Terms & Conditions of Sale for Sutron Corporation Products and Services
This document sets forth the Terms & Conditions of Sale for goods manufactured and/or supplied, and services provided, by Sutron Corporation of Sterling, Virginia (“Sutron”) and sold to the original purchaser thereof (“Buyer”). Unless otherwise specifically stated in a previously-executed written purchase agreement signed by authorized representatives of Sutron and Buyer, these Terms & Conditions of Sale establish the rights, obligations and remedies of Sutron and Buyer which apply to this offer and any resulting order or contract for the sale of Sutron’s goods and/or services (“Products”).
- APPLICABLE TERMS & CONDITIONS
These Terms & Conditions of Sale are contained directly and/or by reference in Sutron’s offer, order acknowledgment, and invoice documents. The first of the following acts constitutes an acceptance of Sutron’s offer and not a counteroffer and creates a contract of sale (“Contract”) in accordance with these Terms & Conditions: (i) Buyer’s issuance of a purchase order document against Sutron’s offer; (ii) acknowledgement of Buyer’s order by Sutron; or (iii) commencement of any performance by Sutron pursuant to Buyer’s order. Provisions contained in Buyer’s purchase documents (including electronic commerce interfaces) that materially alter, add to or subtract from the provisions of these Terms & Conditions of Sale are not a part of the Contract.
Buyer may cancel goods orders subject to fair charges for Sutron’s expenses including handling, inspection, restocking, freight and invoicing charges as applicable, provided that Buyer returns such goods to Sutron at Buyer’s expense within 30 days of delivery and in the same condition as received. Buyer may cancel service orders on ninety (90) day’s prior written notice, and refunds will be prorated based on the duration of the service plan. Inspections and reinstatement fees may apply upon cancellation or expiration of service programs. Seller may cancel all or part of any order prior to delivery without liability if the order includes any Products that Seller determines may not comply with export, safety, local certification, or other applicable compliance requirements.
Delivery terms are Ex Works Sutron’s point of shipment (Incoterms 2010). Legal title and risk of loss or damage pass to Buyer upon transfer to the first carrier. Sutron will use commercially reasonable efforts to deliver the Products ordered herein within the time specified on the face of this Contract or, if no time is specified, within Sutron’s normal lead-time necessary for Sutron to deliver the Products sold hereunder. Upon prior agreement with Buyer and for an additional charge, Sutron will deliver the Products on an expedited basis. Standard Service delivery hours are 8 am – 5 pm Monday through Friday, excluding holidays.
Buyer will promptly inspect and accept any Products delivered pursuant to this Contract after receipt of such Products. In the event the Products do not conform to any applicable specifications, Buyer will promptly notify Sutron of such nonconformance in writing. Sutron will have a reasonable opportunity to repair or replace the nonconforming Product at its option. Buyer will be deemed to have accepted any Products delivered hereunder and to have waived any such nonconformance in the event such a written notification is not received by Sutron within thirty (30) days of delivery.
- PRICES & ORDER SIZES
All prices are in U.S. dollars and are based on delivery as stated above unless otherwise quoted by Sutron. Prices do not include any charges for services such as insurance; brokerage fees; sales, use, inventory or excise taxes; import or export duties; special financing fees; VAT, income or royalty taxes imposed outside the U.S.; consular fees; special permits or licenses; or other charges imposed upon the production, sale, distribution, or delivery of Products. Buyer will either pay any and all such charges or provide Sutron with acceptable exemption certificates, which obligation survives performance under this Contract. Sutron reserves the right to establish minimum order sizes and will advise Buyer accordingly.
All payments must be made in U.S. dollars unless otherwise quoted by Sutron. For Internet orders, the purchase price is due at the time and manner set forth at the Internet offering site. Sutron may require cash or credit card payment ARO. To the extent that Sutron extends any credit, invoices for all orders are due and payable NET 30 DAYS from date of the invoice without regard to delays for inspection or transportation, with payments to be made by check to Sutron at the Sutron address indicated or by wire transfer to the account stated on the front of Sutron’s invoice. In the event payments are not made or not made in a timely manner, Sutron may, in addition to all other remedies provided at law, either: (a) declare Buyer’s performance in breach and terminate this Contract for default; (b) withhold future shipments until delinquent payments are made; (c) deliver future shipments on a cash-with-order or cash-in-advance basis even after the delinquency is cured; (d) charge interest on the delinquency at a rate of 1-1/2% per month or the maximum rate permitted by law, if lower, for each month or part thereof of delinquency in payment plus applicable storage charges and/or inventory carrying charges; (e) repossess the Products for which payment has not been made; (f) recover all costs of collection including reasonable attorney’s fees; or (g) combine any of the above rights and remedies as is practicable and permitted by law. Buyer is prohibited from setting off any and all monies owed under this paragraph from any other sums, whether liquidated or not, that are or may be due Buyer, which arise out of a different transaction with Sutron or any of its affiliates. Should Buyer’s financial responsibility become unsatisfactory to Sutron, in its reasonable discretion, Sutron may require cash payment or other security. If Buyer fails to meet these requirements, Sutron may treat such failure as reasonable grounds for repudiation of this Contract, in which case reasonable cancellation charges shall be due Sutron. Buyer grants Sutron a security interest in the Products to secure payment in full, which payment releases the security interest but only if such payments could not be considered an avoidable transfer under the U.S. Bankruptcy Code or other applicable laws. Buyer’s insolvency, bankruptcy, assignment for the benefit of creditors, or dissolution or termination of the existence of Buyer, constitutes a default under this Contract and affords Sutron all the remedies of a secured party under the U.C.C., as well as the remedies stated above for late payment or non-payment.t. See ¶22 for further wire transfer requirements.
