SIKA USA, INC.
GENERAL TERMS AND CONDITIONS
1. Controlling Provisions. The terms and conditions of these provisions shall apply to all orders submitted to SIKA USA, Inc. ("SIKA") and supersede any different or additional terms in any purchase or lease orders submitted by an Affiliate Member, as defined in such Affiliated Member Agreement or by any other customer (collectively for the purposes of the agreement the "Customers" and each, individually, a "Customer"); any such different or additional terms are hereby rejected. In the absence of written acceptance of these terms and conditions by the Customer, any acceptance of any delivery or service covered by an order will constitute an acceptance of these terms and conditions. The full understanding of the parties is embraced herein and no waiver, alteration or modification of these provisions or any terms of the order will be valid unless made in writing and signed by an officer or other authorized representative of SIKA. In the event of any discrepancy between any purchase order accepted by SIKA and these provisions, these provisions shall govern.
In case SIKA does not enforce, at any time, any one of these General Terms and Conditions, such event shall not be interpreted as a change of said General Terms and Conditions, nor as SIKA' waiver to exercise any of said General Terms and Conditions.
2. General Conditions. SIKA reserves the right to discontinue products (the "Product") and to revoke or change prices or terms of service, except when otherwise indicated in these terms and conditions. If, at any time, it becomes necessary to discontinue service to Customer, to revoke or modify any provisions in this schedule, or to allocate distribution of any Products, SIKA will take whatever action its sole and absolute judgment which is fair and appropriate. Customer may not customize, modify or have customized or modified any leased or purchased Products and resell or sublease such Products only in its original condition. In case of a transaction by an Affiliated Member the provisions of the Affiliated Member Agreement shall also apply.
3. Acceptance
3.1. All orders for Products are subject to acceptance in writing by SIKA and shall not be binding until the earlier of such acceptance or shipment of the products and, in the case of acceptance by shipment, only as to the portion of the order actually shipped. SIKA shall use reasonable commercial efforts to fill orders promptly, but shall not be liable for any damage to Customer or any third party for failure to fill any orders, or for any delay in delivery or error in filling any orders. Notwithstanding any prior acceptance by SIKA of a purchase order for a Product, SIKA shall not be obligated to ship any Product if Customer is in breach of any of these provisions or other contractual obligations towards SIKA at the time of scheduled shipment.
The ultimate shipment of orders to Customer shall be subject to the right and ability of SIKA to make such sales, and obtain required licenses and permits, under all decrees, statutes, rules and regulations of the governments of Germany, France and the United States of America and agencies or instrumentalities thereof presently in effect or which may be in effect hereafter.
3.2. Customer hereby agrees: (i) to assist SIKA in obtaining any such required licenses or permits by supplying such documentation or information as may be requested by SIKA; (ii) to comply with such decrees, statutes, rules and regulations of the governments of Germany, France and the United States of America and agencies or instrumentalities thereof; (iii) to maintain the necessary records to comply with such decrees, statutes, rules and regulations; (iv) not to export any Products except in compliance with such decrees, statutes, rules and regulations; (v) to obtain all governmental approvals and licenses necessary to import the Products into any country; (vi) not to sell, transfer or otherwise dispose of Products in violation of the export laws of the United States of America, and (vii) to indemnify and hold harmless SIKA from any and all fines, damages, losses, costs and expenses (including reasonable attorneys' fees) incurred by SIKA as a result of any breach of this subsection 3.2 by Customer or any of Customer's customers.
4. Payment Terms, Interest.
4.1. Invoices are due and payable within 30 days from the date of the invoice except as otherwise provided in the order confirmation or any other agreement.
4.2. Payments due to SIKA under the agreement with the Customer shall, if not paid when due under the terms of such agreement, bear simple interest at the lower of 2 % per month or the highest rate permitted by law, calculated on the basis of a 360-day year for the number of days actually elapsed, beginning on the due date and ending on the day prior to the day on which payment is made in full. Interest accruing under this subsection 4.2 shall be due to SIKA on demand. The accrual or receipt by SIKA of interest under this subsection shall not constitute a waiver by SIKA of any right it may otherwise have to declare a default under such agreement or to terminate such agreement.
4.3. If the Customer fails to pay any amount due, SIKA may, without notice to the Customer, suspend all service provided in such agreement and Customer shall deliver to SIKA all Products in its possession.
