party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, if such proceedings are not dismissed within 60 days: or (iv) either party is liquidating, dissolving , or ceasing to do business in the ordinary course. Aegex may immediately terminate the Purchase Order upon written notice to Supplier if there is a change in ownership representing 20 percent or more of the equity ownership of Supplier. Either party may terminate this Purchase Order, any SOW or both, immediately by delivering written notice to the other party for any material breach not cured within 30 days of receipt of notice of the breach. Aegex shall have no further payment obligation to Supplier under any terminated SOW if Aegex terminates the SOW under this Section 10.5. Any obligations or duties which, by their nature, extend beyond the expiration or termination of the Purchase Order shall survive the expiration or termination of the Purchase Order.
If Aegex and Supplier have entered into a Non-Disclosure Agreement (“NDA”) which covers disclosure of confidential information under the Purchase Order, and if the term of the NDA expires before the expiration or termination of the Purchase Order, the n the term of the NDA shall be automatically extended to match the term of the Purchase Order. The parties shall treat the terms, conditions, and existence of the Purchase Order as Confidential Information as defined in the NDA. Supplier shall obtain Aegex’s written consent prior to any publication, presentation, public announcement, or press release concerning its relationship as a supplier to Aegex.
As used in this Section 12, a “Claim” is any claim, demand, loss, damage, liability, cost
or expense (including professional fees and costs as incurred) for which one party (the
“Indemnifying Party”) may be obligated to defend, indemnify and hold the other party
(the “Indemnified Party”) harmless. Supplier shall defend, indemnify and hold Aegex
harmless from and against any and all Claims as incurred, arising out of or in
connection with: any (i) act or omission of Supplier (including its Subcontractors) in
the performance of the Work; or (ii) any infringement of a third party’s Intellectual
Property Rights or any other rights. Aegex shall indemnify and hold Supplier harmless
from and against any and all Claims as incurred, arising out of or in connection with:
(i) Supplier’s use of Aegex’s products or services in connection with the Work; (ii)
Supplier’s use of information or materials provided to Supplier by Aegex; or (iii)
infringement of a third party’s Intellectual Property Rights or any other rights
resulting from Supplier’s adherence to Aegex’s written instructions. Each party will
indemnify and hold the other party harmless from and against any and all Claims, as
incurred, arising out of any negligent or willful acts or omissions of the Indemnifying
Party which results in personal injury (including death) or damage to tangible property
(not including lost or damaged data).
The Indemnified Party will provide the Indemnifying Party with prompt written notice of the Claim and permit the Indemnifying Party to control the defense, settlement, adjustment, or compromise of any Claim. The Indemnified Party may employ counsel at its own expense to assist it with respect to any Claim. The Indemnified Party will have no authority to settle any Claim on the Indemnifying Party’s behalf. If a third party enjoins or interferes with Aegex’s use of any Work, then in addition to Supplier’s obligations under Section 12.2, Supplier will use its best efforts to (i) obtain any licenses necessary to permit Aegex to continue to use the Work; (ii) replace or modify the Work as necessary to permit Aegex to continue to use the Work; or if (i) and (ii) are not commercially reasonable, then (iii) promptly refund to Aegex the amount paid for any Work for which a third party enjoins or interferes with Aegex’s use of the Work. Nothing in this Section shall limit any other remedy of the parties.
NOTWITHSTANDING ANYTHING ELSE IN THE PURCHASE ORDER OR OTHERWISE, AEGEX WILL NOT BE LIABLE TO SUPPLIER WITH RESPECT TO THE SUBJECT MATTER OF THE PURCHASE ORDER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS OF THE AMOUNT AEGEX PAID TO SUPPLIER IN THE SIX MONTHS PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL AEGEX BE LIABLE TO SUPPLIER FOR ANY INCIDENTAL , INDIRECT, SPECIAL, CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF, OR IN CONNECTION WITH , THE PURCHASE ORDER, WHETHER OR AEGEX WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE LIMITATIONS WILL APPLY NOTWITHSTAND ING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. NOTHING IN THE PURCHASE ORDER LIMITS EITHER PARTY’S LIABILITY FOR BODILY INJURY OF A PERSON, DEATH, OR PHYSICAL DAMAGE TO PROPERTY OR ANY LIABILITY WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW
Supplier will secure and maintain insurance providing coverage for liabilities to third parties for bodily injury (personal injury) and damage to property in amounts sufficient to protect Aegex in the event of such injury or damage, and will be in compliance with any and all laws, regulations or orders addressing the liabilities of an employer to its employees for injuries and disease suffered in connection with employment. Supplier further will maintain such additional types and limits of insurance as is customary for a company of similar operations to Supplier or jurisdictions in which Supplier’s operations take place.