- LIMITED WARRANTY
Sutron warrants that Products sold hereunder will be free from defects in material and workmanship and will, when used in accordance with the manufacturer’s operating and maintenance instructions, conform to any express written warranty pertaining to the specific goods purchased, which for most Sutron instruments is for a period of twenty four (24) months from delivery. Sutron warrants that services furnished hereunder will be free from defects in workmanship for a period of ninety (90) days from the completion of the services. Parts provided by Sutron in the performance of services may be new or refurbished parts functioning equivalent to new parts. Any non-functioning parts that are repaired by Sutron shall become the property of Sutron. No warranties are extended to consumable items such as, without limitation, reagents, batteries, mercury cells, and light bulbs. All other guarantees, warranties, conditions and representations, either express or implied, whether arising under any statute, law, commercial usage or otherwise, including implied warranties of merchantability and fitness for a particular purpose, are hereby excluded. The sole remedy for Products not meeting this Limited Warranty is at Sutron’s option: repair, replacement, or credit or refund of the purchase price. This remedy will not be deemed to have failed of its essential purpose so long as Sutron is willing to provide such replacement, credit or refund.
Indemnification applies to a party and to such party’s successors-in-interest, assignees, affiliates, directors, officers, and employees (“Indemnified Parties”). Sutron is responsible for and will defend, indemnify and hold harmless the Buyer Indemnified Parties against all losses, claims, expenses or damages which may result from accident, injury, damage, or death due to Sutron’s breach of the Limited Warranty. This indemnification is provided on the condition that the Buyer is likewise responsible for and will defend, indemnify and hold harmless the Sutron Indemnified Parties against all losses, claims, expenses or damages which may result from accident, injury, damage, or death due to the negligence or misuse or misapplication of any goods or services by the Buyer or any third party affiliated or in privity with Buyer.
- PATENT PROTECTION
Subject to all limitations of liability provided herein, Sutron will, with respect to any Products of Sutron’s design or manufacture, indemnify Buyer from any and all damages and costs as finally determined by a court of competent jurisdiction in any suit for infringement of any U.S. patent (or European patent for Products that Sutron sells to Buyer for end use in a member state of the E.U.) that has issued as of the delivery date, solely by reason of the sale or normal use of any Products sold to Buyer hereunder and from reasonable expenses incurred by Buyer in defense of such suit if Sutron does not undertake the defense thereof, provided that Buyer promptly notifies Sutron of such suit and offers Sutron either (i) full and exclusive control of the defense of such suit when Products of Sutron only are involved, or (ii) the right to participate in the defense of such suit when products other than those of Sutron are also involved. Sutron’s warranty as to use patents only applies to infringement arising solely out of the inherent operation of the Products according to their applications as envisioned by Sutron’s specifications. In case the Products are in such suit held to constitute infringement and the use of the Products is enjoined, Sutron will, at its own expense and at its option, either procure for Buyer the right to continue using such Products or replace them with non-infringing products, or modify them so they become non-infringing, or remove the Products and refund the purchase price (prorated for depreciation) and the transportation costs thereof. The foregoing states the entire liability of Sutron for patent infringement by the Products. Further, to the same extent as set forth in Sutron’s above obligation to Buyer, Buyer agrees to defend, indemnify and hold harmless Sutron for patent infringement related to (a) any goods manufactured to the Buyer’s design, (b) services provided in accordance with the Buyer’s instructions, or (c) Sutron’s Products when used in combination with any other devices, parts or software not provided by Sutron hereunder.
- TRADEMARKS AND OTHER LABELS
Buyer agrees not to remove or alter any indicia of manufacturing origin or patent numbers contained on or within the Products, including without limitation the serial numbers or trademarks on nameplates or cast, molded or machined components.
All licenses to Sutron’s separately-provided software products are subject to the separate software license agreement(s) accompanying the software media or quoted by Sutron or otherwise agreed by Buyer; including but not limited to the HYDROMET CLOUD AGREEMENT / TERMS AND CONDITIONS FOR CUSTOMER LICENSE. In the absence of such terms and for all other software, Sutron grants Buyer only a personal, non-exclusive license to access and use the software provided by Sutron with Products purchased hereunder solely as necessary for Buyer to enjoy the benefit of the Products. A portion of the software may contain or consist of open source software, which Buyer may use under the terms and conditions of the specific license under which the open source software is distributed. Buyer agrees that it will be bound by any and all such license agreements. Title to software remains with the applicable licensor(s).
