TERMS AND CONDITIONS OF
SALE – USED EQUIPMENT
1. Definitions:
As used herein, the following terms shall have the
meanings ascribed to them below:
A. "GT": "Authorized GT Representative":
"GT" refers to
Gerber Technology, Inc. "Authorized GT Representative" shall mean
only a GT Officer, a representative of GT's Contracts Department, or a person
specifically designated as authorized by GT's President, in writing.
B. "Agreement":
"Agreement" shall
refer to a GT Purchase Agreement or any other Customer order form accepted by
GT that incorporates these Standard Terms and Conditions as specified in
Section 2 (Quotations, Proposals and Purchase Orders) below.
C. "System":
The "System" shall
mean the products, equipment, and services identified in the System
Configuration section of the Agreement and includes only those components,
accessories, services, and documentation supplied as standard by GT as
indicated in the GT Product Description literature unless a special configuration
is clearly specified. The term System,
as generally used, shall include the entire system of hardware and Licensed
Programs, unless specifically excepted in a particular provision. GT reserves the right to substitute new
hardware components or Licensed Program software versions of equivalent
function for the System Configuration specified in the Agreement.
D. "Purchase":
Any reference to the
"purchase" or "sale" of the System shall be deemed to mean
"license" as that reference is applied to the Licensed Programs.
E. "Licensee": "Licensed Program(s)":
Customer shall from time to
time be referred to as "Licensee" with respect to the Computer
Program License. "Licensed
Program(s)" include any computer programs supplied to Licensee by GT, whether
on media or imbedded in ROM or equivalent devices, and all material pertinent
to these programs in machine readable or printed form, including, for example,
discs, tapes, manuals, listings, documentation and any updated program or
program portion thereafter furnished to Licensee by GT in connection with
Licensed Programs. The Licensed
Programs may include material licensed to GT by others, and as to such material
GT representations as to ownership, title, and proprietary interest are made on
behalf of such others as well as GT.
F. "Designated Hardware":
"Designated
Hardware" includes one or more GT Systems, as identified in the Agreement,
including all later System substitutes and enhancements.
2. Quotations, Proposals, and Purchase Orders
These Standard Terms and
Conditions of Sale apply to all GT quotations and proposals of sale and to all
Customer orders for the System. Unless
and until specifically accepted in writing by an Authorized GT Representative,
GT shall not be bound by, and rejects, any provisions on Customer's orders or
forms which are at variance with or are in addition to the terms of GT's
quotations or proposals for the System and these Standard Terms and Conditions
of Sale. The quotations and proposals
do not constitute a final written offer; Customer's acceptance of a GT proposal
or any related Customer order are subject to GT's final approval at its
corporate headquarters in Connecticut, U.S.A.
Customer may choose to accept these Standard Terms and Conditions of
Sale by specifically incorporating them by reference in a Customer order or by
specifically referencing a GT proposal which includes a copy of these Standard
Terms and Conditions of Sale. By any
such reference Customer shall be deemed to agree that these Standard Terms and
Conditions of Sale shall govern the Agreement between GT and Customer, that any
printed language on the Customer's order shall have no force and effect, that
any provisions in that order form are subordinate to these Standard Terms and
Conditions of Sale, and that no additional provisions in Customer's order form
shall apply unless specifically accepted in a subsequent writing by an
Authorized GT Representative.
3. Shipment; Additional Charges
Unless specifically agreed
otherwise in writing: i) prices are F.O.B. GT's U.S.A. factory; ii) title to
the System (excluding Licensed Programs) and all risk of loss and damage shall
pass to Customer upon delivery to a common carrier at the F.O.B. point; and
iii) GT shall have the right to select the method of shipment and the carrier,
and shall ship and handle insurance at Customer's additional expense. Customer shall pay or reimburse GT for all
duties, levies, or other government fees or taxes now in force or enacted in
the future. If the final layout drawings
change any initial configuration drawings submitted by Customer to GT, GT
reserves the right upon notice to adjust the purchase price of the System, and
Customer shall pay any resulting increase.