Supplier represents and warrants that it will comply with all applicable local and national laws and regulations pertaining to its performance of its obligations under this Purchase Order. In particular and without limitation, Supplier shall not act in any fashion or take any action that will render Aegex liable for a violation of any applicable anti-bribery legislation (including without limitation, the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010), which prohibits the offering, giving or promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist them or Aegex in retaining or obtaining business or in performing the Work . Supplier’s failure to comply with this provision shall constitute a material breach of this Purchase Order.
The Purchase Order will be construed in accordance with, and all disputes will be governed by, the laws of the State Georgia, without regard to its conflict of laws rules. The parties specifically waive application of the United Nations Convention on Contracts for the International Sale of goods. Supplier irrevocably consents to the personal jurisdiction of the state and federal courts in and for Fulton County, Georgia, and irrevocably waives any claim it may have that any proceedings brought in such courts have been brought in an inconvenient forum.
Any notice to be given under the Purchase Order will be in writing and addressed to the
party at the address stated in the front of the Purchase Order. Notices will be deemed
given and effective (i) if personally delivered, upon delivery, (ii) if sent by an
overnight service with tracking capabilities, upon receipt; (iii) if sent by fax or
electronic mail, at such time as the party which sent the notice receives confirmation
of receipt by the applicable method of transmittal; or (iv) if sent by certified or
registered mail, within five days of deposit in the mail. If there is a conflict between
or among the Purchase Order and any documents attached to and incorporated by reference,
the conflict will be resolved as follows:A conflict between the terms of the Purchase
Order and those set forth in an exhibit or hyperlink will be resolved in favor of the
A conflict between the terms of the Purchase Order and those set forth in an SOW will be resolved in favor of the SOW.
A conflict between the terms of an exhibit or hyperlink and those set forth in an SOW will be resolved in favor of the SOW. If any court of competent jurisdiction holds that any provision of the Purchase Order is illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of the Purchase Order will not be affected or impaired, and all remaining terms of this Purchase Order remain in full force and effect, provided that this provision shall not be applied to defeat the intent of the parties.A party’s election not to insist on strict performance of any requirement of the Purchase Order will not operate or be construed to waive any future omission or breach, or any other provision of the Purchase Order.
These Terms and Conditions of Sale shall be the sole terms and conditions governing the sale of products (“Products”) by Aegex Technologies, LLC (“Aegex”) and its subsidiaries to the party listed on the purchase order or other order documentation (“Buyer”). Aegex's acceptance of Buyer’s order is expressly conditioned on Buyer’s acceptance of these terms and conditions. Any and all Buyer terms and conditions are hereby rejected and shall be of no effect.
All prices are invoiced and payable in U.S. Dollars. All prices are subject to change without notice, unless otherwise agreed upon in writing between Aegex and the Buyer. Prices are exclusive of all federal, state, municipal or other government excise, sales, use, occupational or like taxes, tariffs, customs, duties and importing fees, the payment of which shall be the sole responsibility of Buyer regardless of whether invoiced to Buyer by Aegex. Prices are consequently subject to increase by the amount of any such tax, tariff, duty or fee that Aegex pays or is required to pay or collect upon sale or delivery of the Products. Any certificate of exemption or similar document or proceeding required to exempt the sale of Products from sales or use tax liability shall be obtained by Buyer at its expense. Prices may be adjusted if Products are not tendered for delivery within twelve (12) months after Aegex's receipt of the order for such Products. If Buyer fails to take delivery of the quantity of Products upon which a quantity discount price, if any, is based, Buyer will be back-billed an amount based on the quantity actually delivered here under and upon the quantity pricing schedule in effect at the time the order was placed. Such charges will be in addition to any cancellation charges.