- NONDISCLOSURE AND NON-USE OF PROPRIETARY INFORMATION
“Proprietary Information” means any information, technical data or know-how in whatever form, including, but not limited to, documented information, machine readable or interpreted information, information contained in physical components, mask works and artwork, which Sutron considers proprietary or Proprietary, including but not limited to Sutron’s service and maintenance manuals. Buyer and its customers, employees and agents will keep confidential all such Proprietary Information obtained directly or indirectly from Sutron and will not transfer or disclose it without Sutron’s prior written consent, or use it for the manufacture, procurement, servicing or calibration of Products or any similar products, or cause such products to be manufactured, serviced or calibrated by or procured from any other source, or reproduce or otherwise appropriate it without Sutron’s prior written consent. All such Proprietary Information remains property of Sutron. No right or license is granted hereby to Buyer or its customers, employees or agents, expressly or by implication, with respect to the Proprietary Information or any patent, patent application or other proprietary right of Sutron, except for the limited use licenses implied by law.
- CHANGES AND ADDITIONAL CHARGES
Sutron reserves the right to make design changes or improvements to any products of the same general class as Products being delivered hereunder without liability or obligation to incorporate such changes, or improvements to Products ordered by Buyer unless agreed upon in writing before the Products’ delivery date. Services which must be performed as a result of any of the following conditions are subject to additional charges for labor, travel and parts: (a) equipment alterations not authorized in writing by Sutron; (b) damage resulting from improper use or handling, accident, neglect, power surge, or operation in an environment or manner in which the instrument is not designed to operate or is not in accordance with Sutron’s operating manuals; (c) the use of parts or accessories not provided by Sutron; (d) damage resulting from acts of war, terrorism or nature; (e) services outside standard business hours; (f) site prework not complete per proposal; or (g) any repairs required to ensure equipment meets manufacturer’s specifications upon activation of a service agreement.
- SITE ACCESS / PREPARATION / WORKER SAFETY / ENVIRONMENTAL COMPLIANCE
In connection with services provided by Sutron, Buyer agrees to permit prompt access to equipment. Buyer assumes full responsibility to back-up or otherwise protect its data against loss, damage or destruction before services are performed. Buyer is the operator and in full control of its premises, including those areas where Sutron employees or contractors are performing service, repair, and maintenance activities. Buyer will ensure that all necessary measures are taken for safety and security of working conditions, sites, and installations during the performance of services. Buyer is the generator of any resulting wastes, including without limitation hazardous wastes. Buyer is solely responsible to arrange for the disposal of any wastes at its own expense. Buyer will, at its own expense, provide Sutron employees and contractors working on Buyer’s premises with all information and training required under applicable safety compliance regulations and Buyer’s policies. If the instrument to be serviced is in a Confined Space, as that term is defined under OSHA regulations, Buyer is solely responsible to make it available to be serviced in an unconfined space. Sutron service technicians will not work in Confined Spaces. In the event that a Buyer requires Sutron employees or contractors to attend safety or compliance training programs provided by Buyer, Buyer will pay Sutron the standard hourly rate and expense reimbursement for such training attended. The attendance at or completion of such training does not create or expand any warranty or obligation of Sutron and does not serve to alter, amend, limit or supersede any part of this Contract.
- LIMITATIONS ON USE
Buyer will not use any Products for any purpose other than those identified in Sutron’s catalogs and literature as intended uses. Unless Sutron has advised the Buyer in writing, in no event will Buyer use any Products in drugs, food additives, food or cosmetics, or medical applications for humans or animals. In no event will Buyer use in any application any Product that requires FDA 510(k) clearance unless and only to the extent the Product has such clearance. Any warranty granted by Sutron is void if any goods covered by such warranty are used for any purpose not permitted hereunder.
- EXPORT AND IMPORT LICENSES AND COMPLIANCE WITH LAWS AND RELATED COMPANY POLICIES
Unless otherwise specified in this Contract, Buyer is responsible for obtaining any required export or import licenses. Sutron represents that all Products delivered hereunder will be produced and supplied in compliance with all applicable laws and regulations. Buyer will comply with all laws and regulations applicable to the installation or use of all Products, including applicable import and export control laws and regulations of the U.S., E.U., and any other country having proper jurisdiction, and will obtain all necessary export licenses in connection with any subsequent export, re-export, transfer and use of all Products and technology delivered hereunder. Buyer will not sell, transfer, export or re-export any Sutron Products or technology for use in activities which involve the design, development, production, use or stockpiling of nuclear, chemical or biological weapons or missiles, nor use Sutron Products or technology in any facility which engages in activities relating to such weapons. Buyer will comply with all local, national, and other laws of all jurisdictions globally relating to anti-corruption, bribery, extortion, kickbacks, or similar matters which are applicable to Buyer’s business activities in connection with this Contract, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”). Buyer agrees that no payment of money or provision of anything of value will be offered, promised, paid or transferred, directly or indirectly, by any person or entity, to any government official, government employee, or employee of any company owned in part by a government, political party, political party official, or candidate for any government office or political party office to induce such organizations or persons to use their authority or influence to obtain or retain an improper business advantage for Buyer or for Sutron, or which otherwise constitute or have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business or any improper advantage, with respect to any of Buyer’s activities related to this Contract. Sutron asks Buyer to “Speak Up!” if aware of any violation of law, regulation or our Standards of Conduct (“SOC”) in relation to this Contract. See http://danaher.com/integrity-and-compliance and www.danaherintegrity.com for a copy of the SOC and for access to our Helpline portal.