As to retrofits and upgrades, GT's quoted price assumes that the GT
hardware currently owned or leased by Customer is in good working order as
originally installed and/or modified by GT's authorized personnel. All such retrofit/upgrade prices are subject
to GT's inspection of the installed hardware prior to commencement of the
retrofit. GT reserves the right to
impose additional charges for an installed System which is not in good working
order or which has been modified without GT's authorization.
4. Payment Terms; Security Interest
A. The full purchase price of the System together with applicable
packaging, insurance, freight and installation charges, less any outstanding
credits, shall be payable in U.S. Dollars prior to shipment.
B. GT reserves the right at any time to require
that Customer furnish GT with an irrevocable letter of credit issued by a
recognized bank for any outstanding amounts payable to GT under the Purchase
Agreement. If Customer fails to comply
in a timely manner with such a request for a letter of credit or to pay any
amount to GT when due, GT shall have the right to suspend its further
performance under the Agreement, to offset its damages against the deposit and
to discontinue all maintenance, warranty and support services to Customer under
this and other Agreements.
C. GT shall retain a security interest in the System until the entire
System purchase price and all additional charges are fully paid. Customer shall deliver to GT, on request,
all properly executed documents GT deems necessary to evidence or effectuate
this security interest, including, for example, security agreements and UCC-1
forms.
5. Installation and Testing
A. Unless otherwise specified, within fifteen (15) days of its signing
the Agreement, Customer shall provide GT with any final documents and information
required for the specific System configuration and installation.
B. Customer shall promptly notify GT of the arrival of the System and
take all appropriate action to protect it from damage.
C. Installation by GT shall only be provided if specified as part of
the System. Regardless of whether GT
installation services are included as part of the System, Customer is solely
responsible for preparing the System site, maintaining a suitable System
environment, providing any required cabling and rigging, air conditioning,
compressed air, and power (including power transformers) for the System in
accordance with GT's specifications, and for supplying labor and equipment for
the movement of the System to its final location and for other non-technical
tasks.
D. If any installation of the System by GT is delayed at the request
of or due to acts or omissions of Customer, GT's personnel may leave the
installation site and return at a later agreed upon date. Customer shall pay all additional
installation expenses incurred by GT as a result of the delay at GT's then
prevailing rates.
E. Following completion of any GT installation, GT shall reasonably
demonstrate to Customer that the System is electrically and mechanically
installed and that it can successfully perform GT's standard tests. At that time the System shall be deemed
accepted by Customer for all purposes.
If customer does not order GT installation services, then customer
acceptance shall be deemed to occur at the time of completion by GT of its final
standard factory test.
6. Training
Training by GT shall be
included with the System only if specified as part of the System configuration
in the Agreement or in the GT printed Product Description for such System. All training by GT shall be held at a GT
training facility unless otherwise specified.
All such training shall be used by Customer within twelve (12) months of
the date of shipment of the System. All
additional training requested by Customer beyond the specified limited number
of hours or beyond twelve (12) months from the shipment date shall be at GT's
then prevailing rates.
7. Ownership of Industrial and Intellectual Property
The System and its
documentation has been developed either by GT supported research or have been
paid for by GT and thus represent a substantial investment by GT in industrial
and intellectual property. Therefore,
no System sale is to be construed as the grant by GT to the Customer of an
implied license to copy or to reconstruct anything falling within the scope of
patents, copyrights, trade secrets, technical data, know-how or other
industrial property of GT or third parties.
Any permission to so copy or reconstruct shall be only by prior written
consent of an Authorized GT Representative.
The System is a standard product line of GT and is sold to both the
general public and to government entities on a competitive basis. No System
sale to any U.S. government entity shall be effective unless an addendum hereto
has been executed by both parties hereto disclaiming any transfer of unlimited
rights to GT intellectual property and technical data.
8. Computer Program License
A. Licensed Use
Upon acceptance of the
Agreement, GT as Licensor grants, and Customer as Licensee accepts, on the
following terms and conditions, a non-transferable, non-exclusive license to
use Licensed Programs only on the Designated Hardware at the Customer's initial
facility location at the time of the Agreement.
B. Term
Unless otherwise terminated
by GT in accordance with the Agreement, the term of this License shall continue
for as long as Licensee uses the Licensed Programs on the Designated Hardware.
C. Copies
1) Any Licensed Program which is provided by GT
in human readable form, such as written or printed documents, shall not be copied,
in whole or in part, by Licensee.
