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General Purchasing Terms and Conditions Fronius USA LLC

Applicable since May 2024

1. Orders and Order Confirmation

1.1. All purchase orders (“Purchase Orders”) and services agreement (“Services Agreement”, and together with the Purchase Orders, the “Orders”) issued by Fronius USA LLC (“Fronius”) are made expressly subject to these additional terms and conditions (“General Terms”). The Order is between Fronius and the Supplier listed on the front of the Order (“Supplier”, and together with Fronius, the “Parties”). The Order constitutes Fronius’ offer to Supplier for Supplier to supply the named product(s) (“Products”) and/or service(s) (“Services”) and is a binding contract on the terms and conditions set forth herein when Supplier accepts the same in writing or commences performance hereunder. Unless otherwise accepted by Fronius in writing, any acceptance of the Order is limited to acceptance of the express terms of the offer set forth in the Order. Fronius may withdraw the Order at any time before Supplier accepts the same. The Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. These General Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Supplier’s general terms and conditions of sale or any other document issued by Supplier in connection with the Order. These General Terms prevail over any additional or different terms proposed by Supplier, all of which are objected to and rejected unless expressly assented to in writing by Fronius. In the event there are conflicting terms and conditions between the Order and any additional valid agreement fully executed by both Parties (the “Other Agreement”), the terms of the Other Agreement will prevail over those of the Order. The Order applies to any repaired or replacement Products or Services provided by Supplier.

1.2. Orders issued by Fronius are only valid if in writing and containing a Fronius Order Number.  Verbal orders of any kind are not binding unless subsequently confirmed in writing by Fronius. Purchase Orders must be accepted by Supplier in writing providing the Fronius Order Number, within the earlier of (a) the date specified in the Purchase Order or (b) 2 working days after the Purchase Order has been issued. The Purchase Order date is the date upon which Fronius issued the Purchase Order (“Order Date”). The Order Date for any verbal order for Products or Services is the date of the subsequent Fronius’ written order confirmation. Upon the acceptance of the Purchase Order by Supplier or execution of the Services Agreement by the Parties, the prices for the Products or fees for the Services are fixed, and Supplier may not increase prices or fees without express written consent from Fronius.

1.3. No work contemplated hereunder may be subcontracted, outsourced, or otherwise assigned by Supplier without the prior written approval of Fronius.

1.4. Fronius reserves the right at any time to, in writing, direct changes, or cause Supplier to make changes, to drawings, specifications, materials, packaging, testing, quantity, time or method of delivery or shipment, or similar requirements or to otherwise change the scope of the work covered by the Order and Supplier agrees to promptly make such changes. If the change results in an unavoidable increase in price, fee or time for performance by Supplier, Supplier shall notify Fronius immediately in writing specifying in detail the reasons for such increase and requesting an equitable adjustment to the price, fee or time of performance. Failure of Supplier to provide such written notice prior to commencing work on the change shall be deemed acceptance of the change at the original contract price, fee and schedule. Upon receipt of a written notice, Fronius shall equitably adjust, in its sole discretion, the price, fee or time of performance.

1.5. Fronius reserves the right to cancel any part or all of the Order, without incurring any liability to Supplier in the event of any of the following events: (a) Supplier repudiates or breaches any of the terms of the Order; (b) Supplier fails to perform Services or deliver Products as specified by Fronius; (c) Supplier fails to make progress so as to provide timely and proper completion of Services or delivery of Products and does not correct such failure or breach within 10 days (or such shorter period of time if commercially reasonable under the circumstances) after receipt of written notice from Fronius specifying such failure or breach; (d) insolvency of Supplier; (e) filing of a voluntary petition in bankruptcy by Supplier; (f) filing of any involuntary petition in bankruptcy against Supplier, (g) appointment of a receiver or trustee for Supplier; or (h) execution of an assignment for the benefit of creditors by Supplier, provided that such petition, appointment or assignment is not vacated or nullified within 15 days of such event.

1.6. Fronius shall have no obligation to request quotations or place orders with Supplier, both of which shall be in Fronius' sole discretion. The quantity of Products or Services, if any, specified in requests for quotation or forecasts supplied by Fronius from time to time, or otherwise, is an estimate only. Supplier bears sole responsibility for managing Supplier's raw material, work in process, inventory and capacity, and Fronius shall have no liability with respect thereto. The rights and remedies reserved to Fronius in the Order shall be cumulative, and additional to all other or further remedies provided in law or equity.

1.7. Supplier shall keep full internal documentation of any change to each type of Product (“Product Change”) in a chronological, orderly and traceable manner that may clearly be understood by Fronius throughout the term of the Purchase Order, in at least electronic form (including any change in the technical specifications, production process, etc.). Upon the occurrence of a Product Change, Supplier shall promptly provide Fronius with a “Product Change Notification" (or “PCN”), by delivering such notice to During the term of the Purchase Order and for 3 years thereafter, upon Fronius’ written request, Supplier shall provide Fronius with electronic records of the applicable Product Changes for any Product, no later than 14 days after Fronius’ request.

2. Price/Fee and Payment Conditions

2.1. All prices and/or fees (collectively, “Prices”) indicated in the Order are fixed, quoted net.

2.2. The Prices include all applicable federal, state, provincial, and local taxes including sales, value added, or similar turnover taxes or charges. Supplier shall indemnify, defend and hold Fronius harmless from and against all losses, costs, expenses, damages, claims, demands, and liabilities (including without limitation reasonable legal fees and expenses and the costs of settlement, compromise, judgment, or verdict) (collectively, the “Losses”) arising out of or relating to such taxes.  

2.3. Payment is due within 60 calendar days after confirmation by Fronius that the Products and/or Services have been delivered and/or performed and that the Products and/or Services conform to the Order and the invoice of Supplier conforms to the requirements of Fronius as provided in Section 5 of these General Terms. In the event Fronius makes payment within 30 calendar days, Fronius is entitled to an automatic 3% discount of the purchase price for such Products and/or Services. The making of payments shall not constitute a waiver by Fronius of any right it may have under the Order.

2.4. In addition to any right of setoff provided by law, all amounts due Supplier shall be considered net of indebtedness of Supplier to Fronius and its affiliates, and Fronius may deduct any amounts due or to become due from Supplier to Fronius and its affiliates from any sums due or to become due from Fronius to Supplier.

2.5. Fronius shall make payment by wire transfer or check, at the option of Fronius. If payment is made by check, the payment shall have been deemed made on the date it is delivered to a post office, or common carrier.

3. Most-Favored Client Status

Supplier represents and warrants that the terms of the Order are no less favorable to Fronius than that granted by Supplier to any other customer of Supplier.

4. Non-Solicitation

4.1. Supplier shall not solicit, hire, or otherwise employ any Fronius employees, whether directly or indirectly, either for itself or for any third party during the term of any Order and for a period of 12 months after the date of the most recent Order submitted by Fronius to Supplier.

4.2. In the event of each breach of Section 4.1, Supplier shall pay to Fronius liquidated damages in the amount of six times the gross monthly salary for the last month of employment of the Fronius employee in question by Fronius. The foregoing amount of liquidated damages is intended to cover Fronius’ costs of finding a replacement and training a new employee. If Fronius proves actual, higher costs incurred due to the solicitation of the employee, Supplier shall be responsible for these costs as well.

5. Invoicing

5.1. All invoices of Supplier shall be sent to Fronius’ Accounts Payable Department E-mail address, which will be provided on the Purchase Order. Any freight charges are to be listed separately. Invoices, shipping notices, packing slips and packages must contain the Fronius Order Number, the Fronius part number, and specific quantities. Invoices shall cover one Order and must cover all items on Order. Invoices may not include multiple Orders. No payment will be made without proper invoicing and a valid Order number. Delays in receiving invoices, errors or omission on invoices or lack of supporting documentation required by the terms of the Order will be cause for postponing the start of the payment terms until the correct information is received. Fronius will not be responsible for charges on invoices received more than 120 days after shipment of Products or the rendering of Services is complete.

5.2. Invoices for Products must state the mode of shipping. Invoices for Services performed must also include copies of the confirmed pay slips or timecards (if Prices are determined based on time and materials).

5.3. If an outstanding claim against Fronius has been assigned to a third party, then any notification of such assignment shall be made solely by way of an annotation highlighted in boldface type on the invoice.

6. Shipping and Delivery

6.1. Supplier shall make deliveries of the Products in such quantities, at such times and to such location as indicated on the Purchase Order. If Products are not ready for delivery in time to meet Fronius’ delivery schedules, Supplier shall be responsible for all Losses including additional costs of any resulting expedited or other special transportation. Unless otherwise stated in the Purchase Order, Products will be Delivered Duty Paid (Incoterms 2020) and title will transfer upon receipt of the Products by Fronius at the delivery location. 

6.2. Fronius shall not be required to make payment for Products delivered to Fronius which are in excess of quantities specified in Fronius’delivery schedules. Fronius may change rate of scheduled shipments or direct temporary suspension of scheduled shipments, neither of which shall entitle Supplier to a modification of the price for Products covered by the Purchase Order. 