Terms shall be prepayment, except where satisfactory open account credit is established, in which case Aegex, in its sole discretions may provide terms of payment net thirty (30) days from the date of invoice or accept a Letter of Credit acceptable to Aegex. Aegex reserves the right at any time to revoke any credit extended to the Buyer for any risk deemed good and sufficient by Aegex. Aegex will issue invoices on delivery in the case of all Products; and if deliveries are authorized in installments, each shipment shall be invoiced and paid when due without regard to other scheduled deliveries. Overdue payments shall be subject to finance charges computed at a periodic rate (to the extent permitted by law) of 1.5% per month (18% per year). Amounts owed by the Buyer with respect to which there is no dispute shall be paid without set-off for any amounts that the Buyer may claim are owed by Aegex and regardless of any other controversies that may exist. Buyer does hereby grant to Aegex a security interest in the Products and proceeds therefrom as security for the performance by Buyer of all its obligations hereunder.
Unless specific instructions to the contrary are supplied by the Buyer, Aegex will select the carrier and ship the Products to the Buyer’s address indicated on Buyer’s purchase order. All Products will be scheduled for shipment in accordance with Aegex's minimum order policy and applicable shipment sequence. Aegex reserves the right to make shipments in installments. Aegex reserves the right to make shipments when Product is available and shall invoice shipments as made. Aegex reserves the right to allocate production and deliveries among its various customers under any circumstances. Aegex will confirm in writing, and amend as appropriate, the shipment schedule. Aegex will not assume any liability in connection with the shipment or constitute any carrier as its agent. Buyer shall be responsible for making all claims with carriers, insurers, warehousers and others for non-delivery, loss, damage or delay. All claims for damages to the Products or shortages must be made within thirty (30) days of shipment. Under no circumstances shall Aegex be liable to Buyer for any delay either in shipment or in delivery.
Except as otherwise stated herein, all Products will be shipped Ex Works Factory Pecs Hungary for destinations outside the Americas and Ex Works Atlanta for destinations inside the Americas. Ownership of, and risk of loss with respect to, the Products shall pass to Buyer upon delivery thereof by Aegex to Buyer or to a carrier for shipment to Buyer, whichever is earlier, regardless of whether Aegex will install or supervise the installment of the Products. Products held or stored by Aegex for the Buyer shall be at the sole risk of Buyer, and Buyer shall be liable for the expense to Aegex of holding or storing Products at Buyer’s request.
Source inspection by Buyer or Buyer’s customer must be stipulated in writing, at the time of ordering, and is subject to reasonable charges and safety and security conditions. Buyer shall have no right of access to any Aegex facility except as specifically authorized in advance by Aegex. Buyer or Buyer’s agent shall indemnify and hold Aegex harmless from any and all suits, damages, and expenses of Buyer, his agent or his customer resulting from personal injury including death or loss or damage of property occurring during, or in connection with, any visit to any Aegex facility.
Except as otherwise provided herein, Aegex warrants to the Buyer that for one (1) year from the date title to the Product passes, each Product sold hereunder will be free of defects in materials or workmanship and will conform to specifications set forth in published data sheets (or in published user manuals for Aegex's system products). Conformity to specifications shall be to those specifications published at the time title passes. Aegex's sole liability and responsibility under this warranty is to repair or replace any Product that is returned to it by Buyer and that Aegex determines does not conform to the warranty or credit Buyer’s account for such returned Product. Product returned to Aegex for warranty service will be shipped to Aegex at Buyer’s expense and will be returned to Buyer at Aegex's expense. Aegex's obligation to honor its warranty is contingent upon receipt of payment in full for the Products entitled to such warranty.
EXCEPT AS PROVIDED HEREIN, AEGEX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. AEGEX SHALL HAVE NO WARRANTY OBLIGATION UNTIL IT RECEIVES PAYMENT IN FULL FOR THE PRODUCT UNDER WARRANTY. LABELING ON PRODUCTS AND PACKAGING IS INTENDED SOLELY FOR COMPLIANCE WITH APPLICABLE LAW AND AEGEX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, THAT ARISE FROM SUCH LABELING OTHER THAN AS REQUIRED BY APPLICABLE LAW. IN NO EVENT SHALL AEGEX BE RESPONSIBLE UNDER ITS WARRANTY FOR ANY DEFECT THAT IS CAUSED BY NEGLIGENCE OF BUYER OR A THIRD PARTY, MISUSE OF A PRODUCT OR MISTREATMENT OF A PRODUCT. AEGEX SHALL HAVE NO RESPONSIBILITY FOR ANY PRODUCT THAT HAS BEEN ALTERED OR MODIFIED IN ANY WAY. AEGEX SHALL HAVE NO RESPONSIBILITY TO THE EXTENT ANY DEFECT OR FAILURE IS CAUSED BY NONCOMPATIBILITY OF THE PRODUCTS WITH OTHER COMPONENTS USED BY BUYER. AEGEX SHALL HAVE NO RESPONSIBILITY FOR NONSTANDARD PRODUCTS OR PRODUCTS PURCHASED THROUGH UNAUTHORIZED CHANNELS. THE WARRANTY OF REPLACEMENT PRODUCTS SHALL TERMINATE WITH THE WARRANTY OF THE PRODUCT.
