GENERAL TERMS & CONDITIONS

2. Taxes, Fees and Duties: Any applicable taxes, fees and duties shall be paid by Buyer, either directly or by reimbursement to DESTACO. Any claim for exemption by Buyer shall, if applicable, be effective only after receipt of proper exemption forms by DESTACO, but in no event after delivery or performance.

3. Cancellation by DESTACO; Rescheduling. DESTACO reserves the right to cancel any orders placed by Buyer, or to refuse or delay shipment thereof, if Buyer (a) fails to make any payment as provided in the Contract or under the terms of payment set forth in any invoice or otherwise agreed to by DESTACO and Buyer, (b) fails to meet reasonable credit or financial requirements established by DESTACO, including any limitations on allowable credit, or (c) otherwise fails to comply with the Contract.

4. Shipment and Delivery: All quoted delivery dates are estimates only. Unless otherwise agreed in writing between the parties, any Products shall be delivered EXW (Incoterms 2020) DESTACO’s facility. If Products are delivered EXW, DESTACO shall provide written notice to Buyer that the Products are available for shipping at the delivery point (the “Availability Notice”); Buyer shall take delivery of the Products within seven (7) days of DESTACO’s Availability Notice. If for any reason Buyer fails to accept delivery of any of the Products on the date fixed pursuant to the Availability Notice, or if DESTACO is unable to deliver the Products to the delivery point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to Buyer; (ii) the Products shall be deemed to have been delivered; and (iii) DESTACO, at its option, may store the Products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). DESTACO shall use reasonable efforts to comply with the delivery date specified herein (if any), but any such date is an estimate only, unless otherwise agreed in writing by the parties.

All Products shall be packaged and packed for shipment in accordance with appropriate commercial practices. Claims for shortages and other error in delivery must be made in writing to DESTACO within ten (10) days after the carrier designated by Buyer delivers the Products to the location specified by Buyer to carrier and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer.

DESTACO reserves the right to make delivery in installments, unless otherwise expressly agreed to in the Contract; all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of Buyer’s obligations to accept remaining deliveries.

5. Terms of Payment: Unless specified otherwise by DESTACO, all Products and/or Services shall be invoiced upon delivery to Buyer or upon completion of performance. Payment of the amount specified in the invoice shall be due within thirty (30) days from the date of invoice and shall be subject to interest on the unpaid balance at the maximum rate permitted by law. Buyer shall make all payments hereunder in U.S. dollars, and all payments are nonrefundable. Buyer shall reimburse DESTACO for all collection costs, court costs, administration costs, investigation costs, attorneys’ fees and all other incidental costs, charges or expenses incurred in the collection of past due amounts or otherwise resulting or arising from any breach by Buyer of the Contract. In addition to all other remedies available under the Contract or at law (which DESTACO does not waive by the exercise of any rights under the Contract), DESTACO shall be entitled to suspend the delivery of any Products or provision of any Services, under this or any other Contract between the parties, if Buyer fails to pay any amount when due hereunder and such failure continues for five (5) days following written notice thereof. Buyer shall not withhold payment of any amount due and payable by reason of any set-off of any claim or dispute with DESTACO, whether relating to DESTACO’s breach, bankruptcy or otherwise.

Unless otherwise specified or required by law, all prices will be quoted and billed exclusive of customs, duties or taxes, and Buyer shall be responsible for all such applicable duties and taxes (exclusive of taxes on DESTACO’s income). If exemption from such taxes is claimed, Buyer must provide a certificate of exemption at the time its order is submitted to DESTACO, and Buyer will indemnify DESTACO for any unpaid taxes, as well as any penalties and interest, in the event such exemption is not valid or applicable.

6. Limited Warranty:

(a) New Products: DESTACO warrants that new Products delivered under the Contract shall be free from material defects in materials and workmanship and that Services provided under this Contract shall be performed in a workmanlike manner and according to industry standards, and DESTACO will, at its option, repair, correct or replace any Product and/or Service which violates this warranty, provided that DESTACO is given written notice of any such defect no later than twelve (12) months after installation of the Products/performance of the Services or eighteen (18) months after shipment from DESTACO’s facility, whichever is earlier. DESTACO may, at its option, participate in the defect investigation of the Product and/or Service at the installation site or require the return of the Products to its designated facility, and DESTACO may repair, correct or replace the defective Product and/or Service at the installation site or at its designated facility. Repair, correction or replacement in the manner provided above shall constitute fulfillment of all DESTACO’s obligations under this limited warranty. This limited warranty shall not apply to any equipment or parts which have been subjected to accident, misuse or unauthorized alteration, to normal wear (which includes components with innate limited life) or to defects caused by not complying with DESTACO’s installation and service requirements.