6.3. For orders of Products where quantities and/or delivery schedules are not specified, Supplier shall deliver Products in such quantities and times as Fronius may direct in subsequent releases. If Supplier fails to meet Fronius’delivery schedule, Fronius may require a more expeditious method of transportation for the Products than the transportation method originally specified by Fronius. In such event, Supplier shall, at Fronius’ option, (a) promptly reimburse Fronius the difference in cost between the more expeditious method and the original method; (b) allow Fronius to reduce its payment of Supplier’s invoices by such difference; or (c) ship the Products as expeditiously as possible at Supplier’s expense and invoice Fronius for the amount which Fronius would have paid for normal shipment.

6.4. Supplier shall provide all information and documentation needed to effect customs entry into each country into which the Products are to be imported for delivery to Fronius.

6.5. Unless otherwise agreed to in writing, any material commitments or production arrangements that Supplier makes which are in excess of the amount or in advance of the time necessary to meet schedules that are within lead time shall be at Supplier’s risk and cost. It is Supplier’s responsibility to comply with its scheduled lead times but not to anticipate Fronius’ requirements. Products shipped to Fronius in advance of scheduled lead times may be returned to Supplier at Supplier’s expense.

6.6. Supplier shall pack and ship Products in accordance with Fronius’ instructions, including labeling and hazardous materials instructions. If Fronius has not provided packing or shipping instructions, Supplier shall pack and ship Products in accordance with sound commercial practices.

7. Drawings, Tools, Molds, Models and Parts

7.1. If requested by Fronius, Supplier shall promptly furnish to Fronius in such form and detail as Fronius may require regarding all parts and components that comprise the Products.  

7.2. The specimens, models, drawings, sketches, tools, molds and other aids made available to Supplier for the purpose of drawing up offers or of fulfilling orders placed by Fronius shall remain the property of Fronius. Such objects are to be treated confidentially and may not be made available to third parties or used for other purposes, including advertising purposes; such objects shall only be made available to the Supplier for the intended use for as long as necessary for the fulfillment of the Order.

7.3. In the case of delivery of technical systems and equipment, designated Fronius personnel shall be trained at no additional cost (i.e. within the scope of the agreed Order).

8. Delay and Default

8.1. In the event of a delivery delay, non-delivery or any other default by Supplier in meeting the requirements of th

e Order, Fronius may terminate the Order immediately without prejudice and without further compensation to Supplier, and Fronius' rights will be as specified in the Indiana Uniform Commercial Code. 8.2. In the event Supplier for any reason anticipates any difficulty in complying with the required delivery date or any of the other requirements of the Order, Supplier shall promptly notify Fronius in writing explaining the reason and expected duration of such delay or difficulty to comply such other requirements. After 5 business days of Fronius’ receipt of such written notification, if the Parties are unable to resolve all issues resulting from Supplier’s delay or difficulty to comply with such other requirements, Fronius may terminate the Order. Upon this termination, Supplier shall refund all payments that have been made. 

8.3. Supplier shall take all necessary actions including but not limited to assisting Fronius to develop alternate sources and granting Fronius a perpetual, royalty-free, fully paid, nonexclusive license to use all data, developments, improvements, patentable subject matter, non-patentable subject matter notes, memos, and information of all types relating to the Products and Services provided hereunder.

8.4. Unless expressly indicated otherwise, any right or remedy of Fronius set forth in the Order shall not be exclusive, but in addition thereto, Fronius shall have all rights and remedies under applicable law, including, without limitation, injunctive and/or equitable relief. Without limiting the generality of the foregoing, the Parties agree that, whether as a result of breach of contract, warranty, tort (including negligence or patent infringement), Supplier shall be liable for any special, consequential, incidental, indirect or exemplary damages relating to the Products or Services.   

8.5. If any of the Products or Services ordered are found at any time to be defective in material or workmanship, or otherwise not in conformity with the requirements of the Order, including any applicable drawings and specifications, Fronius, in addition to such other rights, remedies and choices as it may have by contract or by law or equity, at its option and sole discretion may (a) reject and return such Products at Supplier's expense; (b) require Supplier to inspect the Products and remove nonconforming Products; and/or (c) require Supplier to replace nonconforming Products or Services with Products or Services that conform to the Order.

9. Intellectual Property

9.1. Fronius does not transfer to Supplier any patent, trade secret, trademark, service mark, copyright, mask work, or other intellectual property right (“Intellectual Property Right”) of Fronius in information, documents, or property that Fronius makes available to Supplier under the Order. Such Intellectual Property Right shall remain the property of Fronius or its subsidiaries and affiliates.

9.2. Supplier agrees to defend, hold harmless and indemnify Fronius, its subsidiaries and affiliates, its successors and customers against all Losses arising out of or relating to any suit, claim or action for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark, copyright or other intellectual property right by reason of the manufacture, use or sale of the Products or Services ordered or for actual or alleged misuse or misappropriation of a trade secrete resulting directly or indirectly from Supplier’s actions. 

9.3. If a claim under Section 9.2 results, or is likely to result, in an injunction or other order that would prevent Supplier from supplying or Fronius from using Products for their intended purpose, Supplier will at its option and expense either (a) secure a license of the Intellectual Property Right that permits Supplier to continue supplying the Products to Fronius; or (b) modify the Products so that they become non-infringing, so long as the modification does not materially alter the operation or performance of the Products; or (c) replace the Products with non-infringing but practically equivalent Products. 

9.4. Supplier shall not, without first obtaining the written consent of Fronius, in any manner advertise or publish the fact that Supplier has contracted to furnish Fronius the Products or Services herein ordered, or use any trademarks or tradenames of Fronius or its subsidiaries and affiliates in Supplier’s advertising or promotional materials.

9.5. Any compensation which may be claimed by or due to any Supplier or any Supplier’s employee in connection with any information, invention or patent or other intellectual property or intellectual property right, whether by agreement, statute, regulation or otherwise, shall be paid solely by Supplier, and Supplier shall indemnify, defend, and hold Fronius and its subsidiaries and affiliates, and their respective vendors and customers, harmless from and against any Losses arising out of all such claims, suits or proceedings therefore. If an injunction should issue, Supplier shall procure for Fronius, and Fronius’subsidiaries and affiliates, and their respective vendors and customers, the rights to continue using the Products and/or Services supplied by Supplier.

10. Confidentiality

10.1. Trade secrets, specifications, drawings, notes, instructions, engineering data and analyses, compositions of matter, financial data, and other technical and business data which are owned, supplied or disclosed by Fronius or its subsidiaries and affiliates, or Fronius’ agents, representatives or customers in connection with the Order, in each case that are marked or otherwise identified (orally or in writing) as confidential or where their confidential nature is apparent at the time of disclosure (“Confidential Information”), shall be deemed confidential and proprietary to, and remain the property of Fronius or its subsidiaries and affiliates, or Fronius’agents, representatives and/or customers.

10.2. Supplier may not disclose Confidential Information or use Confidential Information for any purpose other than as contemplated under the Order; provided, however, that prior to all disclosures of Confidential Information to a third party, Supplier shall secure Fronius’prior written consent to such disclosure. Upon request by Fronius, the Supplier shall promptly return or destroy the original and all copies of Confidential Information received.

10.3. The obligation to maintain confidentiality of all data and business trade secrets shall survive termination of the contractual relationship. This obligation of confidentiality shall also extend to subcontractors or affiliates of Supplier and where further business dealing negotiations commence but where ultimately no contract is executed.

10.4. Press Releases or other public communications in connection with the Order or this business relationship, or the personnel or affairs of Fronius or its affiliates, including use of the mark or any trademark or similar mark of Fronius or its affiliates, may only be published with the express written consent of Fronius. A revocation of previously granted rights may be made at any time without cause and shall result in the immediate deletion/forbearance of further use (for advertising purposes, reference lists, press releases, etc.) without claims to compensation.

10.5. Upon termination of the Order for any reason, Supplier shall return to Fronius all records, materials and information belonging to and/or received from Fronius, including but not limited to, all Confidential Information and all information accumulated and accrued pursuant to the Order. Supplier is entitled to retain a copy of all such records, materials and relevant information necessary for tax, audit or other legitimate or business reasons for its files, and shall continue to be bound by the confidentiality obligations herein with respect to any such retained Confidential Information.

11. Defects, Inspection and Warranty

11.1. Fronius has the right to reject delivery of any Products or Services not conforming to the terms of the Order. If Fronius rejects any nonconforming Products or Services as nonconforming, the product quantities under the Order shall automatically be reduced unless Fronius agrees otherwise and notifies Supplier in writing. Supplier shall not replace product quantities so reduced without a new order or schedule from Fronius. If Fronius does supply a new order or schedule to replace the nonconforming Products or Services, the Supplier shall replace the nonconforming Products or Services promptly at its own risk and expense. Nonconforming Products will be held by Fronius for disposition in accordance with Supplier’s instructions at Supplier’s risk and expense. Supplier’s failure to provide written instructions within 10 days, or such shorter period as may be commercially reasonable under the circumstances, after notice of nonconformity shall entitle Fronius, at Fronius’ option, to charge Supplier for storage and handling, or to dispose of the Products, without any liability. Payment for nonconforming Products shall not constitute acceptance, and shall not limit or impair Fronius’ right to assert any legal or equitable remedy, or relieve Supplier of any responsibility or liability for defects of the Products.