- FORCE MAJEURE
Sutron is excused from performance of its obligations under this Contract to the extent caused by acts or omissions that are beyond its control, including but not limited to Government embargoes, blockages, seizures or freeze of assets, delays or refusals to grant an export or import license or the suspension or revocation thereof, or any other acts of any Government; fires, floods, severe weather conditions, or any other acts of God; quarantines; labor strikes or lockouts; riots; strife; insurrections; civil disobedience or acts of criminals or terrorists; war; material shortages or delays in deliveries to Sutron by third parties. In the event of the existence of any force majeure circumstances, the period of time for delivery, payment terms and payments under any letters of credit will be extended for a period of time equal to the period of delay. If the force majeure circumstances extend for six months, Sutron may, at its option, terminate this Contract without penalty and without being deemed in default or in breach thereof.
- NON-ASSIGNMENT AND WAIVER
Buyer will not transfer or assign this Contract or any rights or interests hereunder without Sutron’s prior written consent. Failure of either party to insist upon strict performance of any provision of this Contract, or to exercise any right or privilege contained herein, or the waiver of any breach of the terms or conditions of this Contract will not be construed as thereafter waiving any such terms, conditions, rights, or privileges, and the same will continue and remain in force and effect as if no waiver had occurred.
- LIMITATION OF LIABILITY
None of the Sutron Indemnified Parties will be liable to Buyer under any circumstances for any special, treble, incidental or consequential damages, including without limitation, damage to or loss of property other than for the Products purchased hereunder; damages incurred in installation, repair or replacement; lost profits, revenue or opportunity; loss of use; losses resulting from or related to downtime of the products or inaccurate measurements or reporting; the cost of substitute products; or claims of Buyer’s customers for such damages, howsoever caused, and whether based on warranty, contract, and/or tort (including negligence, strict liability or otherwise). The total liability of the Sutron Indemnified Parties arising out of the performance or nonperformance hereunder or Sutron’s obligations in connection with the design, manufacture, sale, delivery, and/or use of Products will in no circumstance exceed in the aggregate a sum equal to twice the amount actually paid to Sutron for Products delivered hereunder.
- APPLICABLE LAW AND DISPUTE RESOLUTION
The construction, interpretation and performance hereof and all transactions hereunder shall be governed by the laws of the State of Virginia, without regard to its principles or laws regarding conflicts of laws. If any provision of this Contract violates any Federal, State or local statutes or regulations of any countries having jurisdiction of this transaction, or is illegal for any reason, said provision shall be self-deleting without affecting the validity of the remaining provisions. Unless otherwise specifically agreed upon in writing between Sutron and Buyer, any dispute relating to this Contract which is not resolved by the parties shall be adjudicated in order of preference by a court of competent jurisdiction (i) in the State of Virginia, U.S.A. if Buyer has minimum contacts with Virginia and the U.S., (ii) elsewhere in the U.S. if Buyer has minimum contacts with the U.S. but not Virginia, or (iii) in a neutral location if Buyer does not have minimum contacts with the United States.
- ENTIRE AGREEMENT & MODIFICATION
These Terms & Conditions of Sale constitute the entire agreement between the parties and supersede any prior agreements or representations, whether oral or written. No change to or modification of these Terms & Conditions shall be binding upon Sutron unless in a written instrument specifically referencing that it is amending these Terms & Conditions of Sale and signed by an authorized representative of Sutron. Sutron rejects any additional or inconsistent Terms & Conditions of Sale offered by Buyer at any time, whether or not such terms or conditions materially alter the Terms & Conditions herein and irrespective of Sutron’s acceptance of Buyer’s order for the described goods and services.
- WIRE TRANSFERS
Buyer and Sutron both recognize that there is a risk of wire fraud when individuals impersonating a business demand immediate payment under new wire transfer instructions. To avoid this risk, Buyer must verbally confirm any new or changed wire transfer instructions by calling Sutron at +1-703-406-2800 and speaking with Sutron’s Credit Manager before transferring any monies using the new wire instructions. Both parties agree that they will not institute wire transfer instruction changes and require immediate payment under the new instructions but will instead provide a ten (10) day grace period to verify any wire transfer instruction changes before any outstanding payments are due using the new instructions.
Hydromet Cloud Agreement / Terms and Conditions for Customer License
HYDROMET CLOUD AGREEMENT / TERMS AND CONDITIONS FOR CUSTOMER LICENSE
1. TERMS AND CONDITIONS
These “Terms and Conditions” mean collectively, the terms and conditions contained herein which form an agreement (“Agreement”) between OTT Hydromet** (“OTT Hydromet”) and Customer. Any terms and conditions originating with Customer are superseded by these Terms and Conditions and shall not be or become part of the Agreement unless specifically accepted in a writing signed by a duly authorized officer of OTT Hydromet. OTT Hydromet’s commencement of work shall not be construed as acceptance of an order from Customer containing additional or different terms and conditions. OTT Hydromet shall have no liability to Customer of any nature until Customer signs and delivers to OTT Hydromet the Service Order Form or other legally agreed and binding order.
