Sale terms

These sales terms ("Terms") shall govern all sales of Products and Services to Buyer by Fischer Block, Inc. ("FISCHER BLOCK, Inc."), its affiliates, subsidiaries, and/or divisions, (collectively, "FISCHER BLOCK"), unless other terms are specified in FISCHER BLOCK's quotation or sales order acknowledgment or unless otherwise agreed by FISCHER BLOCK, Inc. in writing. All sales are expressly limited to these Terms and are conditional on Buyer's assent to these Terms. Buyer's assent to these Terms shall be deemed given upon the occurrence of any of the following: (i) Buyer's failure to object to these Terms in writing within three (3) days from the date of its receipt of them, (ii) Buyer's issuance of a purchase order, or (iii) Buyer's acceptance of delivery of Products or Services. FISCHER BLOCK expressly objects to any additional or different terms proposed by Buyer, unless expressly agreed to in writing by FISCHER BLOCK. For the purposes of these Terms and unless stated otherwise, "Products" shall mean the products manufactured by FISCHER BLOCK, specified on the FISCHER BLOCK sales order acknowledgment, including without limitation any accessories, enclosed documentation and embedded software; and "Services" shall mean any FISCHER BLOCK training, consulting, technical support and any other services specified on the FISCHER BLOCK sales order acknowledgment, except for projects governed by a FISCHER BLOCK Engineering Services Proposal. FISCHER BLOCK may modify these terms at any time without prior notice provided that no such modification shall apply in respect of any order for products or services which has been accepted by Fischer Block prior to the modification(s). The latest version of the Terms will be posted on FISCHER BLOCK's website at, and Buyer should review these Terms prior to purchasing any Products or Services. No contract will be deemed to be formed until the FISCHER BLOCK sales order acknowledgment has been sent to Buyer, and all orders are subject to FISCHER BLOCK's ability to obtain, on appropriate terms and within a reasonable amount of time, any export or import license or permit required by applicable law or regulation. FISCHER BLOCK shall have the right to cancel any order at any time for failure of Buyer to agree to these Terms or for any material breach by Buyer of these Terms, including without limitation failure to pay any amounts due, violation of the then-current FISCHER BLOCK Software License Agreement or noncompliance with the then-current FISCHER BLOCK credit requirements.

Prices shall be the prices in effect on the date of the FISCHER BLOCK sales order acknowledgment, and are subject to change without notice. Each quotation or proposal is valid for sixty (60) days from its date, unless specified otherwise. For sales to Buyers within the continental United States, prices include ground freight prepaid to Buyer's place of business. For sales to Buyers outside the continental United States, prices are exclusive of any freight, packing or insurance charges and any customs, sales, use, value-added, property or similar taxes, tariffs or duties unless specified otherwise by FISCHER BLOCK. For Services performed on a time and expense basis, charges shall include time and expenses incurred in the previous calendar month. For Services performed on a fixed-price basis, charges shall include the price of major deliverables substantially completed in the previous calendar month. For Services, additional charges may result from modifications to the desired Services or from unforeseen conditions. Payment terms for all Products and Services are net thirty (30) days from date of invoice. All payments shall be made in United States Dollars, unless specified otherwise. Buyer must meet the then-current FISCHER BLOCK credit requirements to purchase on credit. If, in the judgment of FISCHER BLOCK, the financial condition of Buyer at any time prior to delivery does not justify the payment and/or credit terms offered by FISCHER BLOCK, FISCHER BLOCK may require payment in advance or postpone or cancel any outstanding order, whereupon FISCHER BLOCK shall be entitled to receive reasonable cancellation charges. Delays in delivery or non-conformities in any installments shall not relieve Buyer of its obligation to pay any remaining installments. FISCHER BLOCK may, at its sole discretion, impose a late charge equal to the lesser of 1.5% per month or the highest applicable rate allowed by law on all amounts not paid when due. Any payment made by Buyer shall be applied to amounts due before being applied to current orders, at FISCHER BLOCK's sole discretion. Notwithstanding the foregoing, Buyer's failure to pay amounts due shall be deemed a material breach of these Terms, and any acceptance by FISCHER BLOCK of late payments shall not be deemed a waiver of such breach. To the extent allowed by law, FISCHER BLOCK shall be entitled to recover all costs incurred in collecting amounts due from Buyer, including without limitation legal fees and other costs (including without limitation disbursements).