Additional copies of printed materials may be obtained from GT at the
charges then in effect. Any Licensed
Program which is in machine readable form and not copy protected may be copied
by Licensee in whole or in part, for Licensee's backup or archive purposes
only. No more than one (1) such archive
copy shall be in existence with respect to any Licensed Program at any time
without prior written consent from GT.
Licensee shall retain possession or control and maintain appropriate
records of the number and location of all such copies of the Licensed Programs
and make such records available to GT upon request.
2) The original and any copies of Licensed
Programs, in whole or in part, which are made by Licensee, shall be the
property of GT. This does not imply
that GT owns the media on which the copies reside. Licensee shall ensure that GT's proprietary notice appears on all
copies of the Licensed Program whether copied in whole or in part or in any
modified form.
D. Protection and Security of Licensed Programs
1) Licensee shall not provide or otherwise make
available any Licensed Programs, including, but not limited to, flow charts,
instruction manuals, logic diagrams and source codes, in any form, to any
person other than Licensee's employees whose sole need and intention is to use
such Licensed Programs in conjunction with Designated Hardware. Licensee shall take appropriate action by
instruction, agreement, or otherwise with its employees to satisfy Licensee's obligations
under this Computer Program License with respect to use, copying, modification,
and protection and security of Licensed Programs. Licensee shall notify GT immediately if Licensee has knowledge
that any unlicensed party possesses any portion of the Licensed Programs. If GT discloses to Licensee's employees any
proprietary and/or confidential information, including, but not limited to the
materials comprising the Licensed Programs, Licensee shall require these
personnel to agree not to disclose that proprietary and confidential
information.
2) The obligations with respect to use and
nondisclosure shall not apply to i) information which is or becomes publicly
known through no fault of Licensee; ii) information learned by Licensee from a
third party entitled to disclose it; iii) information already known by Licensee
before receipt from GT as evidenced in writing; or iv) information which
Licensee can clearly and convincingly demonstrate to have been independently
developed by an employee or consultant of Licensee who had no previous
knowledge of information received from GT.
Obligations of nondisclosure shall not terminate on the termination of
this Computer Program License.
3) Customer shall not attempt directly or
indirectly to export, ship, or otherwise divert the Licensed Programs in any
form to any country for which the U.S. Government requires and export license
or other governmental approval.
E. Title
Title to and ownership of all
Licensed Programs and all updates and modifications shall at all times remain
with GT or GT's supplier.
F. Termination
If Licensee neglects or fails
to pay in full for the System or neglects or fails to perform or observe any of
its obligations under the terms of this Computer Program License, or if any
assignment shall be made of its business for the benefit of creditors, or if a
receiver, trustee in bankruptcy or a similar officer shall be appointed to take
charge of all or part of its property, or if it is adjudged as bankrupt, or if
Licensee shall attempt to transfer or assign this License to any third party
whether or not together with the Designated Hardware, this License Agreement
and all other licenses granted to Licensee by GT shall terminate automatically
immediately. Within two (2) weeks after
written notice of any such termination, Licensee shall return to GT the
original and all copies, in whole or in part, including partial copies and
modifications, of the Licensed Programs.
G. Standard Software Updates to the Licensed Programs, if and as GT
makes them generally available to other customers, shall be supplied to
Customer at no additional charge for a period of one (1) year from the date of
shipment of the System. The provisions
of this Computer Program License relating to title, termination, use, copies,
and protection and security shall apply to such Updates.
9. No Warranty
A.
GT does not
warrant the system, and THIS GT SYSTEM IS SOLD AS IS WITHOUT ANY
REPRESENTATION OR WARRANTY OF ANY KIND.
B.
Customer will have
the right to inspect the System at the appropriate GT facility prior to
shipment of the System or for a period of ten (10) days following the execution
of this Agreement, whichever is less.
Upon inspection, Customer will have the right to cancel this Agreement
in full if the system does not meet the specifications or condition required by
the Customer. Any payment made by the
Customer upon cancellation of this Agreement will be refunded to the Customer
by GT within a period of thirty (30) days following said cancellation. If the Customer waives its right of
inspection, the Agreement will remain in force and the payment for the System
will be non-refundable.
C. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES AND
THERE ARE NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10. Patents and Copyrights - Indemnification
A. GT shall indemnify and hold Customer harmless from any claims and
suits for patent or copyright infringement asserted or brought against the
customer wherein the System is alleged to infringe a patent or copyright, or
wherein its normal use or its use as recommended by GT to the customer is
alleged to constitute the infringement.
No indemnity is provided against any claim or suit for patent or
copyright infringement wherein any System is only an element in a combination
with other products not furnished by GT and wherein the combination is alleged
to constitute the infringement.
Further, no indemnity is provided wherein the System is used in other
than its normal way or in a way not recommended by GT or in a process wherein
the System performs less than all of the steps of the process and the process
is alleged to constitute the infringement.
B. If any System which is subject to this indemnity is claimed,
alleged or determined to infringe a patent issued to, or a copyright registered
by, or either owned by or licensed to any third party, GT shall have the right
and option to modify that System to avoid such infringement. If, in GT's sole opinion, such modification
cannot practicably be accomplished to avoid such infringement. GT shall have the right to terminate the
Purchase Agreement without liability on the part of GT to Customer. In such event, GT will agree to accept
return of the System by Customer and to refund to Customer the full price paid
for the System less an amount for depreciation of the System, such depreciation
to be calculated on a straight line basis over seven (7) years.
C. Customer shall promptly notify GT in writing of any third party
claim or suit alleging any patent or copyright infringement for which GT is
alleged to provide indemnification. In
such event, GT shall have the right in its sole discretion to elect to defend
against or to settle any such claim or suit. Customer shall, at GT's request but at GT's expense, cooperate
with GT and provide assistance and information with respect to any claim of
patent or copyright infringement. GT
shall have the right to select counsel, at GT's expense, to defend any lawsuit
for patent or copyright infringement.
If Customer shall also elect to be represented by its chosen
counsel, Customer shall pay the fees
and expense of such counsel. GT shall
pay the full amount of any other expense of defense and also pay any damages and/or
costs awarded against the Customer up to the full amount the Customer paid GT
for the involved product. Nothing
herein, express or implied, shall be interpreted or construed to create any
obligation on GT to pay to Customer, or others, any damages consequential or
otherwise, other than those set forth above.
11. Limitation of Liability/Actions
A. The remedies set forth in Section 9 (Warranty) and Section 10
(Patents and Copyrights) are in lieu of all other remedies, arising out of or
in connection with the use or operation of the System. GT's LIABILITY FOR ALL DAMAGES, INCLUDING
BUT NOT LIMITED TO LIABILITY FOR PATENT AND COPYRIGHT INFRINGEMENT, SHALL NOT
EXCEED THE LESSER OF THE DIRECT DAMAGES OR THE CHARGES PAID TO GT BY CUSTOMER
FOR THE PARTICULAR SYSTEM. GT shall not
be liable for any lost profits, or for any claim or demand against Customer by
any third party, except as specified in these Standard Terms and
Conditions. Customer acknowledges that
upon creation, and periodically thereafter, it shall be Customer's sole
responsibility to preserve its own data files by making back-up copies or
otherwise. GT shall not be responsible
for the lost data whether or not the loss is the result of malfunction of the
System, or servicing, or of Customer having given the data to GT. IN NO EVENT SHALL GT BE LIABLE FOR
CONSEQUENTIAL DAMAGES EVEN IF GT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
B. In no event shall GT be liable for damages of any kind or nature
resulting from the design or operation of equipment or software not furnished
by GT, from improper or negligent use or operation of the System, or from a
System altered to repaired by personnel other that those in the employ of GT or
authorized in writing by GT to repair the System.
C. GT shall not be responsible for the acts, omissions and workmanship
of the employees, contractors, agents or suppliers of Customer. Further, GT shall not be liable in any event
for any loss or injury to persons or property (including the System installed)
caused in whole or in part by i) acts or omissions of Customer, its employees,
contractors, agents, suppliers or of their employees, agents or subcontractors
or ii) the failure/malfunction of any tools, equipment, software, facilities or
devices not furnished by GT.