Scope of Hydromet Cloud Services
Data Access and Storage Services. OTT Hydromet agrees to provide access to a Customer-specific web page on OTT Hydromet’s HYDROMET CLOUD web site (“Customer’s Web Page”), accessible only by OTT Hydromet and its suppliers, Customer, Customer’s Administrator and Authorized Customer Users, through which Customer Data may be accessed by Customer.
Service Levels. Subject to all limitations of liability contained herein, OTT Hydromet will endeavor to provide Customer with access to Customer’s Web Page twenty-four (24) hours a day, Monday through Sunday, excluding periods of routine planned maintenance and upgrade services (the “Routine Window”) and emergency services. Such periods are subject to change upon notice to Customer. OTT Hydromet may provide maintenance and upgrades to HYDROMET CLOUD, including Customer’s Web Page, during the Routine Window unless deferral of such maintenance or upgrades would materially and adversely affect the performance or security of HYDROMET CLOUD, OTT Hydromet’s network, data center or other customers. OTT Hydromet may endeavor to perform such maintenance or upgrades in such a manner so as to not adversely impact Customer’s use of HYDROMET CLOUD. To the extent practicable, OTT Hydromet shall notify Customer as far in advance as practicable of any maintenance or upgrades outside the Routine Window.
Data Analysis. No consulting or other services are provided by OTT Hydromet to Customer. Customer acknowledges and agrees that OTT Hydromet does not review, edit, investigate, confirm or analyze Customer Data or exercise any form of control over Customer Data other than those specific collection and storage services set forth herein.
Scope of Customer Responsibilities
Customer Administrator. Customer agrees to designate a single individual (its “Administrator”) who shall be Customer’s agent in designating those employees of Customer who may, through unique Passwords, Customer IDs or other security means, access Customer’s Web Page and Customer Data. Each Customer employee authorized to access Customer’s Web Page and to whom a unique Password or Customer ID is assigned and issued shall be an “Authorized Customer User.” The Administrator shall be responsible for the relationship between OTT Hydromet and each Authorized Customer User. Only the Administrator may contact OTT Hydromet to update Authorized Customer User profiles, approve new and close Authorized Customer User accounts. OTT Hydromet shall issue and provide to each Administrator all security certificates, passwords and Customer identifications (collectively “Passwords and Customer IDs”) for distribution to Authorized Customer Users. Customer shall keep full and accurate records of all issued, active and inactive passwords and Customer IDs. The right to use passwords or Customer IDs terminates immediately upon the earlier of termination of (a) the Agreement or (b) an Authorized Customer User authorization to access HYDROMET CLOUD. Customer is responsible for issuing, administering, updating and ensuring that proper security measures are in effect with respect to all Passwords and Customer IDs. Customer is solely responsible for monitoring, supervising and terminating, when appropriate, its Authorized Customer User access to HYDROMET CLOUD. The use of Passwords and Customer IDs constitutes acts of Customer and OTT Hydromet may rely upon the instructions, consent given and all action taken, without verifying the identity or authority of any person accessing HYDROMET CLOUD by means of such Passwords and Customer IDs. Although each Authorized Customer User is personally responsible for its use of HYDROMET CLOUD, Customer’s Web Page and Customer Data, Customer is responsible for ensuring that it’s Administrator and each Authorized Customer User is aware of and complies with this Agreement.
Customer Equipment. Certain hardware, software and telecommunications and other services and equipment (collectively “Customer Equipment”) are required to access and use HYDROMET CLOUD. Customer is responsible for obtaining, implementing and operating and maintaining all Customer Equipment and bearing all related costs and expenses. OTT Hydromet does not provide and Customer agrees it is not relying on OTT Hydromet to provide advice or other assistance in selecting and acquiring Customer Equipment necessary for Customer to access HYDROMET CLOUD. OTT Hydromet is not responsible for any change to HYDROMET CLOUD that may cause Customer Equipment to become obsolete, require modification or alteration or otherwise affect the performance of HYDROMET CLOUD.
2. LIMITED LICENSE
OTT Hydromet grants to Customer during the term hereof a simple, limited, nonexclusive, non-transferable, non-sublicensable, revocable license to access Customer’s Web Page solely through OTT Hydromet’s network, solely for (a) Customer’s internal business operations (b) accessing Customer Data retrieved from Customer’s Monitoring Sites and (c) adjusting the programming of their hydro-meteorological equipment. OTT Hydromet grants no rights other than those granted explicitly herein and reserves and retains for itself and/or its licensors all title, copyright and other proprietary rights in HYDROMET CLOUD and Customer’s Web Page, including all updates, custom modifications and derivatives, all of which shall become the property of OTT Hydromet.
Restrictions and Requirements. Customer is responsible for all activities that occur under its Authorized Customer User accounts. Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (b) prevent unauthorized access to, or use of HYDROMET CLOUD, and notify OTT Hydromet promptly of any such unauthorized use; (c) adhere to all Customer requirements set forth in the Scope of Customer Responsibilities above; and (iv) comply with all applicable local, state, federal, and other applicable laws in using HYDROMET CLOUD and, if using HYDROMET CLOUD outside of the United States, not use HYDROMET CLOUD in a manner that would violate any federal or state laws of the United States if conducted therein.