Aegex's EXPRESS WARRANTY TO BUYER AND THE INTELLECTUAL PROPERTY INDEMNITY DESCRIBED HEREIN ARE SOLELY FOR THE BENEFIT OF BUYER AND NO OTHER PARTY, CONSTITUTE Aegex's SOLE LIABILITY AND THE BUYER’S SOLE REMEDY WITH RESPECT TO THE PRODUCTS, AND ARE IN LIEU OF ALL OTHER WARRANTIES, INDEMNITIES, LIABILITIES AND REMEDIES. UNLESS OTHERWISE EXPRESSLY PROVIDED IN A WRITING SIGNED BY BOTH PARTIES, AEGEX DOES NOT INDEMNIFY, NOR DOES IT HOLD BUYER HARMLESS, AGAINST ANY LIABILITIES, LOSSES, DAMAGES AND EXPENSES (INCLUDING ATTORNEY’S FEES) RELATING TO ANY CLAIMS WHATSOEVER, INCLUDING WITHOUT LIMITATION, CLAIMS FOR PERSONAL INJURIES, DEATH OR PROPERTY DAMAGE RELATING TO THE PRODUCTS SOLD HEREUNDER. IN NO EVENT SHALL AEGEX BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES, OR FOR LOSS OF PROFITS, LOSS OF DATA, OR LOSS OF USE DAMAGES, DUE TO ANY CAUSE WHATSOEVER, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF AEGEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. NO SUIT OR ACTION SHALL BE BROUGHT AGAINST AEGEX MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS ACCRUED. THE TOTAL LIABILITY OF AEGEX TO BUYER AND/OR ANY OTHER PARTY FROM ANY LAWSUIT, CLAIM, WARRANTY OR INDEMNITY SHALL NOT EXCEED THE AGGREGATE AMOUNT ACTUALLY PAID BY BUYER TO AEGEX FOR THE SPECIFIC PRODUCTS (AS IDENTIFIED BY PART NUMBER) SOLD UNDER THE ORDER SHIPMENT(S) AT ISSUE WITHIN THE PRIOR TWELVE (12) MONTHS THAT GAVE RISE TO THE LAWSUIT, CLAIM, WARRANTY OR INDEMNITY. THE EXISTENCE OF MULTIPLE CLAIMS RELATED TO THE SAME PRODUCT AT ISSUE SHALL NOT ENLARGE OR EXTEND THIS LIMIT.
Products sold by Aegex are not designed, intended or approved for use in life support, implantable medical devices, transportation, nuclear, safety or other equipment where malfunction of the Product can reasonably be expected to result in personal injury, death, severe property damage or severe environmental harm. Buyer uses or sells Products for use in such critical applications at Buyer’s own risk and agrees to defend, indemnify and hold harmless Aegex from any and all damages, claims, suits or expenses resulting from such use.
Aegex agrees to indemnify and defend Buyer against any claim that a Product, as delivered, infringes a valid and enforceable United States patent, United States copyright, United States trademark or other United States intellectual property right, provided that Aegex is promptly advised of any such claim or action and has sole control of the defense of any such action and all negotiations for its settlement or compromise (”Claim”). Buyer shall provide Aegex with all information and assistance required by Aegex to defend any such Claim. Aegex shall not be responsible for any settlement or compromise made without its prior written consent. Aegex shall have no obligation to reimburse Buyer for costs and expenses incurred in connection with a Claim until the Claim is fully litigated or properly settled or compromised. If at any time use of a Product is the subject of a Claim or, in the opinion of Aegex, is likely to become the subject of a Claim, Aegex shall have the right, but not the obligation, at its sole option and expense, to either procure for Buyer the right to continue using the Product, replace or modify the Product so that it becomes non-infringing or accept the return and grant Buyer a credit for the Product as depreciated. If Aegex elects to accept the return, Buyer shall return to Aegex any and all Products remaining in Buyer’s possession, custody or control. Aegex shall not have any liability to Buyer for any infringement or other violation of a third party right that is based in any way upon (i) the use of the Product in combination with other components, equipment or software not furnished by Aegex, provided that Aegex shall have no liability related to third party software; (ii) the use of the Product in practicing any process or method; (iii) any Product that has been modified or altered; (iv) the manner in which the Product is used even if Aegex has been advised of such use; (v) Aegex's compliance with the Buyer’s designs, specifications or instructions; (vi) the use of the Product after Buyer has received notice of such infringement or other violation, and Aegex has offered a replacement, modification or refund therefor, or (vii) compliance with an industry standard or communication protocol. THE ABOVE INDEMNITY STATES BUYER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT AND IS IN LIEU OF ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH RESPECT TO INFRINGEMENT.
