The Siemon Company Terms and Conditions of Sale

Effective Date: June 6, 2022

In the absence of an existing current agreement between The Siemon Company (“Siemon”) and Buyer, the following Terms and Conditions of Sale (the “Terms”) are the only terms which govern the sale of the goods (“Goods”) by Siemon to any purchaser, or in the case of sample products or material, recipient thereof (“Buyer”).

1. GENERALLY: Any order or statement of intent to purchase any Goods, or any direction to proceed with engineering, procurement, manufacture or shipment shall constitute assent to these Terms. Any additional or different terms or conditions set forth in Buyer’s purchase order or similar communication are objected to and will not be binding upon Siemon, unless specifically agreed to in writing by an authorized representative of Siemon management. The quotation, order acknowledgement, or invoice and these Terms comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Notwithstanding that the Buyer may utilize its own terms and conditions, acknowledgement or confirmation of purchase in ordering Goods hereunder, any such terms, or conditions which attempt to modify, or conflict with, contradicts or adds to any specification, term or condition of Siemon shall be deemed to be waived by Buyer unless expressly accepted in writing by Siemon. These Terms are subject to change without prior notice, except that the Terms posted on Siemon’s website at the time Buyer places an order will govern the order in question, unless otherwise agreed in writing by Siemon and Buyer.
2. BUYER PLACEMENT OF PURCHASE ORDERS WITH SIEMON: Buyer shall submit purchase order to Siemon via electronic data interface (EDI), facsimile, e-mail or mail. Such dated purchase order must provide a purchase order number, product ordered, quantities, and ship to address. Siemon shall within twenty-four (24) hours of receipt of such purchase order issue an order acknowledgement to Buyer. Should Buyer’s purchase order contain an error, such order will be put on hold pending written resolution of the error after notification to Buyer from Siemon. Upon receipt of Buyer’s written change order that satisfactorily corrects any noted order defects, Siemon will release the hold and process the order. Notwithstanding the above, Siemon is not obligated to fulfill any order it deems contrary to its best interests. Buyer is advised that Buyer’s right to place orders with Siemon is contingent upon the timely maintenance of its financial accounts with Siemon.
3. PRICES: All prices stipulated or promulgated by Siemon are subject to change without notice. Prices do not include any present or future sales, use, excise, value added or similar taxes and, where applicable, such taxes shall be billed as a separate item and paid by Buyer. All prices are in US dollars.
4. PAYMENT TERMS:
   1. For international Buyers, payment terms shall be by irrevocable Letter of Credit or other acceptable method as authorized by Siemon. All payments shall be made in US dollars.
   2. For U.S. domestic Buyers, Buyer shall pay all invoiced amounts due 1%10, net 30 from the invoice date. If in the judgment of Siemon, the financial condition of the Buyer at the time of manufacture or shipment does not justify the terms of payment specified on the order, Siemon reserves the right to require from Buyer full or partial payment or other adequate assurance of performance before manufacture or shipment. Siemon reserves the right to suspend its performance until such a payment or adequate assurance of performance has been received.
   3. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month (18% per annum) or the highest rate permissible under applicable law. Nothing herein shall be deemed to extend or otherwise modify Buyer’s obligation to make payment when due. Siemon may assess a charge for canceled orders in its sole discretion. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Siemon, whether relating to Siemon’s breach, bankruptcy or otherwise.
   4. The minimum purchase order amount is $250.00.
5. DELIVERY: Siemon will use commercially reasonable efforts to meet the delivery dates, specifications, and quantities as set forth in Buyer’s purchase order, however the parties acknowledge and agree that delivery dates shall be estimates only. Siemon will not be liable for damages or delays in delivery. Unless otherwise agreed to in writing by the parties domestic and international shipments from Siemon to Buyer shall be INCOTERMS EXW, Siemon factory. Siemon shall select the carrier and prepay and add shipping costs to the invoice. Should Buyer desire to specify a carrier, it must do so in writing and such shipping costs will be added to the invoice. If a carrier delivers a short shipment or damaged material from Siemon to Buyer, all claims including freight-allowed shipments must be made against the carrier. It is the Buyer’s responsibility to place all claims against the carrier for
   loss or damage in transit. Regardless of whose liability, Siemon shall be notified in writing within thirty (30) days of any loss or damage, or any discrepancy in shipment. Each shipment or delivery shall be deemed to have been sold under a separate and independent contract.