Use Guidelines. Customer shall, and shall cause its Administrative and Authorized Customer Users to, use HYDROMET CLOUD solely for its own internal business purposes as contemplated by this Agreement and not that of any third party and shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make HYDROMET CLOUD available to any third party, other than as contemplated by this Agreement; (b) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (c) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (d) send or store material containing software viruses, worms, Trojan Horses or other harmful computer code, files, scripts, agents or programs; (e) interfere with or disrupt the integrity or performance of HYDROMET CLOUD, the data contained therein or the web page of other OTT Hydromet customers; (f) attempt to gain unauthorized access to HYDROMET CLOUD, its related systems or networks or the web page or data of other OTT Hydromet customers; or (g) cause or permit the reverse engineering, disassembly or decompilation of HYDROMET CLOUD or of Customer’s Web Page. Customer shall not (h) modify, copy or create derivative works based on HYDROMET CLOUD or OTT Hydromet technology; (i) create Internet “links” to or from HYDROMET CLOUD, or “frame” or “mirror” any content forming part of HYDROMET CLOUD, other than on Customer’s own intranets or otherwise for its own internal business use for the purposes set forth in this Agreement; or (j) disassemble, reverse engineer, or decompile HYDROMET CLOUD or OTT Hydromet technology, or access it in order to (I) build a competitive product or service, (II) build a product or service using similar ideas, features, functions or graphics of the Service, or (III) copy any ideas, features, functions or graphics of HYDROMET CLOUD.
4. FEES; PAYMENTS; TAXES
Customer shall pay all Fees specified in the currency stated in the order and if none stated then in USD. Except as provided below, Fees are non-refundable. Unless otherwise arranged by express written agreement between the parties, OTT Hydromet shall invoice Customer annually in advance and Customer shall pay OTT Hydromet fees for HYDROMET CLOUD in the amount and on the following terms, free and clear of, and without any reduction for, any and all taxes (the “Fees”). Fees are due thirty (30) days from the invoice date. Delinquent payments shall bear interest at the rate of one and one half percent (1.5%) per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Payments may be applied first against interest and collection costs and then Fees. Customer agrees to pay all late charges imposed and all reasonable expenses (including attorneys’ fees) incurred by OTT Hydromet in collecting unpaid or delinquent amounts. If Customer’s account is thirty (30) or more days overdue, in additional to any of its other rights and remedies, OTT Hydromet may suspend Customer’s access to HYDROMET CLOUD without liability to Customer.
5. COMPLIANCE WITH LAWS
Customer shall conform to and comply with this Agreement and all applicable laws, rules, regulations, orders and other governmental requirements, now or hereafter in force, related to HYDROMET CLOUD and Customer’s use thereof. OTT Hydromet may, in its sole discretion, restrict, suspend, refuse access and/or terminate the access should OTT Hydromet learn of any violation of this Agreement, or any laws, rules or regulations.
6. TERM AND TERMINATION
This Agreement is effective on the date set forth in OTT Hydromet’s quotation, and shall continue for the term set forth therein. After the initial term, this Agreement shall renew on an annual basis upon an acceptable renewal exchange between the parties (e.g., quotation / purchase order), and at OTT Hydromet’s then-current applicable rates unless terminated by either party upon thirty (30) days written notice to the other party given prior to the expiration of the applicable term.
Except as otherwise provided for herein, either party may terminate this Agreement upon the material breach of the other party, if such breach remains uncured for thirty (30) days following written notice to the breaching party. The foregoing notwithstanding, OTT Hydromet may terminate immediately upon Customer’s breach of Sections 2, 3, 5, or 8 or upon Customer’s second breach of any other Section. OTT Hydromet may take other immediate protective action if Customer’s utilization of HYDROMET CLOUD or any related activities violates Sections 2, 3, 5, or 8, or any laws or regulations, including blocking and/or deleting the activities.
Upon any termination of this Agreement, all rights to access HYDROMET CLOUD and Customer’s Web Page terminate. OTT Hydromet shall have no obligation to refund to Customer any Fees and any unpaid Fees shall immediately be due and payable upon termination. OTT Hydromet may destroy all backup and stored Customer Data within thirty (30) days of the expiration or termination of this Agreement. Termination of this Agreement for cause shall not limit OTT Hydromet from pursuing other remedies available to it nor shall such termination relieve Customer of its payment obligations hereunder.
7. INTELLECTUAL PROPERY RIGHTS
HYDROMET CLOUD and the Customer’s Web Page, including all Intellectual Property Rights therein, created or developed under this Agreement are, will be and remain the sole and exclusive property of OTT Hydromet and/or its licensors or suppliers. For purposes herein, “Intellectual Property Rights” shall mean any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask-works; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) all HYDROMET CLOUD data, content, software, text, typefaces, graphics, and any other documents or information of any kind relating to HYDROMET CLOUD and Customer’s Web Page including selection and arrangement of materials therein and “look and feel” thereof (but excluding Customer Data); (e) patents, designs, algorithms and other industrial property rights; and (f) all other intellectual and industrial property rights, whether arising by operation of law, contract, license, or otherwise. Neither Customer, its employees, Administrator, Authorized Users nor agents shall assert or claim any ownership interest in HYDROMET CLOUD or Customer’s Web Page.