The remedies set forth above shall be Buyer’s sole and exclusive remedy and DESTACO’s entire liability of any breach of the limited warranty set forth in this section 6(a). DESTACO makes no other warranties, whether express, statutory or implied, with respect to Products and/or Services including without limitation any warranty of merchantability, fitness for a particular purpose, non-infringement or other warranty of quality.

Products manufactured or Services performed by a third party (“Third Party Product”) may constitute, contain, be contained in, be incorporated into, attached to or packaged together with, the Products and/or Services. Third Party Products are not covered by the warranty in this section 6(a). Any warranties made or given by such third parties for the Third Party Products which are assignable by their terms are hereby assigned to Buyer. For the avoidance of doubt, DESTACO makes no representations or warranties with respect to any third party product, including any (i) warranty of merchantability, (ii) warranty of fitness for a particular purpose, (iii) warranty of title, or (iv) warranty against infringement of intellectual property rights of a third party, whether express of implied by law, course of dealing, course of performance, usage of trade or otherwise.

(b) Repaired Products: Repairs, for which Buyer has paid a fee, will be warranted as set forth in section 6(a) for a period of ninety (90) days from shipment or performance date. Warranty for paid repairs are exclusively limited to repaired or replaced material and/or workmanship specific to the repairs performed, and does not extend the warranty of the repaired Product and/or Services. With the exception of the warranty period and specific coverage as defined in this section 6(b), all other warranty terms shall apply as defined in section 6(a). Buyer acknowledges and agrees that repairs to any Products and/or Services not covered by a limited warranty under this section 6, including any shipping charges, will be at Buyer’s sole cost. If the Product and/or Service is outside of the warranty period, it may be determined that an initial evaluation fee is required to proceed with the failure analysis. An estimate to complete the repair (if additional time is required) will be provided at the conclusion of the evaluation effort. While it is possible that the Product and/or Service may be repaired during that evaluation, it is also possible that it may be deemed ‘un-repairable’ based on its condition.

(c) EXCEPT AS EXPRESSLY SET FORTH HEREIN, DESTACO MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR ANY OTHER MATTER WITH RESPECT TO THE GOODS OR SERVICES.

7. Intellectual Property Rights: All intellectual property rights in, or relating to, the Products and/or Services are owned by or licensed to DESTACO and nothing herein shall have the effect of transferring the ownership of such intellectual property rights to Buyer. To the extent that Buyer acquires any right, title or interest in or to any intellectual property rights in the Products and/or Services, Buyer hereby irrevocably assigns to DESTACO its entire right, title and interest therein. Buyer further agrees to execute any and all documents that may be reasonably necessary to convey all right, title and interest in and to such intellectual property rights to DESTACO.

In the event of any third party demand, claim or action alleging that the proper use of the Products and/or Services by Buyer in accordance with the Contract and/or any instructions and directions issued with or in relation to such Products and/or Services by DESTACO infringes any patent or other intellectual property right belonging to a third party, Buyer shall: (i) promptly notify DESTACO in writing of such claim; (ii) not make any admission in relation to or attempt to settle or compromise the claim; (iii) give DESTACO express authority to conduct all negotiations and litigation, and to settle all litigation, arising from such claim; and (iv) provide DESTACO with all available information, documents and assistance as DESTACO may reasonably require, including without limitation ceasing to use the Products and/or Services if deemed reasonably necessary by DESTACO until the infringement claim is resolved. DESTACO may also, at any time, at its option: (i) procure for Buyer the right to continue to use the Products and/or Services in question, free of any liability for such infringement; or (ii) direct Buyer to cease use of and not market or sell such Products and/or Services and (a) modify the Products and/or Services in question so that they become non-infringing; (b) substitute the Products and/or Services in question with functionally equivalent non-infringing Products and/or Services; or (c) refund the price paid by Buyer for the infringing Products and/or Services. This section states the entire liability of DESTACO for any infringement of third party intellectual property rights.

Buyer shall indemnify DESTACO from and against all losses, damages, costs, liabilities and expenses (including legal expenses) arising out of or in connection with any third party demand, claim of action alleging that any product manufactured of service provided by DESTACO in accordance with designs and or specifications provided to DESTACO by Buyer infringes any patent of other intellectual property right belonging to a third party.

8. Confidential Information: Buyer shall keep in strict confidence all information which is of a confidential nature (including any technical or commercial know-how, specifications, inventions, processes or initiatives) and has been disclosed to Buyer by DESTACO, its employees, agents or subcontractors, and any other confidential information concerning DESTACO’s business or its products or its services which Buyer may obtain. Buyer shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Buyer’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind Buyer. Buyer shall remain liable for a breach of such obligations by Buyer’s employees, agents and subcontractors. Buyer shall only use or make copies of confidential information (including any reproductions, extracts or analyses of that confidential information) in connection with and to the extent necessary for the purposes of the Contract.