11.2. Fronius is not required to inspect Products delivered or Services performed, and no inspection or failure to inspect, or testing of or payment for the Products or Services, will reduce or alter Supplier’s obligations under the Order, or prejudice Fronius’ rights in any way.  Supplier agrees that Fronius shall have the right to enter Supplier’s facility at reasonable times to inspect the facility, Products, materials and any property of Fronius covered by the Order. Fronius’ inspection of the Products, whether during manufacture, prior to delivery or within a reasonable time after delivery, shall not constitute acceptance of any work-in-process or finished Products.

11.3. In addition to all implied warranties, Supplier expressly warrants that all Products or Services covered by the Order shall conform to the specifications, drawings, samples, or descriptions furnished to or by Fronius, and shall be merchantable of good material and workmanship and free from defect (whether patent or latent). In addition, Supplier acknowledges that Supplier knows of Fronius’intended use and expressly warrants that all Products covered by the Order which have been selected, designed, manufactured, or assembled by Supplier, based upon Fronius’stated use, will be fit and sufficient for the particular purposes intended by Fronius. Supplier shall indemnify, defend, and hold Fronius harmless from and against any Losses arising out of or in connection with the manufacture, sale, use or delivery of the Products and Services provided by Supplier. Any attempt by Supplier to limit, disclaim, or restrict any such warranties or any remedies of Fronius, by acknowledgment or otherwise, in accepting or performing the Order, shall be null, void, and ineffective without Fronius' written consent and is expressly rejected by Fronius.  Supplier’s warranties shall run to Fronius, its successors, assigns, customers at any tier, and ultimate users.  

11.4. Recalls of Products shall be undertaken by Supplier as required by a governmental agency, court or other authority or in Fronius’ discretion.

12. Indemnification and Insurance

12.1. Supplier shall, at its cost and expense, indemnify, defend and hold harmless, Fronius and its  parent, subsidiaries, affiliates, agents, and representatives, and their respective officers, directors, shareholders, members, managers, employees, agents, and representatives (each, an “Indemnified Party”), from and against any and all Losses incurred by or demanded of an Indemnified Party in any manner resulting from or arising out of, in whole or in part (a) Supplier’s or any subcontractor’s performance of the Order; (b) Supplier’s negligence, willful misconduct, non-performance, breach of these General Terms, breach of warranty, non-compliance with any applicable law or strict liability; (c) injury to any person in the employment of Supplier or any of Supplier’s subcontractors; (d) the presence of Supplier or its subcontractors or any of their employees on Fronius‘ or Fronius’ customers’ premises; (e) any defectiveness or the use of any Product, Service, or equipment owned or provided by Supplier; (f) any decision to recall any Product; and (g) any actual or alleged claim or suit that any Product or Service provided by Supplier or the use thereof infringes the intellectual property rights of any third party. This Section shall survive the termination of the Order for whatever reason.

12.2. Without relieving Supplier of any of its obligations hereunder, Fronius may elect to defend or participate in the investigation and/or defense of any claim at its own expense. Supplier shall not settle or compromise any action, or consent to the entry of any judgment, in any claim for which indemnification may be sought hereunder without the prior written consent of Fronius, which consent shall not be unreasonably withheld or delayed. Except in connection with an indemnification claim hereunder, neither Supplier nor Fronius will be liable to the other for any special, consequential, indirect, or incidental damages, including without limitation lost profits.

12.3. Prior to commencing work, Supplier shall maintain, and upon request, furnish to Fronius a certificate evidencing (a) general liability insurance with coverage limits reasonably acceptable to Fronius and naming Fronius as an additional insured; (b) all risk property perils insurance covering the full replacement value of Fronius’ property while in Supplier’s care, custody, or control and naming Fronius as loss payee; and (c) worker’s compensation insurance as required by applicable law.

13. Compliance with Laws and Safety Procedures 

13.1. Supplier shall comply with all federal, state and local laws, executive orders, rules, regulations and ordinances which may be applicable to Supplier’s performance of its obligations under the Order, including maintenance of any legally required permits and certifications. Supplier shall supply Fronius with information reasonably required in order for Fronius to comply with applicable laws.

13.2. If Supplier's work under the Order involves operations by Supplier on the premises of Fronius or one of Fronius' customers, Supplier shall comply with all of Fronius' and/or Fronius’ customers’ safety and plant security procedures, and shall take all necessary precautions to prevent the occurrence of any injury to person or property during the progress of such work. Supplier shall be responsible for, and indemnify Indemnified Parties and Fronius’ customers (if applicable) for, all Losses arising of or resulting from Supplier’s failure to comply with such safety and plant security procedures.

14. Miscellaneous

14.1. The failure of either Party at any time to require performance by the other Party of any provision of the Order shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver of either Party of a breach of any provision of the Order constitute a waiver of any succeeding breach of the same or any other provision.

14.2. Supplier shall not assign or delegate its obligations under the Order without Fronius’ prior written consent. Fronius may assign or delegate its obligations under the Order without Supplier’s prior written consent. The Order is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.

14.3. Supplier and Fronius are independent contracting parties and nothing in the Order shall make either Party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either Party any authority to assume or to create any obligation on behalf of or in the name of the other.

14.4. These General Terms are to be construed and governed under the laws of the State of Indiana, without regard to its conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Order.  All disputes arising under these General Terms shall be brought exclusively in the State of Indiana or in the federal court for the Northern District of Indiana.

14.5. Except as the Parties may otherwise agree, the Order, data, notices, shipping invoices, correspondence and other writings shall be written in the English language.  In the event of any inconsistency between any terms of the Order and any translation thereof into another language, the English language meaning shall control. 

14.6. If any term of the Order is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule and the remaining provisions of the Order shall remain in full force and effect.

14.7. The Order and these General Terms, together with any other Agreement, constitute the entire agreement between Supplier and Fronius with respect to the matter contained herein and supersedes all prior oral or written representations and agreements.

14.8. Section 1.7, Articles 4, 9, 10, 12 and 14, and any other provisions related to the Parties’ post-termination obligations will survive the termination of the Order for whatever reason.

14.9. The Fronius Material Compliance Guideline, available at define product quality requirements. All products delivered to Fronius must comply with the requirements set out in the Fronius Material Compliance Guideline at the time of contract performance. In the event of non-compliance, the non-compliance product shall automatically be deemed nonconforming and terms of Section 12.1 shall apply. Supplier is further obliged to provide Fronius free of charge with the product information required to verify compliance with the legal requirements and the Fronius Material Compliance Guideline and to store the requested material data information (declarations) completely and correctly in the Fronius online platform provided for this purpose. Supplier is responsible for regularly reviewing the Fronius Material Compliance Guideline and ensure Supplier is still compliant. Any amendment or change to the Fronius Material Compliance Guideline replaces the previous version and is valid with immediate effect from the date of such change.

14.10. Supplier shall comply with the Fronius Code of Conduct ( and any Modern Slavery regulations and human rights regulations defined by various countries (e.g. Great Britain, Australia, etc.), and compliance includes assistance with Fronius’ and its affiliate’s audits if necessary.

14.11. Supplier acknowledges and agrees that a breach or threatened breach by it of any of its obligations in this Section 4 or Section 10 would give rise to irreparable harm to Fronius for which monetary damages would not be an adequate remedy. Accordingly, in the event of such a breach or threatened breach, in addition to any and all other rights and remedies that may be available to Fronius at law, at equity or otherwise, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to provide actual damages or that monetary damages will not afford an adequate remedy. Supplier shall not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction for any order granting equitable relief, in either case, consistent with these General Terms.   

15. Office - Administration

Fronius USA LLC, 6797 Fronius Drive, Portage, Indiana 46368 FEIN#: 26-0036-744; D&B#: 055496827; ID#: 0141720298

General terms and conditions


1.1 General Application. These General Terms and Conditions of Sales and Delivery (“General Terms”) apply to all proposals and quotations submitted by Seller, to all purchase orders received by Seller, and to all sales of goods and services sold by Seller, except as otherwise specifically provided in a document specifically issued by Seller as an exception. Any services to be provided by Seller, whether or not they are otherwise ancillary to and part of a sale of goods (as separate units or included as part of an installation), shall be considered ancillary to a sale of goods and the law adopted by these General Terms shall apply to all goods and services to be provided by Seller (collectively “Goods”). All references to “Seller” include the Seller identified above and any affiliate within the United States of such entity that receives a purchase order referencing or otherwise subject to these General Terms.