6. TITLE: Unless otherwise agreed to by the parties, title passes to Buyer upon delivery of Goods to carrier at the point of shipment, irrespective of who selects carrier. Buyer hereby grants to Siemon a purchase money security interest in all Goods purchased hereunder, and any proceeds received by Buyer with respect thereto, as security for the payment of all amounts due from Buyer to Siemon. Upon request by Siemon at any time, Buyer agrees to assist Siemon in executing and filing such financing statements or other documents as may be required to evidence and perfect such security interest in any jurisdiction.
7. LIMITED WARRANTIES: The Goods are subject to the terms, conditions and limitations of Siemon’s Warranty Statement in effect as of the date of shipment. Siemon’s Warranty Statement is located on Siemon’s website at Warranty Statement. Upon request of Buyer, Siemon will provide Buyer with a hard copy of Siemen’s Warranty Statement. The Warranty Statement as of the date of the order acknowledgement for each of the Goods purchased by Buyer are expressly incorporated herein by this reference. Buyer confirms that Buyer has reviewed the Warranty Statement for each of the Goods purchased by Buyer and agrees that the limited warranties set forth in each applicable Warranty Statement are incorporated into these Terms. THE REMEDIES PROVIDED HEREIN SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDIES, AND NO STATEMENT OR RECOMMENDATION NOT CONTAINED HEREIN SHALL HAVE ANY FORCE OR EFFECT UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED OFFICER OF SIEMON. SIEMON MAKES NO WARRANTY, EXPRESSED OR IMPLIED, AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY PRODUCT SOLD UNDER THIS TRANSACTION. ANY TECHNICAL OR OTHER ADVICE OR ASSISTANCE FURNISHED BY SIEMON, WHICH CONCERNS ANY GOODS SUPPLIED HEREUNDER, WILL NOT SUBJECT SIEMON TO ANY LIABILITY, WHETHER BASED
   ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHER GROUNDS.
8. DISCLAIMER OF INCIDENTAL AND CONSEQUENTIAL DAMAGES: SIEMON SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LABOR CHARGES, CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF ANY PRODUCT OR ASSOCIATED PRODUCT, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES OR SERVICES, DOWNTIME COSTS OR COSTS OF CLAIMS ARISING FROM BUYER’S CUSTOMERS, ARISING OUT OF OR IN CONNECTION WITH THE GOODS, INCLUDING WITHOUT LIMITATION BREACH OF ANY OBLIGATION IMPOSED ON SIEMON HEREUNDER OR IN CONNECTION HEREWITH, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SIEMON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9. MAXIMUM LIABILITY: SIEMON’S LIABILITY ON ANY CLAIM FOR LOSS OR DAMAGE ARISING OUT OF A CONTRACT OR FROM THE PERFORMANCE OR BREACH THEREOF OR CONNECTED WITH THE SUPPLYING OF GOODS, OR THEIR SALE, RESALE, OPERATION OR USE, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHER GROUNDS, SHALL NOT EXCEED THE PRICE ALLOWABLE TO SUCH GOODS OR PART THEREOF INVOLVED IN ANY CLAIM.
10. HAZARDOUS BUSINESS. Unless otherwise agreed to in writing by an authorized representative of Siemon management, Goods sold hereunder are not intended for use in connection with any nuclear facility or any other hazardous activity such as commercial or military aircraft, missile installations, space exploration, or critical applications where failure of a single component could cause substantial harm to persons or property. If so used, Siemon disclaims all liability for any damage, contamination or other injury, and Buyer shall indemnify and hold Siemon harmless from such liability whether as a result of breach of contract, warranty, tort (including negligence) or other grounds. Neither Siemon nor its suppliers shall have any liability to the Buyer or its insurers on any grounds whatsoever for on-site damage to any property located at a nuclear facility.
11. COMPLIANCE WITH LAW: Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under these Terms or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
12. TERMINATION: In addition to any remedies that may be provided under these Terms, Siemon may terminate any order with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. Buyer may terminate an order only by mutual agreement based on payment to Siemon of reasonable and proper termination charges.