Certain information provided to Buyer may be subject to export controls identified in the EAR (Export Administration Regulations) administered by the U.S. Department of Commerce and/or ITAR (International Traffic in Arms Regulations) administered by the U.S. Department of State. Export controls apply to hardware and technical data (including, but not limited to, drawings, specifications, source control documents, etc). Release of this information to foreign nationals is governed by U.S. law and may require a license or other documentation. Buyer agrees to comply with all applicable laws and to direct its representatives to comply with all applicable laws, including EAR and ITAR, with respect to all information provided to it and its representatives by DESTACO and its representatives.

Buyer shall indemnify DESTACO from all claims, asserted against DESTACO by authorities and other third parties for failure to comply with export control regulations to their full extent and is obliged to compensate for all damages and costs incurred by DESTACO in connection therewith.

9. Force Majeure: Force majeure shall be circumstances which are beyond the control of the Parties.

Events of force majeure shall entitle DESTACO -also within a period of delay- to postpone delivery for the duration of the obstruction and a reasonable starting period or to cancel the Contract, in whole or in part, regarding the portion not yet completed if the events of force majeure are apparently not of a temporary nature only. Force majeure is equal to strikes, lock-outs, war, blockades, export and import bans, shortage of raw materials, fire, attacks on our IT systems, despite the usual care of appropriate safeguard precautions, denial of official permits, other acts or omissions of authorities or embargos or other sanctions, traffic stoppages affecting the plant of DESTACO or that of any of its suppliers or subcontractors unless they are beyond DESTACO’s, the supplier’s or subcontractor’s control, transport disruptions, natural disasters or other circumstances beyond the control of DESTACO insofar as they were not foreseeable by DESTACO and make delivery unreasonably difficult or impossible for DESTACO.

The party affected by a force majeure shall promptly advise the other party about such an occurrence and its corresponding obligation.

10. Limitation of Liability: DESTACO’S LIABILITY WITH RESPECT TO THE GOODS AND SERVICES PROVIDED HEREUNDER SHALL BE LIMITED TO THE AMOUNT RECEIVED BY DESTACO FOR THE GOODS OR SERVICES GIVING RISE TO ANY CLAIM HEREUNDER. DESTACO SHALL NOT BE SUBJECT TO AND EXPRESSLY DISCLAIMS ALL INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, INCIDENTAL AND CONTINGENT DAMAGES WHATSOEVER RESULTING FROM DESTACO’S PERFORMANCE OR FAILURE TO PERFORM UNDER THE CONTRACT OR THE FURNISHING, PERFORMANCE OR USE OF ANY GOODS SOLD OR SERVICES RENDERED PURSUANT HERETO, WHETHER DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, PRODUCT LIABILITY, THE NEGLIGENCE OF DESTACO OR OTHERWISE, AND WHETHER OR NOT SUCH LOSS WAS FORESEEABLE OR WHETHER BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In any event, the liability of DESTACO to Buyer, whether in contract, tort (including negligence) under any warranty or otherwise, is exclusively limited to the remedies expressly provided under the terms of the Contract, in lieu of any and all other remedies at law or in equity, and shall be Buyer’s sole remedy. This limitation on liability shall survive failure of any essential purpose.

11. Indemnity: Except as otherwise provided or limited in the contract, Buyer shall indemnify and hold harmless DESTACO against any and all losses, damages and expenses (including attorney’s fees and other costs of defending any action) that it may sustain or incur as a result of the use, operation or possession of the Products and/or Services by Buyer or its affiliates, directors, employees, agents or representatives, the negligent or willful act or negligent or willful omission of Buyer or its affiliates, directors, employees, agents or representatives or the alteration or modification of the Products and/or Services or the use or combination of the Products and/or Services with other products, devices or services by Buyer or its affiliates, directors, employees, agents or representatives.

12. Security Interest: As collateral security for the payment of the purchase price of the Products and/or Services, Buyer hereby grants to DESTACO a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Products sold hereunder, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. Buyer authorizes DESTACO to take all actions necessary to perfect and/or enforce such security interests, including, but not limited to, the filing of any financing statement in accordance with the Uniform Commercial Code or other applicable law. Default in payment of such price or any part of the obligations when due shall permit DESTACO, in its sole discretion, to declare all obligations of Buyer immediately due and payable, and in such event, DESTACO shall have all the rights and remedies of a secured party under applicable law. In connection with the security interest granted herein, DESTACO is expressly authorized, at its discretion, to file one or more financing statements or other notices under applicable law naming Buyer as debtor and DESTACO as secured party. Buyer will execute such documents requested by DESTACO to record and otherwise perfect this security interest. The security interest granted under this section constitutes a purchase money security interest under the applicable Uniform Commercial Code.