These terms and conditions are not assignable by Buyer and any attempt to assign any rights, duties or obligations arising hereunder shall be void. Aegex may, as it deems necessary, subcontract any part of the work or services to be provided pursuant to these terms and conditions.
If a dispute, controversy or claim arises out of or relates to these terms and conditions, or the breach, termination or validity thereof, and if either party decides that the dispute cannot be settled through direct discussions, the parties agree to settle the dispute through arbitration. The arbitration shall be conducted by one arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA) in effect at the time of the arbitration, except as they may be modified herein or by mutual agreement of the parties. The seat of the arbitration shall be Atlanta, Georgia and the arbitration shall be conducted in the English language. The arbitrator shall not have the authority, power, or right to alter, change, amend, modify, add, or subtract from any provision of these terms and conditions. The arbitral award shall be in writing and shall be final and binding on the parties. Judgment upon the award may be entered by any court having jurisdiction thereof or having jurisdiction over the parties or their assets. Subject to any arbitral award, costs of arbitration shall be borne equally by the parties. The arbitration requirement does not limit the right of either party to obtain provisional or ancillary remedies, such as injunctive relief, before, during or after any arbitration proceeding.
Except as provided below, any and all matters in dispute between the parties, whether arising from or relating to these terms and conditions or arising from alleged extra-contractual facts including, without limitation, fraud, misrepresentation, negligence or any other alleged tort or violation of contract, shall be governed by, construed, and enforced in accordance with the laws of the State of Georgia, without resort to the State’s conflict of laws provisions and regardless of the legal theory upon which such matter is asserted, and any applicable United States federal law. The sole jurisdiction and venue for all actions related to the subject matter hereof shall be the state and federal courts located in Fulton County, Georgia.
Aegex shall not be liable for any loss or damage resulting from any delay in delivery or failure to give notice of delay when such delay is due to any cause or event beyond Aegex's control, including, without limitation, acts of nature, pandemics, epidemics, unavailability of supplies or sources of energy, riots, wars, terrorist acts, sabotage, fires, strikes, labor difficulties, delays in transportation, delays in delivery or defaults by Aegex's vendors, or acts or omissions of the Buyer. In the event of delay due to any such cause, time for delivery shall be extended for a period of time equal to the duration of such delay and the Buyer shall not be entitled to refuse delivery or otherwise be relieved of any obligations as a result of the delay. If, as a result of any such cause, any scheduled delivery is delayed for a period in excess of one-hundred-twenty (120) days, Aegex or Buyer shall have the right by written notice to the other to cancel the order for the Products subject to the delayed delivery without further liability of any kind.
Buyer acknowledges and agrees that the Products being sold hereunder are subject to the export control laws and regulations of the United States and/or other national governments. Buyer will comply with these laws and regulations. These laws and regulations include, but are not limited to, the U.S. Export Administration Regulations (US EAR), the U.S. State Department’s International Traffic in Arms Regulations (ITAR), sanction regimes of the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) and export laws and regulations of the European Union (EU) and/or any of its member states. Buyer shall not, without prior U.S. Government authorization, export, re-export, or transfer any commodities, software, or technology, either directly or indirectly, to any country subject to a U.S. trade embargo or sanction or to any resident or national of said countries, or to any person, organization, or entity on any of the restricted parties lists maintained by the U.S. Departments of State, Treasury, or Commerce. In addition, any Products sold hereunder may not be exported, re-exported, or transferred to any end-user engaged in activities, or for any end-use, directly or indirectly related to the design, development, production, use, or stockpiling of weapons of mass destruction (e.g., nuclear, chemical, or biological weapons, and the missile technology to deliver them).