1.2 Formation. A written quotation issued by Seller is an offer to sell. A contract shall be formed and Buyer shall be deemed to have accepted the provisions of these General Terms by any of the following: (a) signing and returning to Seller a copy of any quotation within the time provided therein; (b) sending to Seller a written acknowledgment or acceptance of the quotation within the time provided therein; (c) placing a purchase order or giving instructions to Seller respecting manufacture, assembly, or delivery of the Goods (including instructions to build and hold) following receipt of any quotation or these General Terms; (d) failing to cancel a pending purchase order which is not deemed to be an acceptance of an offer by Seller within ten days after receiving these General Terms; (e) accepting delivery of all or any part of the Goods; (f) paying for all or any part of the Goods; or (g) indicating in some other manner Buyer’s acceptance of these General Terms. All sales by Seller consist, in the following descending order of priority, only of these General Terms, terms in other documents which are referred to herein or are attached hereto or in a document provided, signed, or issued by Seller which reference the transaction, and Buyer’s purchase order (excluding Buyer’s standard terms and conditions of purchase and other terms inconsistent with Seller’s quotation and these General Terms) (all of which constitute the “Agreement”).

1.3 Choice of Law and Jurisdiction. THE AGREEMENT SHALL BE GOVERNED, CONSTRUED AND ENFORCED UNDER THE LAWS OF THE STATE OF INDIANA INCLUDING THE UNIFORM COMMERCIAL CODE IN FORCE ON THE INITIAL DATE OF THE AGREEMENT (“UCC”), EXCEPT AS PROVIDED HEREIN. THE U.N. CONVENTION ON THE INTERNATIONAL SALES OF GOODS SHALL NOT APPLY. THE COURTS OF INDIANA SHALL HAVE EXCLUSIVE JURISDICTION OVER THE PARTIES AND THE CLAIMS ARISING UNDER OR RELATED TO THE AGREEMENT, UNLESS WAIVED IN A WRITING SIGNED BY SELLER AND SUBJECT TO ANY RIGHT OF ARBITRATION WHICH MAY BE PROVIDED BY THE AGREEMENT. The parties stipulate to the convenience of Indiana courts in general, and 7th Circuit Court in particular, as to all litigation and shall not file any objection thereto. If Buyer does not maintain a registered office or agent in the United States, Buyer hereby irrevocably appoints the Secretary of State of the state whose law applies and CT Corporation at its office in Indiana as Buyer’s non-exclusive agents to receive process on behalf of Buyer in any proceeding arising under or related to the Agreement for forwarding to Buyer at the address set forth in the Agreement. 


2.1 Prices and Payment. Prices contained in Seller’s published price lists, if any, are subject to change without notice. Prices contained in individual written quotations are firm only for a period stated therein and otherwise for 60 days from the date of the quotation, unless modified in writing by Seller prior to Buyer’s acceptance. After any firm price period in a quotation or other communication, the prices are subject to change, and Buyer should inquire of Seller as to their validity and request a written confirmation or revision. All prices are current from data of purchase Incoterms ex works. Prices are for the Product only, and do not include any amount for freight, insurance, fees, customs duties or federal, state or local excise, value added, sales, use, service, occupation, gross income, property or any other taxes, all of which shall be paid by Buyer even if the tax is assessable against Seller (except for taxes on Seller’s net income). Buyer shall reimburse Seller for any such amounts which are Buyer’s responsibility. Unless provided otherwise in the Agreement, all prices are in United States dollars and must be paid in U.S. dollars at the location specified in Seller’s invoice. Buyer shall pay all government fees levied on the installation and inspection of the Goods. Buyer shall pay upon receipt of all invoices issued by Seller to Buyer for any such items Seller may pay which were the obligation of Buyer to pay under the Agreement.

2.2 Price Adjustments. For services performed under contracts for work and materials (installation, repairs, maintenance and other such work), Seller shall charge its hourly rates and materials prices applicable at the time of completion, plus its applicable surcharges for any overtime, nighttime, Sunday and public holiday working. Travel and waiting times are counted as working hours. Travel expenses and daily and overnight allowances will be invoiced separately.

2.3 Changes to Goods and Schedule at Buyer’s Request. Seller may unilaterally increase prices to cover increased costs (plus reasonable overhead and profit) of design, materials, or manufacturing of the Goods and adjust the delivery schedule or any other performance by Seller, which Seller determines to be required by changes requested by Buyer to the Goods after the date of any quotation. Seller is not obligated to perform any such changes which would substantially affect Seller’s performance, but shall be compensated for them if Seller complies with such requested changes. In addition, if any delay in delivery beyond the date of delivery scheduled at the time of entry of the purchase order is requested or otherwise caused by Buyer, Seller shall adjust the price as provided above in this Subsection.  

2.4 Payment Demand and Acceleration. If, at any time, reasonable grounds for insecurity arise with respect to Buyer’s performance of its payment or other obligations hereunder, Seller may demand immediate payment in full or a documentary or standby letter of credit issued or confirmed by a U.S. bank acceptable to Seller or other financial security or other assurance for such payment or other performance. In addition, all amounts owed by Buyer to Seller shall be accelerated and payable immediately if Buyer fails to make any payment and as otherwise legally required, if Buyer sells or transfers the line of business for which the Goods are purchased, or if Buyer is a participant in a merger or other reorganization.

2.5 Export Fees. All export permits and licenses and the payment of all export duties and customs fees shall be the responsibility of Seller, if Seller is obligated by the Agreement to deliver the Goods within the United States. All export duties, fees, permits, licenses, etc., for Goods to be delivered outside of the United States shall be the responsibility of Buyer.

2.6 Payment Terms. Buyer shall pay for all deliveries of Goods net 30 days after delivery.

2.7 Installments. The Agreement may require or Seller may elect to deliver the Goods in installments. Each installment of Goods to be delivered is to be considered as a separate sale. Invoices may be rendered separately for each shipment (including any early shipment) made by Seller. Buyer shall pay timely the price for each installment which is delivered. Any Goods indicated as back-ordered now or in the future shall be considered an installment delivery. A failure to pay for an installment when due is a material anticipatory breach of other installments by Buyer, unless the failure to pay is the result of a good faith dispute and Buyer deposits the amount in dispute into an escrow with an independent third party.

2.8 Carrying Charge. All amounts not paid to Seller when due shall incur a carrying charge of 1.0% per month above the current LIBOR one month rate to the extent allowed by law and otherwise at the highest written contract rate allowed by law plus other allowable damages. Buyer shall reimburse Seller for all costs of collection, including reasonable attorney fees, of amounts not paid when due.

2.9 Buyer’s Failure to Cooperate. All amounts due on inspection, delivery, installation, acceptance or other event which requires the action or cooperation of Buyer which Buyer fails to supply timely shall become due upon such failure, irrespective of whether or not the Goods are formally accepted by Buyer or the Goods have been installed.

2.10 Letters of Credit. Unless otherwise provided in the Agreement, if the Agreement permits or requires the use of a letter of credit, the letter of credit must be a documentary letter of credit which is assignable, irrevocable, confirmed by a United States bank with a payment office in Indiana acceptable to Seller, payable in installments, and require payment to Seller on submission of Seller’s invoice and a bill of lading or other proof of delivery, and Seller’s statement that a payment is due. Any such letter of credit must be issued and accepted by Seller before date of proposed initiation of production of the Goods or acquisition of produc-tion material or component; otherwise, Seller reserves the right to postpone production and delivery without liability to Seller. If a required letter of credit is not received within 30 days prior to the proposed initiation of production, Buyer shall be in material default.

2.11 Right of Offset. Seller may offset or recoup any amounts owed by Seller or an affiliate of Seller to Buyer or an affiliate of Buyer against any amounts owed by Buyer or an affiliate of Buyer to Seller or an affiliate of Seller. Buyer waives any right of offset or recoupment and shall pay all amounts owed to Seller when due regardless of any claim of Buyer regarding warranties or other issues arising under contract, tort, statute or otherwise. Payment of such amounts by Buyer under written protest shall not constitute a waiver by Buyer of its claims.

2.12 Allocation of Payments. Seller may allocate payments from Buyer among outstanding invoices in Seller’s discretion.

2.13 Samples. Samples of Goods and sample test reports will be provided by Seller only upon Seller’s consent and at prices established by Seller or written agreement with Buyer.

2.14 Withholdings from Amounts Due Seller. If a legal requirement requires Buyer to deduct an amount as a withholding tax or other government fee (however it may be described in such legislation) from any payment under the Agreement such that Seller will not actually receive on the due date the full amount provided for under the Agreement, Buyer shall provide Seller with 60 days’ written notice of such obligation, and on the due date:

(a) Buyer shall deduct the amount for the withholding tax;

(b) Buyer shall pay an amount equal to that amount deducted to the relevant authority in accordance with applicable law and give to Seller the original receipt or other proof of payment required for Seller to obtain a refund;

(c) Buyer shall pay Seller an amount equal to the difference between the payment otherwise due and the amount deducted;

(d) Buyer shall also pay Seller the amount deducted; and

(e) Seller shall, after receiving reimbursement of the withheld amount, if any, repay Buyer the amount recovered after deducting the expenses incurred in obtaining reimbursement.