Delivery dates are approximate, based upon prompt receipt of all necessary information from Buyer and do not constitute a contractual obligation. If drawing approval is required, drawings must be returned on schedule to maintain estimated shipping dates. FISCHER BLOCK shall pack and ship Products according to its standard procedure, and all shipments shall be sent to Buyer using the FISCHER BLOCK standard freight forwarder or carrier. Buyer shall pay for any increased costs due to special packing, shipment (including freight forwarders or carriers required by Buyer) or insurance requests, as well as any detention charges. Unless otherwise stated in the FISCHER BLOCK sales order acknowledgment, the shipping terms are as stated herein. For Products shipped to addresses within the continental United States, title and risk of loss or damage shall pass to Buyer upon delivery to Buyer's place of business. Buyer must unpack and examine Products immediately and, if damage is discovered, (i) maintain Products at the place of examination, (ii) retain the shipping container and packing material, (iii) notify the carrier of any apparent damage in writing on carrier's delivery receipt and request carrier to make an inspection, (iv) notify FISCHER BLOCK within three (3) days of delivery and (v) send FISCHER BLOCK a copy of carrier's inspection report. For Products shipped to addresses outside the continental United States, title and risk of loss or damage shall pass to Buyer at the FISCHER BLOCK factory upon delivery to the freight forwarder or carrier, and Buyer shall have a reasonable time after receipt of Products to inspect and reject or accept Products. In any event, acceptance shall be deemed to have occurred no later than fifteen (15) days after shipment. Buyer may not return any Product without prior written consent of FISCHER BLOCK. When applicable, FISCHER BLOCK shall provide Buyer with one (1) copy of instructions for each Product. Buyer may not reproduce such instructions. Buyer may order additional copies from FISCHER BLOCK. All instructions and related documentation shall be in English. Although FISCHER BLOCK or its representatives may from time to time provide translations of such instructions and documentation as a courtesy, the English version shall govern in the event of, and FISCHER BLOCK shall not be liable for, any discrepancies. The English versions are available at Any information, suggestions or ideas transmitted by Buyer to FISCHER BLOCK in connection with performance hereunder shall not be regarded as proprietary or confidential, unless identified in writing by Buyer and acknowledged in writing by FISCHER BLOCK.

Buyer shall not challenge the validity of any FISCHER BLOCK intellectual property, including without limitation any trademarks, service marks, trade dress, patents, copyrights, trade secrets or licenses. Buyer acknowledges that FISCHER BLOCK intellectual property is the sole property of FISCHER BLOCK. By sale of Products or Services to Buyer, FISCHER BLOCK does not transfer any FISCHER BLOCK intellectual property rights (including without limitation rights to designs or other work product). Buyer shall not remove or alter any trademarks, service marks or trade dress that identify FISCHER BLOCK, nor use any trademarks, service marks, trade dress or any other intellectual property that, in the sole discretion of FISCHER BLOCK, is confusingly similar to those of FISCHER BLOCK. Any software (including firmware) included with Products is owned by FISCHER BLOCK (or its licensors) and is licensed, not sold, to Buyer. Buyer may use such software only with Products and only as intended by FISCHER BLOCK. All software shall be provided subject to the then-current FISCHER BLOCK Software License Agreement.

FISCHER BLOCK warrants to Buyer that Products are free from defects in material and workmanship for one (1) year after shipment for all FISCHER BLOCK Products. This warranty is conditioned upon proper storage and shall be void in its entirety if Buyer modifies Products without prior written consent to and subsequent approval of any such modifications by FISCHER BLOCK or uses Products for any applications that require product listing or qualification not specifically included in the FISCHER BLOCK written quotation or proposal. If any Product fails to conform to this warranty, Buyer properly notifies FISCHER BLOCK of such failure and Buyer returns the Product to FISCHER BLOCK factory for diagnosis (and pays all expenses for such return), FISCHER BLOCK shall correct any such failure by, at its sole discretion, either repairing any defective or damaged Product part(s) or making available any necessary replacement part(s) or Product(s); freight will be prepaid by FISCHER BLOCK (Carriage Paid to (CPT) customer's place of business). If FISCHER BLOCK is unable or unwilling to repair or replace, FISCHER BLOCK and Buyer shall negotiate an equitable resolution such as a prorated refund or credit to the Buyer's account. Any Product repair or upgrade shall be covered by this warranty for the longer of ninety (90) days from date of repair or the remainder of the original warranty period. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIS WARRANTY SHALL BE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED (INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF PERFORMANCE OR DEALING OR USAGE OF TRADE), EXCEPT WARRANTY OF TITLE AND AGAINST PATENT INFRINGEMENT. FISCHER BLOCK shall, whenever possible, pass the original manufacturer warranty to Buyer for non-FISCHER BLOCK products. FISCHER BLOCK does not warrant non-FISCHER BLOCK products, and products or prototypes provided by FISCHER BLOCK for testing, marketing, or loan purposes. FISCHER BLOCK shall perform Services in a manner consistent with the degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances. FISCHER BLOCK shall reperform (or, at FISCHER BLOCK's option, pay a third party to reperform) any defective Services (including Services performed in conjunction with FISCHER BLOCK systems) at no cost upon receipt of notice detailing the defect(s) within one (1) year of performance of the original Services.