D. The commencement of any action or proceeding on any claim regarding
the System, its design or operation or any defect therein, latent or otherwise,
must be brought by Customer within one (1) year of delivery of the System, or
any part thereof, to Customer. The
forgoing limitation shall not apply to actions brought by Customer for
indemnification pursuant to Paragraph 10 hereof.
12. Premature Termination
A. GT may, at its election, terminate the Agreement immediately and/or
cancel any unfilled portion of it by written notice to the Customer if:
1) Customer becomes bankrupt or insolvent or
enters into any arrangement or composition with its creditors or if a receiver
is appointed to direct the business of Customer, or if Customer sells or assigns
a majority of its assets or merges or consolidates with another firm,
corporation or entity so that the resulting entity designated to purchase the
System has a lesser net worth or diminished credit worthiness.
2) Customer has committed a material breach of
any of the terms and conditions of the Agreement and fails to cure such breach
in a timely manner to GT's satisfaction.
B. If GT so terminates the Agreement, GT may, without limiting or
waiving any other remedies available to it, offset in whole or in part its
resulting damages by retaining Customer's initial payment or deposit.
13. Force Majeure; Delays
GT shall not be liable for
delay, non-delivery, or the performance of any other term or condition of the
Agreement due to causes beyond GT's reasonable control, including but not
limited to acts of God, natural or human-caused disasters such as flood and
fire, the public enemy, war (declared or undeclared), civil disturbance,
actions of or failures by third parties including suppliers, labor disputes,
compliance with governmental regulations or other authority, transit
interruptions, or the inability of freight forwarders or carriers to complete
shipments in accordance with GT instructions.
Any delay in delivery may cause extra expense to GT which, at GT's
option, may result in additional charges or an increase in the System purchase
price.
14. Customer Indemnification of GT
Customer shall indemnify and
hold GT harmless from and against any and all losses, claims, costs, expenses,
damages and liabilities, including reasonable attorney's fees, which GT may
suffer or be required to pay, arising out of injury (or death) to persons, or
damage to property, resulting from or pertaining to the use or operation of the
System whether or not occasioned by the negligence or misconduct of Customer,
its agents, employees, independent contractors or invitees.
15. U.S. Export Regulations and Restrictions
GT Systems are subject to
export and other similar restrictions imposed by U.S. law. By entering into an Agreement, Customer
shall be confirming to GT that neither the Licensed Programs (including data as
well as software) nor the System technology, and hardware, are intended to be
shipped or otherwise transmitted, directly or indirectly to any restricted party
inside, or to any place outside, the U.S.A. or Canada.
16. Miscellaneous
A. The Agreement shall be governed and construed in accordance with
the Laws of the State of Connecticut.
B. Sole jurisdiction and venue of any kind and all claims and lawsuits
relating to the System or in any way to the Agreement or these Standard Terms
and Conditions of Sale shall reside in Hartford County, Connecticut, U.S.A.
C. The Agreement, including all attachments, shall constitute the
entire understanding between the parties with respect to the subject matter of
the Agreement and shall supersede all previous proposals of sale,
communications, representations, understandings, and agreements, either oral or
written, between the parties with respect to the subject matter.
D. If any of the provisions of the Agreement are deemed or adjudged
invalid under any applicable statute or rule of law, those provisions shall be
deemed omitted and all other terms and provisions of the Agreement shall
continue in full force and effect.
E. The Agreement shall not be assigned by Customer and any attempt by
Customer to assign this Agreement shall be deemed void.
F. The waiver on any one occasion by either party to the Agreement of
any breach by the other party shall not be deemed a waiver of any subsequent
breach of the Agreement.
G. No amendment or modification of the Agreement shall be valid or
binding upon either party unless made in writing and signed, respectively, by
an authorized representative of Customer and by an Authorized GT
Representative.
H. Provided that Customer has signed an Agreement incorporating these
Terms and Conditions of Sale, that Agreement shall be deemed accepted by GT
upon delivery of the System notwithstanding the fact that a fully executed
original has not been returned to Customer.
Such acceptance shall not be interpreted or construed as acceptance by
GT of any other terms and conditions other than these Standard Terms and
Conditions of Sale. GT's failure to
object to provisions contained in any communication from Customer shall not be
deemed a waiver of any of the provisions of the Agreement.