2.15 Software Disablement for Accounts Exceeding 30 Days. Seller may include or add a disabling function within the software programming of the Goods that may be activated by Seller or the passage of time if any outstanding amounts have not been paid to Seller within 30 days of the due date. The disabling code will be deactivated and functionality of the Goods will be restored when all amounts due (including interest and other charges) are paid.

2.16 Retention. If temporary retention by Buyer of any portion of the price is permitted under the Agreement, it shall be paid upon the earlier of written acceptance of the Goods and 30 days from substantial completion of Seller’s obligations under the Agreement.

2.17 Cumulative Rights. All remedies of Seller under the Agreement are cumulative and to the extent not specifically waived under the Agreement in addition to those provided by law. 

2.18 Solvency of Buyer. Buyer represents that it is solvent and able to pay the price for the Goods and that all financial and business information given to Seller is correct. If Buyer becomes insolvent before delivery of the Goods, it shall notify Seller. Acceptance of delivery shall be a reaffirmation at delivery of Buyer’s solvency, and that there has not been a material adverse change in such information.


3.1 Shipping Dates. Shipping dates are estimates based on Seller’s and/or its supplier’s present engineering and manufacturing capacity and scheduling, and may be revised by Seller upon receipt or scheduling of Buyer’s purchase order and/or delivery releases. All shipping dates are approximate and shall be computed from the date of entry of the purchase order and/or delivery releases on Seller’s books. All shipping dates are further subject to Seller’s prompt receipt from Buyer of a written purchase order or formal acceptance, letter of credit, deposit and other conditions as specified in the Agreement, and of all drawings, information and approvals convenient or necessary for Seller to provide the Goods and/or to grant any credit terms.

3.2 Method, Cost and Insurance of Shipment. Seller shall deliver the Goods ex works Incoterms in the current version from date of purchase by tendering the Goods for placement in the possession of a carrier and, unless otherwise advised by Buyer in writing, without liability, shall make such contract for their transportation as Seller decides having regard for the nature of the Goods and other circumstances. Seller will generally follow Buyer’s shipping instructions, but may make reasonable changes thereto without liability and at Buyer’s cost. On Buyer’s request, Seller shall obtain and send to Buyer upon its reasonable request documents to assist Buyer in obtaining insurance. Seller is not responsible to prepay transportation or insurance costs. Buyer shall pay all handling and other charges incidental to transportation. Buyer is responsible for making any claim against the carrier, riggers and other handlers of the Goods after delivery to Buyer.

3.3 Risk of Loss and Title. The Agreement is for a shipment contract and the Goods shall be delivered ex works Seller’s dock or ex works Seller’s supplier’s dock if the Goods are to be shipped directly from Seller’s supplier to Buyer. Whether or not Seller prepays shipping charges shall not affect the passing of the risk of loss to Buyer notwithstanding any provision of law to the contrary. Notwithstanding the transfer of the risk of loss, title to the Goods shall remain with Seller until Buyer pays for the Goods in full and fully performs all other obligations related to delivery and installation of the Goods.

3.4 Shipping and Packaging. Except as otherwise provided in the Agreement, Seller shall not be responsible for any freight, transportation, insurance, shipping, storage, handling, demurrage or similar charges arising out of the performance of the Agreement. If such charges are specifically included in the price or Seller’s obligations, any increase in rates for such services becoming effective after the date the price is quoted to Buyer shall be added to the price. All Goods shall be packed with disposable dunnage for shipment by Seller for over-the-road travel transportation, and for placement in a seaworthy container if transportation under the Agreement includes transportation by sea, in accordance with Seller’s standard practices. It is Buyer’s responsibility, whether or not Seller arranges shipping, to determine whether additional packaging procedures and materials are appropriate for the shipment of Goods and advise Seller in writing of Buyer’s requirements. Buyer shall pay Seller for the additional procedures and materials. Buyer shall pay Seller for additional handling charges for small, expedited or other shipments outside Seller’s normal and ordinary course of business or the normal performance of the Agreement.


4.1 The delivery period commences with Seller sending the order acknowledgment, while the performance period for installation, maintenance or repair work shall commence when the equipment is delivered. In no event shall the delivery or performance period begin sooner than 14 days after the time when Buyer has furnished Seller with the documents (e.g., engineering drawings, plans, etc.), permits or approvals which it shall procure or when it has made all requirement payments. The delivery or performance deadline is deemed to have been met if Seller has notified Buyer prior to such deadline of Seller’s readiness to delivery or perform. In cases where a special agreement obliges Seller to deliver, the delivery of performance deadline shall be deemed to have been met if the Goods have been shipped prior to such deadline.

4.2 Delayed Shipment. If shipment of any Goods or other performance by Seller is delayed at the request of or due to the fault of Buyer, Seller may at its option hold the Goods at the place of manufacture or elsewhere at the risk and expense of Buyer from the time the Goods are ready for shipment. In the event of any such delay in shipment, full and final payment for Goods shall be due and payable 30 days after Buyer is notified that the Goods are ready for shipment. If Seller is unwilling to accommodate Buyer by holding such Goods, Buyer shall accept shipment immediately. If Buyer requests temporary storage of Goods prior to final delivery, Seller will attempt to provide or arrange such storage, but a reasonable charge for storage as computed by Seller plus all expenditures incurred for space, insurance, and handling will be charged to Buyer. Invoices for Goods stored at Buyer’s request will be provided at the beginning of the storage period and periodically thereafter, and payment will be due net 30 days from the date of invoice billed in advance.

4.3 Supply Allocation. Whenever Seller’s supply of the Goods, materials or means of production or source of supply is insufficient to meet the estimated delivery schedule or in the event of any occurrence mentioned in Subsections 4.1 and 4.1, Seller, in its sole discretion, may allocate its supply to its own use, to Buyer, and to other customers. Subsections 4.1 and 4.2 shall be effective even as to events described in Subsections 4.1 and 4.2 which exist on the date of a quotation or of contract formation.

4.4 Force Majeure. All inspection, delivery and other dates for Seller’s performance are estimates only. In addition, Seller shall not be in default because of its delay or failure to deliver or perform under the Agreement resulting, in whole or in part, from: (i) any foreign or domestic embargoes, seizures, acts of God, insurrections, war, or the adoption or enactment of any law, ordinance, regulation, ruling or purchase order; (ii) shortages of raw materials or labor; (iii) the lack of usual means of transportation, fires, floods, explosions, strikes or other work actions, or any other accidents, contingencies, or events, at Seller’s or its supplier’s plant or elsewhere (whether or not beyond Seller’s control) which directly or indirectly interfere with, or render substantially more burdensome, Seller’s production, delivery, or other performance; (iv) delays by Buyer in inspecting and acceptance, in furnishing requested specifications, materials, tooling or information, in making payments, or otherwise; or (v) failure of Seller’s suppliers to perform. If one or more deliveries hereunder is delayed by reason of any one or more of such occurrences for a period of 30 days, Seller may, at its option, terminate the Agreement as to the undelivered Goods or waive such delay and establish a new delivery schedule.


5.1 General. Seller warrants to Buyer only, subject to the disclaimers and limitations of the Agreement, that Goods to the extent manufactured by Seller shall be free from defects in materials and workmanship at the time of delivery which are discovered and reported to Seller within the period of 24 months from the delivery date. From the beginning of the 13th month of this period, however, Seller’s warranty shall be limited to making available, free of charge, the items needed for remedying the defects; from this time onwards, any warranty claims going beyond the above shall be inadmissible. This period limitation also applies to the supply of items deemed to be immovable and to work on items which are, or are deemed to be, immovable. The warranty period shall start to elapse upon the passage of risk. Buyer must always prove that defects coming to light during the warranty period were already present at the time of the passage of risk. This is not a warranty of performance, but a limited warranty as to the condition of the Goods at delivery. Seller does not warrant any portion of the Goods not designed, developed or manufactured by Seller (whether or not specified by Buyer), but Seller shall assign to Buyer upon request all assignable warranties of Seller’s suppliers related to such Goods. Because the Goods may be subject to a wide variety of use, installation, maintenance, cleaning, and other factors, the warranty is only against the named defects and not against any other defects or failures such as, but not limited to, those due to normal wear and tear, normal maintenance and unknown causes. Perishable and wear items are excluded from warranty against defects. Buyer shall ensure that all computer equipment and software included with or used with the Goods has adequate protection against viruses or other malicious software after initial installation. Seller’s warranty does not cover damage or contamination caused by such malicious software. Notwithstanding anything to the contrary, there is no warranty as to prototype Goods.