8. NON-DISCLOSURE OF INFORMATION
Customer Data is confidential and proprietary information to Customer. OTT Hydromet acknowledges that it will have access to Customer Data in the course of providing HYDROMET CLOUD and agrees to reasonably hold Customer Data in confidence and not to release or give access to Customer Data to any third party unless such individual or entity has a need for such knowledge to perform Services in the furtherance of this Agreement. OTT Hydromet further agrees not to make use of Customer Data for its own benefit or for the benefit of any third parties, other than for the performance of this Agreement. Notwithstanding the foregoing, OTT Hydromet may retain Customer Data for the purpose of analysis and research and to aggregate it with that of other OTT Hydromet customers for statistical analysis, trends or other industry-related purposes so long as such use does not result in the identification of Customer.
HYDROMET CLOUD technology and architecture, terms of this Agreement, and any information that comes into Customer’s possession or knowledge in connection with OTT Hydromet’s interests, including without limitation its methods, equipment, financials, or marketing and sales information (collectively “OTT Hydromet Confidential Information”) consists of confidential and proprietary information of OTT Hydromet, its affiliates, licensors, or third parties. Customer agrees to hold OTT Hydromet Confidential Information in confidence and agrees not to release such information to any individual whether employee, subcontractor or subcontractor employee, unless such individual has a need for such knowledge for the performance of this Agreement. Customer further agrees not to make use of OTT Hydromet Confidential Information for its own benefit or for the benefit of any third parties other than as specifically required in the performance of this Agreement.
The above limits on disclosure do not include information which the receiving party can prove (a) is or becomes known publicly without its fault; (b) is learned by it from a third party entitled to disclose the information; or (c) is already known to it before receipt from the disclosing party.
In the event of any breach of these confidentiality obligations, each party acknowledges that the non-breaching party would be irreparably injured and shall be entitled to seek equitable relief, including injunctive relief and specific performance, in any court of competent jurisdiction. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement. Upon termination of this Agreement, such Confidential Information shall, upon request of the party who disclosed the information, be returned thereto or permanently destroyed. The terms of this Section shall survive the termination of this Agreement.
9. REPRESENTATIONS AND WARRANTIES
OTT Hydromet warrants that HYDROMET CLOUD will be provided in a professional and workmanlike manner and will be of a quality conforming to general standards of care.
OTT HYDROMET DOES NOT GUARANTEE THE AVAILABILITY OF HYDROMET CLOUD OR THAT ACCESS WILL BE UNINTERRUPTED OR ERROR FREE. OTT HYDROMET MAY INTERRUPT, LIMIT, SUSPEND OR TERMINATE HYDROMET CLOUD FROM TIME-TO-TIME FOR MAINTENANCE, UPGRADES OR ANY REASONABLE PURPOSE PROVIDED THAT WHEN PRACTICABLE OTT HYDROMET WILL USE COMMERCIALLY REASONABLE EFFORTS TO NOTIFY CUSTOMER IN ADVANCE. CUSTOMER’S EXCLUSIVE REMEDY AND OTT HYDROMET’S ENTIRE LIABILITY FOR ANY BREACH OF THIS WARRANTY SHALL BE RE-INSTITUTION OF THE SPECIFIC NON-CONFORMING SERVICE.
OTT HYDROMET MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
Customer for itself and on behalf of its Administrator and each Authorized Customer User represents and warrants to OTT Hydromet that it, its Administrator and Authorized Customer Users shall comply with all terms and conditions and policies for use of HYDROMET CLOUD.
Customer shall and hereby agrees to defend, indemnify and hold OTT Hydromet and its affiliates, suppliers and licensors harmless from and against any and all claims, losses, damages, liabilities, obligations, judgments, causes of action, costs, charges and expenses (including without limitation, reasonable attorneys’ and consultants’ fees and such fees and penalties as any third party licensors may impose) arising out of or in connection with: (a) any breach of this Agreement by Customer and/or its Authorized Customer Users; (b) any Customer and/or Authorized User negligence, recklessness or willful misconduct; or (c) any violation of, or non-compliance with applicable laws. Customer’s obligations hereunder do not apply to the extent of damages directly caused by the gross negligence of OTT Hydromet.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL OTT HYDROMET, ITS AFFILIATES, SUPPLIERS, OR SUBCONTRACTORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, OR FOR CORRUPT OR UNAVAILABLE CUSTOMER DATA, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, AND INCURRED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, WARRANTY, TORT OR STRICT LIABILITY, EVEN IF OTT HYDROMET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING NOTWITHSTANDING, IN NO EVENT SHALL OTT HYDROMET’S LIABILITY FOR DAMAGES HEREUNDER TO CUSTOMER EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER PURSUANT TO THE APPLICABLE SERVICE ORDER UNDER THIS AGREEMENT FOR THE SIX (6) MONTH PERIOD PRIOR TO THE CLAIM GIVING RISE TO THE LIABILITY. CUSTOMER HEREBY INDEMNIFIES, HOLDS HARMLESS AND AGREES TO DEFEND OTT HYDROMET AGAINST ANY THIRD PARTY CLAIM.
