PARAMETER GENERAL TERMS AND CONDITIONS
The following General Terms and Conditions are an integral part of the sales contract between PARAMETER GENERATION AND CONTROL, INC., a North Carolina corporation with principal offices at Black Mountain, North Carolina, U.S.A. (“Parameter”), and its Customer identified in the Submittal Documents referenced below (“Customer”). Parameter and Customer are sometimes referred to separately as a “party” or together as “parties.” For valuable consideration, the receipt and legal sufficiency of which is acknowledged, the parties agree:
1. In General. The parties intend for their legal and business relationship to be governed by the Submittal Documents and these General Terms and Conditions (together the “Contract”).
1.1 Parameter agrees to furnish the product and or service that the Customer has agreed to in the signed Submittal Documents (the “Product”).
1.2 The signed Submittal Documents are entirely in writing and consist only of drawings, schematics, installation, responsibilities, and detailed plans and specifications (the “Submittal”).
1.3 The Contract for the Product does not become legally binding on the parties, and Parameter is under no obligation to begin the production process for the Product, until each page of the Submittal and likewise any written change order, are identified by signature of both parties and date in the appropriate box or, if there is no signature box, on the bottom left corner of the page.
1.4 In case of conflict between the contents of the Submittal package and the Purchase Order, the Submittal controls. In case of conflict between the Submittal and these General Terms and Conditions, the Submittal controls.
1.5 The Submittal may be modified by written change order as follows. Customer may at any time request alterations by written notice to Parameter. Parameter will then exercise best efforts to advise Customer within ten (10) business days as to feasibility, price, and other changes, by submitting revised Submittal for acceptance by Customer. Customer will then have ten (10) business days to advise Parameter whether Customer accepts the change by returning all of the revised Submittal furnished by Parameter with Customer’s identifying signature and date on each revised Submittal, as provided above, otherwise Customer will be deemed to have declined the change. Customer may submit a revised request in response to any declined change order.
1.6 No Customer purchase order accepted by Parameter shall be cancelled or modified except as provided above. Customer’s purchase orders accepted by Parameter or mutually agreed change orders shall be automatically subject to all the terms and conditions of these General Terms and Conditions, whether or not the purchase order or change order so states; except any terms or conditions stated in a mutually agreed change order which are inconsistent with the Submittal or these General Terms and Conditions shall be binding on the parties. If Customer cancels a purchase order or change order after acceptance by Parameter, Customer shall reimburse Parameter for all costs incurred by Parameter in fulfilling or canceling the order.
2. Price and Terms of Payment. Customer shall pay Parameter for the Products purchased under this Contract at the price set forth in the quote, payable in U.S. Dollars only.
2.1 All prices for Products include packing in accordance with Parameter’s standard practices and international shipping regulations in effect at the time of shipment. Prices for Products do not include shipping, forwarding, and delivery charges, and do not include bank or collection fees such as wire and letter of credit fees, all of which must be paid by Customer.
2.2 Standard terms of payment for Products for domestic shipments (destinations within US states and territories) are fifty percent (50%) due immediately upon last signature on the Submittal, thirty percent (30%) due prior to shipment, and twenty percent (20%) due after installation/start-up is completed.
2.3 Standard terms of payment for Products for international shipment (all destinations other than US states and territories) are fifty percent (50%) due immediately upon last signature on the Order Confirmation and fifty percent (50%) prior to shipment.
2.4 Customer is responsible for and shall pay or reimburse Parameter for all taxes, duties, assessments and other governmental charges, however designated, associated with the execution or performance of this Contract.
2.5 Payment for Parameter expenses, services, change orders, and costs are due from Customer as invoiced by Parameter net thirty days (net-30).
2.6 All payments must be made without withholding, set off, deduction, or retention of any kind whatsoever, directly to Parameter Generation & Control, Inc., P.O. Box 129, Black Mountain NC 28711, U.S.A. All payments must be in immediately available funds satisfactory to Parameter (ACH or wire transfer), or by check made payable toParameter Generation & Control, Inc. Parameter reserves the right to charge a reasonable fee for returned checks due to insufficient funds. Address all payment inquiries to firstname.lastname@example.org.