5.2 Seller’s Warranty. In cases where Seller gives warranty, Seller shall, at its own discretion and within a reasonable period of at least four weeks’ duration, either exchange the defective article itself, or its defective components, for a defect-free article or defect-free components, or remedy the defect(s), or grant Buyer a reasonable reduction in price, or (unless the defect in question is a minor one) cancel the contract. The warranty period is not prolonged by the exchange of the item or of parts or components belonging to the item. If, however, the remainder of the warranty period, including that part of the period during which Seller’s warranty is limited to free provision of the requisite materials in accordance with Subsection 5.1, lasts for less than 12 months, then the warranty period for the exchanged items, parts or components shall be extended to 12 months. The items, parts or components thus exchanged shall become Seller’s property. Seller shall not refund the costs for any actual or attempted remedying of a defect by Buyer or by any third party.

5.3 Conformity. Included in Seller’s warranty against defect is Seller’s warranty to Buyer only that the Goods will be as described in the Agreement in all material respects, subject to the limitations stated herein and Seller’s published and internal standards; however, Seller retains the right to change the dimensions, composition, design, performance, color and appearance of the Goods without liability if, in its judgment, the change is nonmaterial. Seller may, in its discretion, also rely on any generally accepted industry standards and deviations in making changes and in manufacture.

5.4 Warranty Requirements. Seller’s warranties against non-conformities and defects shall continue to apply only so long as the Goods: (i) have been installed, maintained and used in conformity with instructions furnished by Seller from time to time, if any, and otherwise in conformity with the highest industry practices; (ii) have been subjected to normal use for the purpose for which the Goods were designed; (iii) have not been subjected to misuse, negligence or accident; (iv) have not been altered or repaired by persons other than Seller or Seller authorized warranty service providers in any respect which, in the judgment of Seller, adversely affects the condition or operation of the Goods; and (v) have beenw fully paid for.

5.5 To the extent that is necessary and may reasonably be expected of Buyer, the object of delivery or performance, or the defective part(s) thereof, are to be dispatched or shipped to Seller immediately at our request, at Buyer’s risk and expense, failing which any and all warranty obligation on Seller’s part shall become void.

5.6 Buyer is not entitled to withhold payments on account of warranty claims or other counterclaims not recognized by Seller.

5.7 Warranty claims from Buyer are excluded in cases where the installation, user and operating manuals provided by Seller, or to be requested from Seller by Buyer, have not been observed, or where the user has not been (fully) obligated to observe such instructions; if the installation work has not been performed properly and in accordance with the relevant Standards, and in particular if was not carried out by licensed contractors; if any corrective maintenance or other work has been performed on the object of delivery or performance without Seller’s consent; if it has been improperly operated or used, or operated despite its protective features being faulty, or taken out of the contract territory without our consent, or used contrary to Sellers’ instructions or for purposes for which it is not intended; and, moreover, where defects are attributable to foreign object damage, chemical influences, overvoltage, the conduct of third parties or to force majeure; the same applies in respect of natural wear and tear.

5.8 Seller’s warranty is also excluded in cases where Seller has been contracted to carry out repair orders, to alter or modify used items, or to supply such items.

5.9 Finally all guarantee claims shall be excluded if Buyer installs third party components or replacement parts in Seller’s delivery items or services provided by Seller which have not been expressly recommended by Seller prior thereto.

5.10 In addition to the rights of Buyer in accordance with Subsection 5.2 regarding the delivery of inverters for photovoltaic systems the warranty in accordance with the warranty conditions of Seller shall apply, available at 

5.11 Records. Buyer shall create, maintain and make available to Seller, permanent records of the installation, maintenance, use and disposition of the Goods. The warranty does not apply when the malfunction results from the use of the Goods in conjunction with accessories, other products, or ancillary or peripheral equipment and Seller determines that there is no defect in the Goods.

5.12 Transfers. Seller’s warranties are granted only to Buyer and apply only so long as the Goods remain in the country of destination and on the initial premises of installation unless otherwise agreed to in writing by Seller. Furthermore, the warranties are voided when Goods are moved to new locations without written permission from Seller.  


6.1 Seller shall defend and indemnify Buyer from any claim which asserts that the Goods or their inherent methods of operation, intrinsically, infringe any United States patent, except as to a claim based on Buyer’s modifications and use of the Goods as a step in an overall process or as an element in an overall combination. Seller’s obligation shall not apply to a claim based on the Goods or portions thereof specified, designed, or manufactured by Buyer. Buyer shall notify Seller promptly of any assertions of patent infringement and provide Seller with assistance and information requested by Seller for its defense, or Seller shall have no further obligation to defend or indemnify. Seller shall defend with its counsel or other counsel of its choice and shall have the sole right, without consultation with Buyer, to take all action Seller deems appropriate to prosecute or settle such claims. Seller’s exclusive obligation to indemnify as to the Goods declared to infringe is limited to the acquisition of a License, the replacement of the Goods with non-infringing Goods, the modification of the Goods so that they are non-infringing, or the return of the purchase price and shipping costs in exchange for the Goods, as Seller may elect. This Section states Seller’s entire and exclusive obligation regarding patent infringement and the exclusive remedies therefor, and Buyer waives all other rights. Seller disclaims any implied warranty of non-infringement. Buyer shall defend and indemnify Seller for all infringement claims (including direct, contributory and inducement) based on Goods or portions thereof specified, designed or manufactured by Buyer.


7.1 For software delivered together with other items or for software delivered separately from Goods (hereafter “software”) these Terms and Payment only apply insofar as these do not deviate from the following conditions or from conditions agreed upon separately with Buyer in writing.

7.2 Scope of Use. All rights of intellectual property, such as copyright, trademark rights, design rights, patent rights, utility model rights and know-how, as well as in particular unprotected inventions, commercial experience, trade secrets and such like, independent from the time these were disclosed to Buyer, shall be reserved at any time by Seller or Seller’s licensors. Buyer shall have the right to use the software after payment of the agreed sum exclusively for its own purposes in accordance with the acquired number of licences. With the present contract only the authorization to use the software is acquired. Dissemination by Buyer shall be excluded in accordance with the copyright law. With a possible participation of Buyer in producing the software, no rights other than the specified usage laid out in this Section are acquired. Buyer may only use the software simultaneously on one device, which one is its decision. Usage of the software shall constitute any long-term or even any temporary duplication (copying) of the software, whether in whole or also only in part, by saving, loading, running or displaying for the purpose of execution of the software and processing of the data contained therein by the hardware. Buyer shall not be authorized to copy the user manual. Buyer shall be permitted to make copies of the software for archival and data protection purposes on condition that there is no explicit prohibition in the software or any accompanying material (instruction manual, packaging, etc.) and that all copyright and proprietary notices are transferred unchanged in these copies. Retranslations of the program code (decompilation) exceeding the legal provisions shall not be permitted. If the software is equipped with technical copy protection, Buyer shall in the case of damage be supplied with a replacement copy after restitution of the data carrier.

7.3 Further Rights. In the event of availability of a new software version Buyer shall be entitled to exchange the supplied software package for a similar software package of the new version at our listed update price; the exchange implies the software package as a whole, as it was acquired by Buyer. With the exchange Buyer´s permission to use the exchanged software package shall expire. In such an event Buyer shall immediately and completely destroy all copies, partial copies and backup copies as well as altered or revised versions of the software and the copies, partial copies and backup copies made thereof .

7.4 Warranty

(a) Buyer shall note that it is not possible to develop software programs in such a manner that these are free from defects for every application condition.  

(b) Seller shall warrant that the supplied software fulfils the agreed functions and has the expressly guaranteed properties. Requirement for any warranty is usage according to contract. A defect for which Seller is responsible shall only be deemed to exist if the software does not function according to the most recent version of the corresponding performance description and documentation and if this is reproducible by Buyer. In order to carefully examine possible occurring defects Buyer shall be obliged to support Seller in the rectification of any defects.

(c) Seller shall further warrant that the original software is duly recorded onto a tested data carrier. Excepted here from are previously installed software and third-party software products.

(d) Software defects shall be documented by the user and Seller shall be notified in writing with immediate effect. 

(e) The warranty period shall always be 12 months; the period commences with the dispatch of the software package.

(f) If the software package is not usable or defective, Seller shall exchange it primarily for a new one of the same title or for an adequate alternative solution. If this also proves to be unusable or defect and if Seller is not in a position to make it usable with adequate effort within an adequate time, but at least within a period of four weeks, Buyer may demand a price reduction or a change. In the case of change shall apply accordingly. Costs of defect rectification by Buyer or a third person shall not be compensated by Seller. 

(g) In excess of Subsection(f) Seller shall not provide warranty, in particular not in the case of the supplied software not meeting the special requirements of Buyer or user, and also not for altered or revised versions of the software (Subsection 7.2), unless Buyer can prove that the defects are not connected to the alterations or revisions. Buyer itself is solely responsible for the selection, installation and usage of the software as well as for the results intended therewith.

(h) In the event of unjustified assertion of defects in the software Seller shall be entitled to charge Buyer with any incurred costs according to valid cost rates.