In no event, whether as a result of breach of contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, shall FISCHER BLOCK be liable to Buyer or Buyer's insurers for any loss or damage for an amount exceeding the price of the specific Product or Service that gave rise to the claim, and any liability shall terminate upon the expiration of the warranty period. No claim, regardless of form, arising from these Terms may be brought by Buyer more than one (1) year from the date such claim accrues. In no event, whether as a result of breach of contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, shall FISCHER BLOCK be liable for any special, consequential, incidental, liquidated or punitive damages, including without limitation any loss of profit or revenues, loss of use of Products or associated equipment, damage to associated equipment, cost of capital, cost of substitute products, facilities, services or replacement power, downtime costs or claims of Buyer's customers for such damages. If FISCHER BLOCK or its subcontractors or suppliers provide Buyer with advice or other assistance, including input of customer-provided or customer-requested settings and advice related thereto, concerning any Product or any system or equipment in which any such Product may be installed, the provision of such advice or assistance shall not subject FISCHER BLOCK to any liability, whether as a result of breach of contract, indemnity, warranty, tort (including negligence), strict liability or otherwise. FISCHER BLOCK shall not be liable for any claims or losses resulting from any unauthorized access to Products. Buyer confirms that it has read the manuals and instructions for use of Products (or that it will do so) and shall not install or operate Products unless Buyer is competent to do so. Buyer shall indemnify, defend and hold harmless FISCHER BLOCK and all related parties from and against any claims, demands, causes of action, losses, costs and expenses, including without limitation legal fees and other costs, arising directly or indirectly from, as a result of or in connection with the acts or omissions of Buyer, its officers, employees, agents or representatives, including without limitation (i) Buyer's modification or integration of any Product, (ii) Buyer's specifications, (iii) Buyer's use of products and services, which may or may not be based on examples or guides from FISCHER BLOCK, (iv) any changes made by Buyer or others related to design documents produced by FISCHER BLOCK, (v) any unauthorized use or reuse of the designs, drawings, plans and specifications furnished by FISCHER BLOCK, (vi) Buyer's failure to fully utilize the password protection available in any Product (including without limitation Buyer's failure to use passwords or to change default passwords to unique Buyer passwords) or (vii) any breach of these Terms by Buyer. Buyer shall maintain commercially reasonable insurance (including waiver of subrogation) against liability and property damage, including without limitation all standard commercial, environmental and, for any Products used in connection with any nuclear facility or activity, nuclear incident insurance.

FISCHER BLOCK shall defend any action brought against Buyer based on a claim that any Product as provided by FISCHER BLOCK infringes any United States patent, and FISCHER BLOCK shall pay any award or settlement recovered against Buyer in any such action and shall reimburse Buyer for reasonable costs incurred by Buyer in the defense of any such action, provided that Buyer gives FISCHER BLOCK prompt notice of such action, reasonable assistance in the defense thereof and full opportunity to control all aspects thereof, including settlement, and does not take any position adverse to FISCHER BLOCK in connection with such action. In the event that such Product is held to constitute infringement and use of the Product is enjoined (or FISCHER BLOCK foresees a substantial risk of such event), FISCHER BLOCK shall, at its sole discretion, exchange the Product with a non-infringing Product, acquire the right for Buyer to continue using it, modify it so that it becomes non-infringing or repurchase it from Buyer for a fair portion of the original price. FISCHER BLOCK shall not be liable for damages that arise after FISCHER BLOCK offers one of the foregoing remedies in good faith. FISCHER BLOCK shall not be liable for any patent infringement claim arising from any custom Product, modification of any Product, integration of any Product not as intended by FISCHER BLOCK, or integration of any Product with any non-FISCHER BLOCK product, and Buyer shall fully indemnify, defend and hold harmless FISCHER BLOCK and all related parties from and against any such patent infringement claim.