2.7 All past due amounts, plus reasonable attorney fees and costs of collection if any, automatically bear interest at one and a half percent per month until paid. Late payment by Customer is cause for delay or cancellation of production or shipment by Parameter, without limitation of Parameter’s other legal remedies for breach of the Contract. Parameter reserves the right to withhold any services or disable equipment.
2.8 Cancellations are possible but they carry penalties based on the production stage they are in. The first tier is an order being cancelled prior to submittal sign off and it will carry a 10% contract value penalty. The second tier is an order that has been signed off on (submittal) but has only been in production for 4 weeks or less. This will carry a 25% penalty. Tier 3 is orders that are past 4 weeks in production and ready for shipment. These orders carry a 50% penalty.
3. Shipping and Delivery. Parameter’s obligation to ship Products shall be fully discharged and all title and risk of loss or damage shall pass to Customer when the Products are packed for shipping in accordance with Parameter’s standard practices in effect at the time of shipment and delivered to a carrier for shipment to Customer. Parameter shall not be obligated to load Products for shipment or to insure shipments but may pass through any such costs or charges to Customer for reimbursement.
3.1 Products intended for destinations within US states and territories and Canada will be shipped Ex-Works (Incoterms EXW) Parameter’s facility in Black Mountain, North Carolina, U.S.A. for delivery to Customer at the address given in the Submittal Documents via common carrier selected by Parameter.
3.2 Products intended for all other destinations will be shipped Ex-Works (Incoterms EXW) Parameter’s facility in Black Mountain, North Carolina, U.S.A. for delivery to Customer at the address given in the Specification Documents through a freight forwarder selected by Parameter.
3.3 Any date of delivery by Parameter in the Submittal or otherwise is an estimate and is not of essence to the Contract. Parameter shall not be liable to Customer or any third party for any loss, damage, or expense resulting from delay in delivery of any Product for any reason.
3.4 Customer arranged shipments are acceptable, however, customers have five (5) business days to arrange for a shipment that is ready. Should the customer fail to pick up goods within the five (5) day period, Parameter reserves the right to charge a $100 per day storage fee. Shipments shall not leave the facility until storage fees are paid in full. For customer arranged shipments, Parameter shall provide Product weight and dimensions and required documentation such as SLI and commercial invoice. All other arrangements are the responsibility of the Customer.
4. Acceptance of Products. Customer shall conduct any incoming acceptance tests as soon as possible upon arrival of the Products at the shipping address and no later than seven (7) days from the date of receipt (the “Acceptance Period”). Any Products not rejected by Customer by notification to Parameter within the Acceptance Period shall be deemed accepted as conforming to the Submittal. During the Acceptance Period, Customer shall promptly report to Parameter any shortage, damage, or discrepancy in or to a shipment of Products discovered by Customer and furnish written evidence or other documentation that Parameter deems appropriate. If the substantiating evidence delivered by Customer demonstrates to Parameter’s satisfaction that the shortage, damage or discrepancy existed at the time of delivery of the Products to the carrier, Parameter shall, at its discretion, either promptly deliver additional or substitute Products to Customer in accordance with the delivery procedures set forth in this Contract or issue a credit to Customer. Parameter shall not be liable for any additional costs, expenses or damages incurred by Customer directly or indirectly because of any shortage or damage to Products.
5. Intellectual Property. The Contract includes the following End User License Agreement (“EULA”) with Customer:
5.1 There are no implied licenses granted to Customer or others under the Contract or otherwise with respect to Products.
5.2 Parameter hereby grants Customer a limited, nonexclusive license to use embedded software furnished as an integral component of the Product, including all related documentation and any patches, bug fixes, updates, upgrades and other modifications (“Product Software”) relating to the ordinary function of the Product according to the Specification Documents, continuing for as long as Customer owns the Product, except Parameter may terminate this license for any breach of the EULA or any other term of the Contract by Customer.