8.1 There are no express warranties other than those contained in the Agreement and they are not assignable. Any representations as to performance and other matters, except as specifically contained in the Agreement, were for illustrative purposes only and do not constitute a warranty. Whether or not the Goods are to be used exclusively by Buyer, there shall be no third party beneficiaries to the express warranties contained herein unless specifically provided and identified. Seller is not responsible for any errors or omissions or for any loss or damage resulting from reliance on catalogues, brochures, price lists or other information provided to Buyer from Seller, including, without limitation, any descriptions, shipping specifications, illustrations, representations as to quality or capabilities, or any other information. Such information provided by Seller is intended for general information only and is not a representation, warranty or other obligation of Seller. Buyer is to conduct its own tests or include in the written Agreement any express obligations of Seller which Buyer deems material. Seller does not warrant that it or the Goods are in compliance with any entity, organization or industry standards, guidelines or procedures unless specifically contained in the Agreement.


9.1 General Remedies. Defective or non-conforming Goods or parts thereof discovered and reported during the express warranty period shall be repaired, or replaced by Seller without any additional charge, and shipped to Buyer, FOB Seller’s plant, for reinstallation by Buyer at its cost, subject to the terms hereof of the Agreement, as Buyer’s exclusive remedy. The warranty obligation of Seller is limited to the repair or replacement at Seller’s plant of any part of the Goods which Buyer shall, within the warranty period, return to Seller, with transportation charges prepaid by Buyer, and which Seller shall determine upon examination to be defective or not in conformity with the express warranties contained herein. Goods cannot be deemed defective or non-conforming if Seller cannot duplicate the alleged failure. In lieu of repair or replacement, if Seller elects, Seller may, upon return of such Goods and making a determination of nonconformity or defect, keep the Goods and refund the purchase price as Buyer’s exclusive remedy. Seller may provide such repairs itself or through its third party contractors. Buyer’s remedies shall be limited (even in the event of Seller’s default of its warranty obligations or a failure of an item to meet its intended purpose) exclusively to those provided in this Section. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE, REGARDLESS AS TO WHETHER SELLER’S LIABILITY ARISES UNDER CONTRACT, TORT, STRICT LIABILITY STATUTES, OR OTHERWISE, FOR EXEMPLARY, PUNITIVE, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO: LOSS PROFITS OR REVENUES; INCREASED COSTS; DAMAGE TO EQUIPMENT, TOOLING,PREMISES, OR WORK-IN-PROCESS; COST OF CAPITAL; COST OF PURCHASED POWER; SUBSTITUTE OR ADDITIONAL EQUIPMENT, FACILITIES OR SERVICES; COST OF PRODUCTION INTERRUPTION OR START-UP; OR THE CLAIMS OF THIRD PARTIES FOR SUCH DAMAGES, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE OR SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Each provision of the Agreement which provides for a limitation of liability, disclaimer of warranties, or exclusion or limitation of damages or remedy is severable and independent of each other and to be enforced as such. Buyer waives any causes of action or theories of liability relating to or arising under the Agreement including, but not limited to, those arising under contract, tort, strict liability, product liability statutes, or otherwise, except as specifically provided by the UCC as modified and limited herein. The replacement or repair of Goods by Seller does not give rise to any new or extended warranty, and the warranty period provided for herein shall not be extended by the length of any period from the date the defective or non-conforming Goods are received by Seller until the date the repaired or replacement Goods are delivered to Buyer or otherwise.

9.2 Buyer’s Obligations. Buyer shall contact Seller to request warranty coverage, a return authorization number, and other instructions relating to the return of Goods or parts thereof. If requested by Seller, Buyer shall issue a new purchase order or amendment to Seller for replacement parts, subject to Seller issuing a credit memo if Buyer’s claim for warranty coverage is approved. Buyer shall provide with any claim in writing a complete description of the non-conformity or defect. Buyer shall comply with Seller’s return instructions (including return of the Goods) within 30 days or the claim shall be deemed conclusively to have been abandoned. Buyer is responsible for properly tagging, identifying and packing returned Goods. Goods returned without compliance with the above procedures shall be returned to the sender at sender’s cost.

9.3 Sole Remedy. This Section sets forth Seller’s sole liability and entire obligation and Buyer’s exclusive remedy for any action that is brought against Seller.


10.1 SELLER DISCLAIMS ALL IMPLIED WARRANTIES AND SIMILAR OBLIGATIONS (OTHER THAN THAT THE GOODS WILL BE NEW AND GOOD TITLE) INCLUDING BUT NOT LIMITED TO THOSE OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND MERCHANTABILITY, WHETHER OTHERWISE ARISING BY LAW, CUSTOM, USAGE, TRADE PRACTICE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. There are no warranties which extend beyond those express warranties contained in the Agreement. Buyer affirms that it has not relied upon Seller’s skill nor judgment to select or furnish the Goods for any particular purpose beyond the specific express warranties in the Agreement. Any design provided by Seller is based on information provided by Buyer. Seller may rely entirely on information provided by Buyer and is under no obligation to verify such information or take any action to obtain explanatory or supplemental information from Buyer or third parties. Buyer’s approval of drawings and/or prototypes constitutes Buyer’s acceptance and waiver of any responsibility for a failure to consider or correct information or approval provided by Buyer. Any modifications of drawings, prototypes and other work of Seller after approval by Buyer shall be at Buyer’s expense at Seller’s normal rates for services and materials. Seller does not warrant the Goods will comply with the requirements of any safety or environmental code or regulation of any federal, state, municipality or other jurisdiction beyond the specific express warranties in the Agreement. Seller does not warrant that the Goods will operate with any accessories or within any system not sold under the Agreement and Seller’s warranty is limited to the operation of the Goods in a stand-alone mode, unless specifically stated in Seller’s written specifications. Some countries, states, or provinces do not allow the exclusion or limitation of implied warranties or the limitation of incidental or consequential damages for certain products supplied to consumers, or the limitation of liability for personal injury, so such limitations and exclusions may be limited in their application to an end user and others. When the implied warranties are not allowed to be excluded in their entirety, they will be limited to the duration of the applicable written warranty. The warranty gives specific legal rights which may vary depending on local law.


11.1 Third Party Claims. Buyer shall indemnify, and at Seller’s request defend, Seller from any and all third party claims, damages and expenses (including reasonable attorney fees) under theories of tort, product liability, negligence (ordinary or gross), warranty, contract, statute or otherwise arising out of the use, storage, sale, processing or other disposition of the Goods, supplies or materials used in connection with the Goods, or parts, components and systems manufactured with the Goods, if the action or inaction of Buyer or its employees, customers or agents, or Buyer’s or customer’s design specifications, were a material or proximate cause of injuries or damages giving rise to claims against Seller. Buyer shall defend and indemnify Seller from all liability for claims, damages, losses and expenses incurred as a result of the advice furnished by Seller to, and relied on by, Buyer’s contractors to the extent the liability exceeds any liability as limited by the Agreement had the advice been furnished to, and relied on by Buyer.

1.2 Buyer’s Indemnity for Unsafe Use. Buyer shall use and shall require its employees and all other users of the Goods to use all safety devices and guards furnished with or intended to be used with the Goods, and to follow proper safe operating procedures in accordance with general industry standards and as set forth in manuals and instruction information furnished by Seller and as otherwise required by the Agreement. If Buyer fails to comply with the obligations set forth in this subsection, Buyer shall indemnify and save Seller harmless and on Seller’s request defend Seller from any liability or obligation incurred by Seller to persons injured directly or indirectly in connection with the operation of the Goods and all warranties of Seller shall become automatically void. Buyer shall notify Seller promptly, and in any event within 30 days, of any accident or malfunction involving Goods which results in personal injury or damage to property and shall cooperate fully with Seller in investigating to determine the cause of such accident or malfunction, including allowing Seller access to the Goods and Buyer’s reports regarding the Goods for Seller’s inspection. If Buyer fails to provide such notice and cooperation to Seller, Buyer shall indemnify Seller from any claims arising from such accident or malfunction whether or not the Goods are non-conforming or defective.


12.1 In addition to any security interest granted by the UCC or other law, Buyer hereby grants a security interest to Seller in all Goods and documents related thereto and proceeds and products therefrom to secure all obligations of Buyer to Seller, whether or not arising under the Agreement. Seller may file a financing statement and at Seller’s request, Buyer shall sign financing statements and other documents, which evidence perfect and confirm the security interest. Buyer grants Seller an irrevocable power of attorney to sign Buyer’s name to a financing statement or other similar documents if necessary or convenient to perfect Seller’s security interest. Buyer shall not change the name of Buyer, the jurisdiction of Buyer’s formation, or the location of any Goods from the original delivery point or installation site without prior written notice to Seller. Buyer shall provide a lien waiver or subordination from all third parties to whom the Goods may be delivered. Buyer shall provide a landlord’s waiver or subordination of any lien rights at the premises to which the Goods are to be installed. In case of a default by Buyer, Seller may peaceably enter the premises of Buyer and others and take other actions to repossess or render inoperable all Goods in which it has a security interest provided that Seller provides Buyer with immediate notice it has rendered the Goods inoperable. In case of a default by Buyer, Buyer hereby irrevocably appoints Seller as its agent to obtain possession of the Goods and documents related thereto. Seller may install and activate procedures or devices to make the Goods or Software non-operative upon Buyer’s default. The Goods shall be and remain strictly personal property whether or not affixed or attached on permanent foundation or affixed or attached to building or structure. Title shall not transfer to Buyer until the Goods shall be paid in full. Buyer shall maintain the Goods which constitute inventory in a segregated area and not comingle any Goods which are not fully paid. Buyer shall not sell, exchange, transfer, convey, mortgage, pledge, hypothecate or grant a security interest in any Goods which are subject to the Agreement until payment has been made in full to Seller, at which time title shall transfer to Buyer. Buyer shall immediately advise Seller in writing of any damage to, change in location of, or seizure of, any of the Goods the price of which has not been paid to Seller.