5. Shipping Charges; Taxes.
5.1 Shipping and handling shall be Ex Works SIKA Germany, SIKA USA or such other location where the Product is produced or stored on behalf of SIKA. In case SIKA shall organize the shipment on behalf of the COMPANY all shipping and handling charges shall be charged separately and shall be itemized on SIKA' invoice(s). Any discount shall be agreed upon in writing.
5.2 SIKA will add to all prices and other charges any taxes, however designated or levied or based on the prices or other charges made for the Products or any services rendered or parts supplied pursuant to such agreement. This section will not apply to organizations that are tax-exempt and provide SIKA with supporting documentation in form and substance satisfactory to SIKA.
6. No Right of Setoff. Customer shall have no right of setoff against any payments due pursuant to these provisions agreement, whether on account of any claims or alleged claims against SIKA under this provisions or otherwise.
7. Delivery
7.1 All shipping dates are tentative. If Customer fails to accept the order, Customer shall nonetheless make payment to SIKA. Where Customer wrongfully rejects or revokes acceptance of the Products or fails to make payments as set forth herein or repudiates with respect to all or part of the contract for the Products shipped, SIKA may withhold delivery, or stop delivery of the Products or cancel the contract and/or sue for damages at SIKA' exclusive option. If Customer causes a delay in the delivery of the Products, or any part thereof, SIKA, at its exclusive option, may extend the period of delivery by a period reasonable in consideration of the circumstances, and, if the delay causes SIKA substantial inconvenience, SIKA has the right to cancel with respect to the Products whose delivery is delayed. Any expenses or damages resulting from such delays shall be the exclusive responsibility of Customer. Unless otherwise agreed in writing, SIKA reserves the right to make partial shipments and to submit invoices for partial shipments.
7.2 SIKA' responsibility ceases upon delivery to common carrier at the stated shipping point, and risk of loss, damage, injury or destruction to any of the Products shall pass to Customer upon such delivery to the carrier. In no event shall any loss, damage, injury or destruction operate in any manner to release Customer from the obligation to make payments as set forth herein.
7.3 Upon demand of the Customer and at his costs SIKA will insure the product for damages during shipment. Customer shall notify SIKA and the shipping agent of any damages during shipment within three (3) business days of delivery or such shorter time period as may be required by carrier.
7.4 SIKA agrees to make a good faith effort to deliver the Product by the date set forth in the order confirmation, provided, however, that SIKA shall have no responsibility or liability whatsoever for loss or damage by causes beyond its control including but not limited to, delays by fire, flood, war embargoes, labor disputes, acts of sabotage, riots, accidents, delay of carriers, voluntary or mandatory compliance with any governmental act, regulations or request, shortage of labor, materials or manufacturing facilities, or any other causes beyond SIKA' control.
Any delivery of software shall also be subject to license agreements of SIKA. There are no implied licenses under these provisions, and any rights not expressly granted to Customer hereunder are reserved by SIKA.
8. Inspection and Notification
8.1 Customer shall inspect the Products within three (3) business days of delivery to verify compliance with the specifications as set forth in Customer's delivery orders accepted by SIKA in writing.
8.2 In the event of any non-conformity or defect, Customer shall notify SIKA within three (3) business days thereafter in writing. Customer shall identify and document issues in a detailed manner.
8.3 In the event that Customer does not inspect or notify SIKA of any defect in the manner described above, the Product shall be considered accepted.
9. Warranty
SIKA warrants for 12 months from delivery of the Products to the Customer that the Products will be free from material defects in materials and workmanship under normal use, and will conform to SIKA's published specifications of the Products. The foregoing warranty is subject to the proper installation, operation and maintenance of the Products in accordance with installation instructions and the User Manual supplied to Customer. All warranty claims must be made by Customer to SIKA in writing within three (3) days of occurrence of a defect and prior to the end of the Warranty Period. SIKA's sole obligation under the foregoing warranty is, at SIKA's option, to repair, replace or correct any such covered defect or non-conformity. Upon repair or replacement of the defective or non-conforming components, SIKA shall have no further obligation to Customer with respect to such defect or non-conformity.
10. LIMITATION OF WARRANTY: ALL WARRANTIES SET FORTH HEREIN ARE MADE IN LIEU OF ALL OTHER WARRANTIES (WHETHER EXPRESS OR IMPLIED), RIGHTS OR CONDITIONS, AND CUSTOMER ACKNOWLEDGES THAT EXCEPT FOR SUCH LIMITED WARRANTY, THE PRODUCTS ARE PROVIDED "AS IS." SIKA SPECIFICALLY DISCLAIM, WITHOUT LIMITATION, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND TO CUSTOMER, CUSTOMER'S PERSONNEL AND CUSTOMERS AND USERS, AND ANY OTHER THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE. SIKA AND ITS THIRD-PARTY PROVIDERS MAKE NO REPRESENTATION OR WARRANTY THAT THE PRODUCTS WILL MEET CUSTOMER'S REQUIREMENTS OR BE UNINTERRUPTED, OR FREE FROM ERROR OR DEFECT.