5.3 The Product, including but not limited to any Product Software, and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of Parameter and its licensors. Parameter and its licensors, if any, reserve all rights in and to the Product and the Product Software not expressly granted to Customer in this Contract. All suggestions, feedback, or modifications to Products or Product Software provided by Customer to Parameter shall be Parameter’s sole property.
5.4 Customer shall not nor will it permit others to modify, make derivative works of, disassemble, reverse compile, or reverse engineer, any Product or Product Software; or to copy the Product Software, or to make any use of Product Software other than directly related to the ordinary function of the Product according to the Specification Documents or on any device separately from the Product itself.
5.5 Products, including the Product Software, which are supplied to or purchased by or on behalf of the United States Government, are intended only as a commercial end use item and the rights of the United States shall not exceed the minimum rights listed in the Federal Acquisition Regulation system for restricted computer software.
5.6 Parameter may, but is not required to, register Customer as the end user of any Product Software supplied by a third-party vendor.
5.7 Any violation by Customer of this EULA voids the limited warranty given below on the Product.
6. Warranties and Limitations.
6.1 LIMITED WARRANTY: Parameter warrants that for a period of thirty-six (36) months from the end of the Acceptance Period (the “Acceptance Period” as defined in Section 4), the Product, including all of its component parts installed by Parameter, conforms to the Submittal and is free from any defects in design, workmanship, construction or materials; except any warranty of a component manufacturer or supplier other than Parameter is the sole warranty as to such component. No other affirmation of fact or promise made by Parameter, whether or not in this Contract, shall constitute a warranty. Our obligation under this warranty is limited to repairing or replacing, at our factory, any defective parts, when returned to us by the Customer, transportation charges prepaid, and which our examination discloses to have been factory defective. PARAMETER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. This limited warranty gives Customer certain legal rights and Customer may have other legal rights which vary from jurisdiction to jurisdiction. If Customer attends a training seminar offered by Parameter during the Initial Warranty Period, Customer will receive an incentive. If the training seminar for whatever reason is cancelled, Customer has the ability to attend a Parameter training seminar outside of the initial warranty period.
6.2 In no event shall the entire liability of Parameter with respect to any claim whatsoever or for any breach of this Contract exceed the price paid by Customer for the Product to which the claim relates.
6.3 Parameter shall not be liable for indirect, special, incidental, or consequential damages, lost profits, loss of use, or the cost of procurement of substitute goods, regardless of whether Parameter has been advised of the possibility of such damages.
6.4 Neither party shall be liable to the other under this Contract for failure to perform, or for delay in the performance of, any of its obligations hereunder if such a failure or delay is caused by circumstances beyond its reasonable control, including, but not limited to, acts of God or the public enemy, strikes, lockouts, or other labor trouble, fire, explosion, flood, war, insurrection, riot, sabotage, or failure of supply of fuel, electric power, raw materials; except for the obligation of payment for Products ordered or delivered.
7. Indemnification. Customer shall fully indemnify and hold Parameter harmless from all claims, loss or liability, including reasonable attorney fees and costs of defense, arising out of Customer’s breach of any obligation or representation under the Contract, including but not limited to claims against Parameter alleging that any goods or services provided by Parameter in accord with the Specification Documents infringe any patent, copyright, trade secret, or similar right of a third party.
8. Compliance with Laws. Parameter shall not be obligated to make any shipment or furnish any service which in its judgment could, at the time of shipment or rendering, constitute a violation of any laws, regulations or policies of the United States or any other nation where Products are scheduled for ultimate delivery. Products, including any Product Software or underlying technology, are subject to United States export control laws and may be subject to export or import regulations in other countries. Customer shall strictly comply with all such laws and regulations and acknowledges Customer has the sole responsibility to obtain authorization to export, re-export, or import Products and related technology, as may be required by law. Parameter and Customer shall each strictly comply with the U.S. Foreign Corrupt Practices Act (“FCPA”) and all other anti-kickback laws in all applicable jurisdictions.