13.1 Buyer’s Rights to Confidentiality. Buyer acknowledges that any information disclosed to Seller has not and will not be considered by Buyer to be confidential or a trade secret unless clearly and conspicuously noted on the disclosure, or in some other writing delivered to Seller at or prior to the time of the disclosure.

13.2 Seller’s Rights to Confidentiality. All proposals, plans and other information furnished by Seller in bidding, negotiating and performing the Agreement, are confidential and the property of Seller, whether or not marked “Confidential”, and shall not be shown or disclosed to any other bidder, and shall not be shown or disclosed to any other third party or used by buyer unless necessary for the selection or use of the Goods and notice of such disclosure has been given to Seller. Buyer shall treat as confidential any quotation or other business proposal from Seller and all technology which shall be made available, directly or indirectly to Buyer by Seller and by Seller’s licensors, including but not limited to drawings, schematics, specifications, bills of material, test results, analysis, recommendations, models, and designs, and Buyer shall use such proposal and technology only to evaluate its business relationship with Seller and to enable Buyer to perform under the Agreement. Buyer shall not manufacture or sell any product using confidential information provided by Seller or obtained from reverse engineering or decompiling Goods of Seller. Buyer shall not disclose, or authorize or instruct any third party to disclose, any confidential or proprietary information of Seller to any third party that is not bound by contract to at least the same duty of confidentiality to Seller as is Buyer. In addition, only those employees and contractors of Buyer having a need-to-know and bound by contract by the same confidentiality provisions as Buyer may be given access to such technology. Buyer shall maintain, for Seller’s inspection, written records which shall include the names and address of such employees and contractors granted such access. Buyer shall indemnify Seller from all expenses and damages related to the improper use or disclosure by Buyer or its employees and contractors. Business proposals and technology of Seller may be protected by patent, copyright, trademark and other law. No license or other right to business proposals or technology is granted to Buyer except as specifically provided in the Agreement.

13.3 Patentable Features. Any design, invention or other information developed by Seller in the performance of the Agreement shall remain the property of Seller, whether or not Seller charges for design, research, development, testing, or similar services. Any patentable features developed by Seller in the performance of the Agreement, alone or in cooperation with Buyer, shall be the property of Seller and Seller shall be under no obligation to refrain from using in its business any information, manufacturing processes or unpatented disclosures which may pass to it from Buyer in the performance of the Agreement, except as provided in Subsection 13.1.

13.4 Drawings and Calculations. Seller is not obligated to furnish detailed or shop working drawings, manufacturing drawings, engineering calculations, computer programs, or other information for any Goods or part thereof.

13.5 Trade Secrets. Goods and related Software contain valuable trade secrets of Seller, and Buyer shall not translate, reverse engineer, decompile or disassemble or make any other unauthorized use of such Seller Software and Goods. Since unauthorized use of such Seller Software and Goods will greatly diminish the value of such trade secrets and cause irreparable harm to Seller, Seller, in addition to any other remedies it may have, shall be entitled to equitable relief to protect such trade secrets, including without limitation temporary and permanent injunctive relief without providing further proof of irreparable harm by Seller.

13.6 Restrictions on Other Purchases by Buyer. Buyer shall not purchase from any supplier of Seller any Goods or components thereof which have been purchased by Buyer from Seller until two years after the last purchase of such Goods or components from Seller, unless Buyer gives Seller seven days prior written notice of its intent to make such purchases.



14.1 Default. If Buyer defaults in the performance of its obligations, if Buyer advises Seller that it will default in the performance of its obligations, or if any action is started by or against Buyer seeking the appointment of a trustee or receiver or the entry of a protective order for debtor’s relief for Buyer, Seller may cease performance of its obligations, recover the Goods in transit or delivered, disable delivered Goods, and otherwise enforce its remedies for Buyer’s default.

14.2 Seller’s Damages. Seller shall be awarded interest, consequential and incidental damages, and costs (such as but not limited to actual reasonable attorney fees) in any proceeding to enforce its remedies in which it obtains relief or damages or in which it prevails in the defense of any action by Buyer.

14.3 Security. Seller may require that within 21 days of demand Buyer post security for any or all amounts to be paid if Seller has a good faith doubt as to Buyer’s ability to make prompt payment. If such security is not posted, Seller shall have the right to cease performance of its obligations and enforce its remedies for Buyer’s default.

14.4 Cumulative Rights and Limitations. All rights granted to Seller and all limitations in favor of Seller in the Agreement and by law are cumulative, provided Seller shall be entitled to only a single full recovery.

14.5 Good Faith. Seller shall not be liable in damages or otherwise for any action taken pursuant to a good faith exercise of any of its rights under the Agreement or law.

14.6 Waiver. Seller’s failure or delay in enforcement of any provision shall not constitute a waiver of a default or of the provision itself.

14.7 Substantial Compliance. Seller shall not be liable for any damages for breach of any provision of the Agreement with which it has substantially complied.

14.8 Currency. The choice of currency expressed in the Agreement and the place of payment are essential terms and there are no equivalent terms. Any money judgment rendered under the Agreement shall be converted in any enforcement action in a jurisdiction in which the local legal currency is other than as expressed in the Agreement shall be converted into the legal currency of the enforcing jurisdiction at the current New York rate of exchange as published in the Wall Street Journal on the date of entry of the original judgment.

14.9 Cancellation. Buyer may cancel its purchase order for the Goods prior to their completion by immediate payment to Seller of Seller’s cost of manufacture and liquidated damages (including labor, engineering, materials, equipment time and overhead) computed using Seller’s standard internal costing procedures, plus 15% of the sale price of the Goods. Cost of manufacture shall include all materials or services which Seller has ordered and which cannot be canceled and all costs incurred in canceling material and service orders which can be canceled. Seller may retain without cost all materials and partially completed Goods on canceled purchase orders. The parties acknowledge the great difficulty of proving damages for the cancellation of products such as the Goods and the reasonableness of this liquidated damages provision.





16.1 By Either Party. A party may terminate or cancel the Agreement immediately by written notice to the other party if:

(a) The other party breaches any of its material obligations under the Agreement and that breach is not capable of remedy.

(b) A party becomes insolvent; or

(c) It becomes unlawful for the party to perform its obligations under the Agreement.

16.2 By Seller. Seller may terminate or cancel the Agreement immediately by written notice to Buyer if Buyer fails to:

(a) Pay money owing under the Agreement for more than seven days;

(b) Accept delivery at the delivery point within seven days from the date the Goods are first available for delivery as advised to Buyer by Seller, unless agreed otherwise in writing; or

(c) Carry out any other provision of the Agreement or breaches any of its material obligations under the Agreement and does not remedy that failure or breach within the remedy period set out in a written notice from Buyer giving full particulars of the breach and requiring it to be remedied. Any breach which is not so described is waived.

16.3 Cumulative Remedies. The rights of termination or cancellation under the Agreement are in addition to any right of action or remedy which the parties have in respect of any breach of the terms and conditions of the Agreement. The termination or cancellation of the Agreement does not affect the right of action or other remedy by the parties before termination in respect of any prior breach of the terms and conditions of the Agreement, including any breach which is the grounds of termination.

16.4 Survival of Rights. All rights and obligations of each party to the Agreement which are expressed to survive termination, cancellation, or expiry of the Agreement, or which by their nature or context must survive termination, cancellation, or expiry of the Agreement, will survive the termination, cancellation, or expiry of the Agreement.


17.1 Any provision found to be unenforceable by a final unappealed order entered by the court or tribunal shall be severed from the Agreement. Such severance shall be as narrow as possible and shall not affect the remainder of the Agreement in such action and other actions, unless the court or tribunal shall also find, on the request of Seller that without such provision as originally written, the Agreement is not likely to meet the reasonably commercial expectations of the parties and in such case, the court or tribunal shall enter an equitable judgment of rescission, termination or reformation of the Agreement as necessary to reach an equitable result.


18.1 No right or interest in the Agreement may be assigned by Buyer without the prior written consent of Seller. Any assignment attempted by Buyer shall be void and ineffective for all purposes unless made in conformity with this Section.