11. LIMITATION OF LIABILITY:
11.1 IN NO EVENT SHALL SIKA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL OR USE, INCURRED BY CUSTOMER OR ANY THIRD PARTY, OR DAMAGE TO ASSOCIATED EQUIPMENT, COST OF SUBSTITUTE PRODUCTS, FACILITIES, SERVICE OR REPLACEMENTS, DOWNTIME COSTS, OR CLAIMS OF CUSTOMER'S CUSTOMERS, VISITORS, PERSONNEL OR OTHERS, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, OR IMPOSED BY STATUTE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SIKA'S LIABILITY FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCTS OR, IF APPLICABLE, THE AGGREGATE FEES PAID TO THE SIKA UNDER ANY SERVICE CONTRACT. IT IS AGREED AND ACKNOWLEDGED THAT THE PROVISIONS OF THESE TERMS ALLOCATE THE RISKS BETWEEN SIKA AND CUSTOMER, THAT SIKA'S PRICING REFLECTS THIS ALLOCATION OF RISK, AND BUT FOR THIS ALLOCATION AND LIMITATION OF LIABILITY, SIKA WOULD NOT HAVE ENTERED INTO THESE TERMS.
11.2 SOME JURISDICTIONS LIMIT THE SCOPE OF OR PRECLUDE LIMITATIONS OR EXCLUSION OF REMEDIES OR DAMAGES, OR OF LIABILITY, SUCH AS LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AS OR TO THE EXTENT SET FORTH ABOVE, OR DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED. IN SUCH JURISDICTIONS, THE LIMITATION OR EXCLUSION OF WARRANTIES, REMEDIES, DAMAGES OR LIABILITY SET FORTH ABOVE MAY NOT APPLY TO CUSTOMER IN ALL RESPECTS, BUT THEY ARE INTENDED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CUSTOMER MAY ALSO HAVE OTHER RIGHTS THAT VARY BY STATE, COUNTRY OR OTHER JURISDICTION.
12. Security Interest in Customer's Contracts. As security for the payment of any and all obligations and liabilities of Customer to SIKA hereunder including, without limitation, the payment of the purchase price or lease, license or maintenance fees, Customer hereby gives, grants and assigns to SIKA a continuing security interest in and against all of Customer's right, title and interest (whether now existing or hereafter arising in, to and under all of the contracts (the "Customer Contracts") with its customers, distributors and subdistributors, together with all right to receive payment and/or performance thereunder and all other rights and interests now existing or hereafter arising in connection with the Customer Contracts, and all proceeds of any thereof. Notwithstanding the grant of security interest hereunder, Distributor shall at all times remain liable under the Customer Contracts to perform all of its duties and obligations thereunder to the same extent as if this security interest had not been granted. SIKA shall not have any obligation or liability under the Customer Contracts by reason of, or arising out of the agreement between the parties or be obligated to perform any of the obligations or duties of Customer thereunder or to make any payment or to make any inquiry of the sufficiency of any payment received by SIKA or to present or file any claim or to take any other action to collect or enforce any payment assigned hereunder. Until such time as SIKA shall notify Customer of the revocation of such power and authority, Distributor will, at its own expense, endeavor to collect, as and when due, all amounts due under the Customer Contracts, and otherwise enforce its rights and remedies under the Customer Contracts, including the taking of such action with respect to such collection or enforcement as SIKA may reasonably request or, in the absence of such request, as Customer may deem advisable. However, upon a failure by Customer to fulfill all of its obligations under the agreement between the parties including, without limitation, a failure pay purchase price, license or maintenance fees to SIKA, SIKA may, in addition to its other rights contained in the agreement between the parties or as a secured party under the Uniform Commercial Code or under any other applicable law, (i) notify the customers, distributors or subdistributors, as applicable, to make direct payment to SIKA of any amounts due, or to become due to Customer under the Customer Contracts, (ii) enforce collection of any of such amounts and otherwise enforce Customer's rights under the Customer Contracts by suit or otherwise, and/or (iii) sell the Customer Contracts at public or private sale, in whole or in part, and have the right to bid and purchase at said sale, applying proceeds therefrom to the Customer's obligations hereunder.