9. Interpretation and Enforcement of the Contract.
9.1 This Contract constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior agreements between the Parties, whether written or oral, relating to the same subject matter. No modification, variation, amendment or supplement to this Contract shall be effective for any purpose whatsoever unless reduced to writing and signed by the Party against whom they are to be enforced. Approvals, consents, and waivers of the Parties shall also be in writing and signed by the Party against whom they are to be enforced.
9.2 This Contract may be executed in several counterparts, each of which shall constitution original, but all of which together shall constitute one and the same instrument. Should any counterpart be translated into a language other than English, the original English language version shall control any discrepancies or omissions.
9.3 This Contract shall be governed and interpreted, and all rights and obligations of the parties shall be determined, in accordance with the laws of the State of North Carolina, without regard to its conflict of laws rules and without regard to the provisions of the UnitedNations Convention on Contracts for the International Sale of Goods.
9.4 Each provision of this Contract shall be severable. If any provision of the Contract, or the application to any circumstance, person or place, shall be held by a court or other tribunal of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Contract and such provision as applied to other circumstances, persons or places shall remain in force, and this Contract shall be construed to give effect to the intent of the parties as otherwise expressed in this Contract.
9.5 The waiver by either Party of a breach or default in any of the provisions of this Contract by the other Party shall not be construed as a waiver of any later breach. No delay or omission on the part of either Party in exercising any right, power or privilege under this Contract shall operate as a waiver of any breach or default by the other Party.
9.6 All notices and other communications required or permitted under this Contract shall be in writing and shall be sent by electronically confirmed facsimile transmission (FAX) or email to the number or address set forth below (in each such case notice shall be deemed given on the date of transmission) or by commercially recognized overnight delivery service (in which case notice shall be deemed given when received by addressee or on the fourth day after the date of delivery to the courier, whichever is earlier.
9.7 Neither party shall assign this Contract nor any of its respective rights or obligations without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed, except that Parameter may assign this Contract to any successor in interest by operation of law, or pursuant to a merger, corporate reorganization, or sale of all or substantially all of Parameter’s business
or assets without consent of Customer. Any prohibited assignment shall be null and void. This Contract shall inure to the benefit of successors and permitted assigns.
9.8 The headings contained in this Contract have been inserted for convenience of reference only and shall not modify, define, expand or limit any of the provisions of this Contract.
9.9 References to the singular include the plural and to masculine include the feminine, and vice versa, according to context.
9.10 “Days” mean calendar days, and time is of the essence to all dates and time periods in this Contract, unless the Contract specifies otherwise.
10. Arbitration of Disputes. Any dispute, controversy or claim arising out of or relating to this Contract, including any questions regarding its existence, validity, or termination, or the jurisdiction or any arbitral body, shall be resolved by binding arbitration in accordance with the North Carolina Revised Uniform Arbitration Act (the “Act”) and Commercial Arbitration Rules of theAmerican Arbitration Association (the “AAA”) then in effect, or if the parties are of different nationalities then the administration and rules of the AAA International Centre for Dispute Resolution shall apply.
10.1 The case shall be heard before one arbitrator unless either party requests appointment of three arbitrators, either in the demand for arbitration or within twenty (20) days of filing the demand. The parties shall select the arbitrator(s), who need not be members of the AAA, but if the parties fail to agree on the selection of the arbitrator(s) within twenty (20) days after either party’s demand for arbitration is filed, the AAA will choose the arbitrator(s), and if the AAA fails for any reason to choose the arbitrator(s) within thirty (30) days after filing the demand then either party may apply in court for the appointment of an arbitrator(s) under the Act.
10.2 The place of arbitration shall be Asheville, North Carolina, U.S.A. unless otherwise consented to by both parties.
10.3 The arbitration shall be conducted in the English language, and each party shall be responsible for the translation costs of the documents it submits and interpreter costs of each witness’s testimony into English, but at the request and expense of a party, documents and testimony shall be translated into the language of the party.
10.4 The Arbitrator(s) shall have the power to issue injunctions and temporary restraining orders, or to award specific performance, but not to award consequential or punitive damages.
10.5 The award of the Arbitrator(s) shall be in the form of a written, reasoned award, and shall be final and binding in any jurisdiction under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) and under the Act.