THE FOREGOING LIMITATION OF LIABILITY SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE FOREGOING DISCLAIMERS AND LIMITATIONS SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
11. INITIAL DISPUTE RESOLUTION/JURY WAIVER
All disputes shall be referred to the parties’ respective representative designated by each party. If such designated representative(s) are unable to resolve the dispute within seven (7) business days, the parties shall submit the dispute to a senior executive from each party for resolution. Thereafter if the dispute remains unresolved for an additional seven (7) day period, the parties may pursue resolution through any lawful means.
(a) As between themselves, the parties are independent contractors with no authority to contract for or in any way to bind or to commit the other to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of the other.
(b) This Agreement shall be governed by the laws of the State of Virginia without giving effect to principles of conflict of laws and shall benefit and be binding upon the parties hereto and their respective successors and assigns. The parties hereby consent to jurisdiction in the State of Virginia and agree that, subject to OTT Hydromet’s right to seek equitable relief in any court of competent jurisdiction, the courts within Virginia shall have exclusive jurisdiction over any issues regarding the enforcement of this Agreement. The United Nations Convention on the International Sale of Goods shall not apply. However, if Customer acquired HYDROMET CLOUD in any country in Europe (EEA or EFTA), the laws of that country apply.
(c) Any notice given pursuant to this Agreement must be in writing and will be given by overnight courier service, personal delivery, or by United States certified mail, return receipt requested, postage prepaid, to the addresses appearing in the quotation and/or order. Notice will be deemed effective on the date delivered to the addressee as confirmed by the applicable delivery service. Either party may change its address for notice purposes by giving the other party notice of such change in accordance with this Section.
(d) The failure of either party to insist upon a strict performance of or to seek remedy of any one of the terms or conditions of this Agreement or to exercise any right, remedy or election set forth herein or permitted by law shall not constitute nor be construed as a waiver or relinquishment for the future of such term, condition, right, remedy or election, but such items shall continue and remain in force and effect. All rights or remedies specified in this Agreement and all other rights or remedies that either party may have at law, in equity or otherwise shall be distinct, separate and cumulative rights or remedies, and no one of them, whether exercised by the party seeking enforcement or not, shall be deemed to be in exclusion of any other right or remedy. Any consent, waiver or approval by either party of any act or matter must be in writing and shall apply only to the particular act or matter to which such consent or approval is given. If the whole or any part of any provision of this Agreement is void or unenforceable in any jurisdiction, the other provisions of this Agreement, and the rest of the void or unenforceable provision, will continue in force in that jurisdiction, and the validity and enforceability of that provision in any other jurisdiction will not be affected.
(e) Neither this Agreement nor any license granted hereunder may be assigned by Customer without the prior written consent of OTT Hydromet which may be withheld for any reason and any such assignment is void.
(f) The captions are for convenience and in no way define, limit or enlarge the scope of this Agreement or any of its Sections.
(g) If any provision of this Agreement or application to any party or circumstances shall be determined by any court of competent jurisdiction to be invalid and unenforceable to any extent, the remainder of this Agreement, or the application of such provisions or circumstances shall be valid and shall be enforced to the fullest extent permitted by law.
(h) OTT Hydromet shall have no liability for delays, failure in performance or damages due to fire, explosion, terrorism, lightning, power surges or failures, strikes or labor disputes, water, acts of God, the elements, war, civil disturbances, acts of civil or military authorities, inability to secure materials, transportation facilities, fuel or energy shortages, acts or omissions of communications carriers or any other causes beyond OTT Hydromet’s control.
(i) Customer agrees to comply fully with all relevant export laws and regulations of the United States, and their own country, and to assure that neither the OTT Hydromet Intellectual Property Rights nor any direct product thereof are (a) exported directly or indirectly, in violation thereof; or (b) are intended to be used for any purposes prohibited thereby.
(j) The definitions wherever located and any other provisions or terms that by their nature should survive, shall survive the expiration or termination of this Agreement.
(k) Any claim by a Customer arising out of or in connection with this Agreement shall be brought within one (1) year of the date on which the claim first arose.
(l) In dealings between OTT Hydromet and Customer, OTT Hydromet shall be entitled to rely upon any assent by a person using its assigned Password and User ID.
(m) OTT Hydromet shall have the right, upon reasonable notice to Customer and during normal business hours, to periodically conduct an audit of Customer’s usage, subject to the confidentiality provisions of this Agreement, in order to verify Customer’s compliance with this Agreement.
(n) OTT Hydromet may disclose that Customer is approved to conduct or is conducting business through HYDROMET CLOUD and may provide a brief description of Customer’s business and appropriate Customer contact information to current and potential customers, other customers, OTT Hydromet suppliers and/or in marketing and advertising material promoting OTT Hydromet and/or HYDROMET CLOUD.
(o) These Terms and Conditions constitute the entire Agreement between the parties and supersede any and all previous representations, understandings, discussions or agreements, oral or written, between Customer and OTT Hydromet. This Agreement may only be amended by an instrument in writing signed by Customer and OTT Hydromet.
** OTT Hydromet as used herein means one of the following entities from which HYDROMET CLOUD is procured by Customer, and this Agreement is only binding on such entity:
OTT Hydromet GmbH (or any subsidiary thereof)
Sutron Corporation (or any subsidiary thereof)
22400 Davis Drive
Sterling, Virginia 20164