13. Applicable Laws: In performing its obligations and exercising its rights under the Contract, Buyer shall, at all times, act ethically and in compliance with all applicable laws of the United States and any jurisdiction in which Buyer is established or conducts operations relating to the Contract, including (without limitation) any applicable laws in force from time to time regarding bribery, fraudulent acts, corrupt practices and/or money laundering and any applicable laws in force from time to time regarding import/export regulations, tax and/or customs and duties (the “Import/Export Legislation”).

Any orders for Products to be exported from the U.S. shall be accepted subject to U.S. Government approval for export where applicable. Buyer expressly acknowledges that a Product (including any technical information related to such Product) may also be subject to the Import/Export Legislation of the country into which the Product is sold, and the Buyer shall abide by such Import/Export Legislation. Buyer shall ensure that the Products (including any technical information related to such Product), and any other products or technology acquired from DESTACO under the Contract, will not be exported, sold, diverted, transferred or otherwise disposed of in violation of the Import/Export Legislation, either in their original form or after being incorporated into other products or as part of a resale by Buyer.

14. Data Security: Buyer shall fully comply with the data protection and privacy legislation in all relevant countries and shall ensure that its employees, agents and contractors observe the provisions of that legislation. Buyer represents that it has developed and implemented and covenants that it will maintain effective information security policies and procedures that include administrative, technical and physical safeguards designed to (i) ensure the confidentiality, security, integrity and availability of DESTACO’s confidential information provided hereunder; (ii) protect against anticipated threats or hazards to the confidentiality, security, integrity and availability of such information; (iii) protect against unauthorized access or use of such information; and (iv) ensure the proper disposal of such information. Buyer shall promptly notify DESTACO of any breach of confidentiality by Buyer or any of its agents, disclosure of DESTACO’s confidential information by Buyer or one of its agents or a breach of Buyer’s information security policies or procedures. Notice shall be provided to DESTACO no later than twenty-four (24) hours upon discovery of breach.

15. Nonsolicitation: Beginning on the effective date of the Contract and continuing until the date that is one (1) year after the date of the last purchase order submitted by Buyer to DESTACO, Buyer shall not directly or indirectly solicit for employment or hire any employee of DESTACO with whom Buyer has had contact or who became known to Buyer in connection with the Contract.

16. Governing Law/Venue: The Contract shall be governed by and be construed in accordance with the laws of the State of Delaware, without giving effect to any choice of law rules. To the extent applicable, each party expressly consents to the exclusive jurisdiction of the federal, state and local courts in the State of Delaware, to govern all disputes arising out of the Contract.

17. Termination: Upon a material breach of the Contract, in addition to any remedies that may be provided under the Contract, DESTACO reserves the right to suspend fulfillment of or terminate the Contract, or any part thereof, and any other outstanding contracts with immediate effect upon written notice to Buyer.

18. Survival: Sections 5 through 8, 10 through 12, 14 through 16, 18 and 21 will survive the expiration or earlier termination of the Contract, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination.

19. Assignment: Buyer may not assign the Contract or any part thereof without DESTACO’s prior written consent.

20. Modification; Waiver: DESTACO may amend or modify these Terms from time to time in its sole discretion upon written notice to Buyer. DESTACO shall not be deemed to have waived any of its rights, powers, or remedies under these Terms, or at law or in equity unless such waiver is in writing and is executed. No delay or omission by DESTACO in exercising any right, power, or remedy shall operate as a waiver thereof or of any other right, power, or remedy. No waiver by DESTACO of any default shall operate as a waiver of any other default, or of the same default or another occasion.

21. Severability: If any provisions of the Contract shall be deemed illegal or unenforceable, such illegality or unenforceability shall not affect the validity and enforceability of any legal and enforceable provisions hereof which shall be construed as if such illegal and unenforceable provision or provisions had not been inserted herein, unless such illegality or unenforceability shall destroy the underlying business purpose of the Contract.

22. 2024 flow-down language for Dover Corporation federal contractors: DESTACO and any of its covered subcontractors shall abide by the Equal Employment Opportunity Clause of Executive Order 11246 and the implementing rules and regulation of the Office of Federal Contract Compliance including the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin, or for inquiring about, discussing, or disclosing information about compensation. These regulations require affirmative action by covered prime contractors and subcontractors to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. Likewise, when applicable, DESTACO and/or its covered subcontractors agrees to comply with the provisions of 29 CFR Part 471, Appendix A to Subpart A. DESTACO does not and will not maintain or provide for its employees any segregated facilities or permit its employees to perform services at locations where segregated facilities are maintained, as required by 41 CFR 60-1.8.

Last updated 2.8.24