In any contract with the United States government or in any contract that is a
subcontract of any tier under a United States government contract:
Aegex accepts only those clauses of the United States Federal Acquisition Regulations (FAR) that the regulations themselves mandate be flowed-down to a party in Aegex's position, given all relevant limitations, including Aegex's status as a customer or a subcontractor and the size and type of contract; and
Aegex retains proprietary rights in all technical data and computer software provided under such contract. Neither the United States government nor any higher-tier contractor under a United States government contract receives any rights in technical data and computer software beyond the rights provided to all commercial customers under these terms and conditions, except that Aegex grants to the United States government the minimum additional rights required under the narrowest applicable provisions of the FAR or DFARS. Except as specifically agreed in writing, Aegex will not provide certified cost and pricing data and therefore does not accept any Cost Accounting Standards, defective pricing, or audit requirements.
Buyer shall comply, and shall cause its employees to comply, with all applicable local, national, regional and international laws, ordinances, regulations, codes, standards, directives and international conventions and agreements to the extent that any of the foregoing have the force of law by being directly enforceable by a governmental authority, a court or other proper tribunal (collectively “Laws”), including but not limited to (a) anti-bribery and recordkeeping Laws, including but not limited to the U.S. Foreign Corrupt Practices Act (“FCPA”), the Organization for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (“OECD”), and the Inter-American Convention Against Corruption, (b) environmental Laws, and (c) import and export control Laws, including but not limited to the U.S. Export Administration Regulations (US EAR), the U.S. State Department’s International Traffic in Arms Regulations (ITAR), sanction regimes of the U.S. Department of Treasury Office of Foreign Assets Controls (OFAC), export laws and regulations of the European Union (EU) and/or any of its member states and export laws of other national governments. Buyer shall not, without prior U.S. Government authorization, export, re-export, or transfer any commodities, software or technology, either directly or indirectly, to any country subject to a U.S. trade embargo or sanction or to any resident or national of said countries, or to any person, organization, or entity on any of the sanctioned parties lists maintained by the U.S. Departments of State, Treasury or Commerce. Buyer shall comply, and shall cause its employees to comply, with all applicable laws, ordinances and/or directives of countries in which they conduct business as they relate to the Universal Declaration of Human Rights, child labor laws, data privacy laws, criminal reporting laws, Environmental, Health and Safety laws or any similar laws, including, but not limited to identifying and filing or purchasing (as applicable) any and all required permits, certificates, licenses, insurance, approvals and inspections required in performance of its obligations hereunder.
Aegex reserves the right, by written notice of default, to cancel any order, without further obligation or liability to Buyer, on the occurrence of any of the following: (i) the insolvency of Buyer; (ii) the filing of a voluntary petition in bankruptcy by Buyer; (iii) the filing of an involuntary petition to have Buyer declared bankrupt; (iv) the appointment of a receiver or trustee for Buyer; (v) the execution by Buyer of an assignment for the benefit of creditors; (vi) the discontinuance of business by Buyer; or (vii) the sale by Buyer of the bulk of its assets other than in the usual course of business.
Should any of these terms and conditions be held by a court of competent jurisdiction to be contrary to law, that term or condition will be enforced to the maximum extent permissible and the remaining terms and conditions will remain in full force and effect.
Aegex and Buyer are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by these terms and conditions. Buyer is solely responsible for its employees and agents and shall indemnify Aegex against any claim, liability, cost or damage related to Buyer’s actions or those of its employees or agents, including, but not limited to, the making of unauthorized warranties or representations on behalf of Aegex.
Buyer represents that there exist no third party beneficiaries to Buyer’s rights hereunder.
THE PARTIES AGREE THAT THE WARRANTY DISCLAIMER, THE LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY PROVISIONS ARE MATERIAL, BARGAINED TERMS THAT ARE FUNDAMENTAL TO THESE TERMS AND CONDITIONS AND ARE REFLECTED IN THE CONSIDERATION TO BE GIVEN BY BOTH PARTIES UNDER THESE TERMS AND CONDITIONS AND IN THE DECISION BY BOTH PARTIES TO ACCEPT THESE TERMS AND CONDITIONS.
These terms and conditions constitute the entire agreement between the parties and supersede all previous communications, whether oral or written unless otherwise stated above. Any change to these terms and conditions may be made only upon mutual agreement of the parties in writing.
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