Prior to resale of any Product, Buyer shall obtain written authorization from FISCHER BLOCK for any such resale. To obtain such authorization, Buyer shall provide FISCHER BLOCK, initially and on an ongoing basis, with complete and accurate end-user data for each Product. Buyer shall provide the end-user of each Product with all product notices, warnings, instructions, recommendations, bulletins and similar materials provided directly or indirectly by FISCHER BLOCK. In the event Buyer transfers to a third party any Product or any right or interest therein, Buyer shall indemnify, defend and hold harmless FISCHER BLOCK and all related parties from and against any claims against FISCHER BLOCK in excess of any FISCHER BLOCK obligations under these Terms by such transferee or any other party. Any assignment or transfer of any Product without prior written authorization from FISCHER BLOCK shall void the FISCHER BLOCK warranty. Buyer may not assign or transfer any Product where such assignment or transfer would violate any applicable export laws, regulations or orders. Buyer warrants that the shipping information is true and accurate to the best of their knowledge. The attempted assignment or transfer by Buyer of these Terms or any rights or duties hereunder without prior written consent of FISCHER BLOCK shall not relieve Buyer of any obligations to FISCHER BLOCK.

If Buyer requires approval of drawings, such approval must be received by FISCHER BLOCK no later than ten (10) working days after submittal of drawings by FISCHER BLOCK to Buyer. Buyer's failure to comply with this requirement may result in additional costs and delays, which shall be Buyer's sole responsibility. Where Buyer's specifications lack sufficient detail, FISCHER BLOCK reserves the right to design Products in accordance with good commercial practice, as determined at the sole discretion of FISCHER BLOCK. If at any time Buyer makes changes to its design specifications, the FISCHER BLOCK sales order acknowledgment shall be subject to renegotiation of price terms and delivery to reasonably cover any resulting costs or delays. Any order may be terminated by Buyer only upon written notice and payment of reasonable termination charges, including without limitation a reasonable restocking fee plus all costs incurred up to the date of termination. Any order delayed at Buyer's request shall be subject to the prices and Terms in effect at the time of release of such delay. Any such order delayed beyond a reasonable period (as determined in FISCHER BLOCK's sole discretion) shall be treated as a Buyer termination, and Buyer shall be responsible for reasonable delay and termination costs.

The laws of the State of Delaware, USA, excluding conflict of laws principles, shall govern these Terms. The parties reject any applicability of the United Nations Convention on Contracts for the International Sale of Goods. Any controversy or claim arising out of or relating to these Terms, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the arbitration award may be entered in any court of competent jurisdiction. Arbitration shall be held in Dover, Delaware, or another location agreed upon by the parties, and shall be conducted in English. The prevailing party to any dispute shall be entitled to recover legal fees and other costs (including without limitation arbitration fees, disbursements, and collection costs).

These Terms, including the FISCHER BLOCK Software License Agreement and FISCHER BLOCK sales order acknowledgement, constitute the entire agreement between FISCHER BLOCK and Buyer, and supersede any prior or contemporaneous verbal or written agreements, negotiations, commitments, representations or correspondence between the parties, including without limitation any terms on any purchase order form. FISCHER BLOCK rejects any representation, express or implied warranty, course of performance or dealing, trade usage or any different or additional terms not set forth herein. FISCHER BLOCK reserves the right to modify or revoke any quote or order to comply with applicable laws and market conditions. Any notice pursuant to these Terms shall be deemed given when sent by registered mail, certified mail (return receipt requested), overnight delivery, or fax (receipt confirmed) to an authorized officer at the address or fax number listed on the FISCHER BLOCK sales order acknowledgment or, if no such address or fax number is provided, at the registered headquarters of the other party. All rights and duties hereunder shall be for the sole and exclusive benefit of Buyer and FISCHER BLOCK, and not for the benefit of any other party. FISCHER BLOCK may perform its obligations hereunder personally, or through one or more of its affiliates or subsidiaries, although FISCHER BLOCK shall nonetheless be solely responsible for the performance. No failure or delay by either party in exercising any right or remedy, or insisting upon strict compliance by the other party with any obligation in these Terms, shall constitute a waiver of any right thereafter to demand exact compliance with these Terms. The invalidity, in whole or part, of any provision in these Terms shall not affect the remainder of such provision or any other provision and, where possible, shall be replaced by a valid provision that effects as close as possible the intent of the invalid provision. Neither party shall be liable for failure to perform or delay in performance of any obligation under these Terms (except payment of amounts already due and owing) where such failure or delay results from any event beyond its reasonable control.

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