13. Proprietary Rights and Trademarks.
Customer hereby recognizes SIKA' absolute right, title and interest in all patents, trademarks, trade names, logos, copyrights and all other proprietary interest incorporated as any part of either the Products or other material received from SIKA. Customer shall have no right to register any of SIKA' trade names or trademarks in its own name or right, whether as owner, user or otherwise. Customer shall release any rights it may have acquired in the trade names and trademarks of SIKA and shall execute any and all instruments SIKA may deem necessary or advisable from time to time to accomplish such release. Upon termination or expiration of this Agreement, Customer shall immediately cease using all trade names and trademarks of SIKA and shall not thereafter use any marks or names similar thereto either in connection with the Products or otherwise. Any and all goodwill associated with such Intellectual Property Rights shall at all times remain the sole property of SIKA, and upon the expiration or termination of this Agreement for any reason, Customer shall not be entitled to any compensation for such goodwill or otherwise. Customer shall promptly advise SIKA of any known or threatened infringement of any SIKA patents, trademarks, copyrights or Confidential Information with respect to the Products. At SIKA' request and expense, Customer shall assist SIKA in any enforcement action SIKA in its discretion determines to take in respect of any such infringement. During the term of the Agreement, SIKA shall have the right to use the trade names, logos and trademarks of Customer in advertising and promotional literature and SIKA' Web site upon Customer's prior consent.
14 Miscellaneous.
14.1 Export Regulations. Customer acknowledges that the licensed products and any direct products thereof may be subject to United States export laws, statutes and regulations, and that Customer will at all times comply with the provisions of such laws, statutes and regulations including obtaining any necessary or required licenses. Customer shall not export or re-export or otherwise transmit, directly or indirectly, the licensed products or any direct products thereof into, or use the licensed products or any direct products thereof in, any country prohibited or restricted under United States export laws, statutes or regulations or any other applicable laws.
14.2 Governing Law. The agreements between the parties shall be governed and construed in accordance with the laws of the State of New York. Furthermore, the parties agree that the terms of The Convention of Contracts for the International Sale of Goods do not apply to this Agreement.
14.3 Arbitration. In the case of any dispute regarding this Agreement, all parties to this Agreement agree that any controversy or claim arising out of or relating to this Agreement or the breach thereof, shall be settled by arbitration in accordance with the Rules of the American Arbitration Association then pertaining in the New York, New York area and judgment upon the award rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction thereof. The arbitration shall be heard before an arbitrator mutually agreeable to the parties; provided, that if the parties cannot agree on the choice of an arbitrator within 10 days after the first party to seek arbitration has given written notice, then the arbitration shall be heard by three arbitrators, one to be chosen by each party and the third to be chosen by the two arbitrators chosen by the parties. A hearing on the merits of all claims for which arbitration is sought by any party shall be commenced not later than 60 days from the date demand for arbitration is made by the first party seeking arbitration. The arbitrator(s) must render a decision within 10 days after the conclusion of such hearing. Any award in such arbitration shall be final and binding upon the parties and non-appealable, and any judgment thereon may be entered in any court of competent jurisdiction. The arbitrator(s) shall be deemed to possess the powers to issue mandatory orders and restraining orders in connection with such arbitration; provided, however, that nothing in this Clause shall be construed so as to deny the parties hereto the right and power to seek and obtain injunctive relief in a court of equity for any breach or threatened breach by the other party of any obligation contained in this Agreement. The prevailing party in any such arbitration proceeding shall be entitled to recover from the other party cost, expenses and reasonable attorney's fees incurred by the proceeding.
The place of arbitration shall be in New York, New York, USA.
14.4 Notice. All written notices given by either party under the agreements between the parties shall be given to the other party at the address shown on the face hereof by mail, overnight mail delivery, or telefax.
14.5 Severability. The invalidity or unenforceability of any term or provision of the agreements between the parties or these provisions shall not affect the validity or enforceability of the remaining terms or provisions of the agreement between the parties or theses provisions which shall remain in full force and effect and any such invalid or unenforceable term or provision shall be given full effect to the maximum extent permissible so as to effect the intent of the parties. Failure by either party to enforce any provision of the agreement between the parties or these provision will not be deemed a waiver of future enforcement of that or any other provision The agreement between the parties and these provisions have been negotiated by the Parties and their respective counsel and will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either Party.