13. RETURNS: Buyer must request a Return Material Authorization (RMA#) from Siemon before returning Goods for product credit. Buyer product returned to Siemon without an RMA# assigned by Siemon will be returned to the Buyer at Buyer’s expense. Upon receipt of a Siemon RMA#, Buyer may return the authorized material for Siemon product review and audit. Upon completion of its audit, Siemon will issue a product credit to the Buyer. Buyer shall not assign a credit value nor take a credit inconsistent with or prior to the receipt of the Siemon issued Credit. Any such unauthorized credit will be reversed and deducted by Siemon. Notwithstanding all other provisions herein, Siemon reserves the right to deny authorization for the return of material should the Buyer be in arrears on the timely payment of Siemon invoices. In addition, the following restrictions apply to all returns:
    1. Returns for product credit of standard catalog items to Siemon by Buyer will be subject to a 20% restocking charge and are subject to inspection for damage or obsolescence. Restocking charges for special products may vary at Siemon’s
       discretion.
    2. Items must be in new and unused condition.
    3. Returned items must not have been in Buyer’s inventory for more than one year.
    4. Buyer is responsible for all shipping cost related to any returns.
    5. Credit will be determined by Siemon for product at current price or price paid, whichever is lower.
    6. Total returns may not exceed 5% of the annualized purchase amount.
    7. In the event of order termination, Siemon is not obligated to accept returned product except as mentioned above.
14. ACKNOWLEDGMENT/GOVERNING LAW: Buyer acknowledges reading these Terms, understands them and agrees to be bound by them. Disputes arising in connection with these Terms or the sale of Goods hereunder, shall be governed, interpreted and construed by the laws of the State of Connecticut without regard to principles of conflicts of laws. The forum for any legal action shall be the State of Connecticut, and the parties hereto do hereby irrevocably submit to such jurisdiction and venue, and waive any objection to the contrary hereafter. The application of the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from this transaction.
15. WAIVER: No waiver by Siemon of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by Siemon. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
16. ARBITRATION: Any controversy or claim arising out of or relating to this transaction, or the breach hereof, shall be settled by arbitration in Hartford, Connecticut, USA in accordance with the rules then obtaining, of the American Arbitration Association. Except as set forth, below, one arbitrator chosen by Siemon and Buyer shall settle any such controversy. If Siemon and Buyer do not agree on one arbitrator, such controversy shall be settled by three arbitrators, one of which will be selected by Siemon, one by Buyer and one by the two arbitrators so selected. This transaction shall be enforceable in, and judgment upon any award rendered by all or a majority of arbitrators may be entered in, any court of any country having jurisdiction.
17. CONFIDENTIAL INFORMATION: All non-public, confidential or proprietary information of Siemon, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Siemon to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with the sale of Goods hereunder is confidential, solely for the use of performing under these Terms and may not be disclosed or copied unless authorized in advance by Siemon in writing. Upon Siemon’s request, Buyer shall promptly return all documents and other materials received from Siemon. Siemon shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
18. AMENDMENT AND MODIFICATION: These Terms may be amended, modified or waived only by a written instrument that refers expressly to this paragraph and is signed by an authorized representative of Siemon. E-mails and electronic on-line, internet or other terms of Buyer shall not be deemed a means of modifying or amending these Terms.
19. ASSIGNMENT: Buyer shall not assign any of its rights or delegate any of its obligations hereunder without the prior written consent of Siemon. Any purported assignment or delegation in violation of this section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
20. FORCE MAJEURE: Except for the payment of monies owed, neither party will have any liability for any breach or failure to perform that is caused by or results from acts or circumstances beyond that parties’ reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage. If a party becomes aware of any such event, condition or circumstance, then such party will promptly advise the other party and both parties will cooperate to ameliorate the circumstance or condition as quickly as possible.
21. NOTICES: All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the sales confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided herein, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this section.
22. RELATIONSHIP OF THE PARTIES: The relationship between the parties is that of independent contractors. Nothing contained herein shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
23. NO THIRD-PARTY BENEFICIARIES: These terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
24. SEVERABILITY: If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.