General terms and conditions of sale

1. Scope
1.1 All products (“Products”) and services associated with them are sold strictly pursuant to
these terms (“Agreement”). References by Buyer to its conditions of purchase shall be null and void and are hereby expressly rejected. Any modification to this Agreement requires express written approval of Block USA Inc. (“Seller”).

1.2 Acceptance by Buyer of Product(s) or services or payment for same shall constitute unequivocal acceptance of this Agreement. None of any past practice, industry standards, course of dealing or usage of trade shall constitute a modification of any term or condition contained herein, nor shall same add any term not contained herein.

2. Offer/Acceptance
2.1  Offers to sell Products and/or services by Seller are non-binding with respect to price, quantity, delivery time and possibility.

2.2  Purchase orders from Buyer shall only become binding for Seller through written confirmation from Seller to Buyer and may take the form of an invoice or a delivery note.

2.3  When Products are ordered electronically, Buyer will receive a prompt confirmation of the order. This confirmation DOES NOT in any way constitute a binding acceptance of the order.

2.4  Any alteration, addition, or change to an existing order by the Buyer must be expressly confirmed in writing by Seller in order to become effective and binding on both parties

3. Samples/Catalogues
Any figures, measurements, statements, descriptions, illustrations, photographs, drawings, or any other matters contained in the Seller’s brochures, catalogs, price lists, websites or advertising literature, or any samples provided to Buyer by Seller are not guaranteed to be accurate and are intended merely to represent a general description or depiction of the Products and shall not form part of any contract or agreement between the Seller and the Buyer, unless expressly specified and incorporated into any contract or agreement between the Parties in writing.

4.  Prices
4.1  Seller’s prices valid at the time of the written confirmation shall be the invoiced price. The invoiced price of the Products does not include duty, tariffs, taxes, packaging costs, assembly costs, freight costs or similar charges, which shall be borne by Buyer, unless otherwise agreed in writing.

4.2  Agreements regarding fixed prices must be made in writing.

4.3  The minimum value for any order is 0.

4.4  Should there be a general increase in Seller’s prices in the period between the effective date of the written confirmation and delivery, then the prices valid on the day of delivery shall be applied. In case of such a general increase in prices, Buyer may cancel this Agreement without further obligation within 15 days after the announcement of such general price increase.

5.  Payment/Taxes
5.1  Seller’s invoices are due and payable within 30 days after the date of such invoices without any deductions or offset, and payments shall be made in U.S. dollars. All prices shown are exclusive of any applicable tax and any tax that Seller is required to collect in connection with a sale shall be in addition to the quoted price and solely for Buyer’s account. All agreements between the parties concerning cash discounts must be in writing and signed by Seller. Payment shall be considered complete when Seller receives from Buyer the full invoice amount in readily available funds.

5.2  Seller reserves the right to use payments for the settlement of the oldest due invoice items plus any accrued default interest and costs and such payments shall be applied in the following order: costs, interest and outstanding balance.

5.3  The non-payment of the purchase price on the invoice due date shall be a default under this Agreement.

5.4  If in the sole judgment of Seller, Buyer’s financial ability to perform under this Agreement is diminished, then Seller shall have the right, among any other right or remedy, to change payment terms, require full or partial advance payment or to cancel any outstanding order, without liability.

5.5  In the event of a payment default by Buyer, Seller shall be entitled to receive interest on the defaulted payment at a rate equal to eighteen percent (18%) per annum or the maximum interest rate permitted by law.

5.6  Buyer may only offset claims which are undisputed or have been finally determined by a court of law or arbitral panel acting with proper jurisdiction.

5.7  Seller shall retain a security interest in Product(s) sold hereunder until all payments shall have been received in full by Seller and, if requested in writing to do so, Buyer agrees to do all acts necessary to perfect and maintain such security interest in Seller.

5.8  Buyer shall be solely responsible for any and all sales, use, value-added, excise, customs, imports or export fees or similar taxes, fees or charges of any nature required under applicable law and applicable to the Buyer’s purchase of the Products, excluding any taxes based on Seller’s income. Buyer shall indemnify, defend and hold Seller harmless from all such taxes, fees or charges. This provision shall survive the termination of this agreement. In lieu thereof, Buyer shall provide Seller with a tax-exemption certificate acceptable to the relevant taxing authorities.

6.  Delivery
6.1  The quoted price for all Products is F.O.B. Seller's principal place of business or the location of shipment, whichever is applicable, unless otherwise agreed upon in writing.

6.2  Unless otherwise specified in writing, packing shall be Seller’s standard packing.

6.3  Seller shall endeavor to punctually deliver the Products, provided, however, all specified delivery dates refer to the completion of manufacture and availability for shipment and merely represent Seller’s best estimates. Seller reserves the right to modify the delivery dates with notice to Buyer and Buyer acknowledges that fixed delivery deadlines do not exist. Buyer also acknowledges that Seller’s performance herein is subject to correct and punctual supply of Seller by its suppliers.

6.4  Buyer warrants there will be no diversion of any shipment that is (a) contrary to any applicable law, (b) for resale and/or transfer to any party to this Agreement, unless approved in writing by Seller, or (c) for shipment or use outside of the United States, unless approved in writing by Seller, and if so approved, Buyer warrants it will comply with all applicable laws, restrictions and regulations of the U.S. and other governments, including without limitation, the Export Administration Regulations, as amended, the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the Office of Foreign Asset Control Regulations.

7.  Shipping
7.1  Seller reserves the right to choose the shipping route and the mode of transport. Additional costs resulting from special shipping requests by Buyer shall be for Buyer’s account. In addition, Buyer shall be responsible for the payment of increases in freight rates, possible additional costs for diversion, storage costs etc. which occur after the sales invoice has been issued, insofar as freight-paid delivery has not previously been agreed upon by the parties.

7.2 Title passes to Buyer upon delivery to carrier (“Delivery”).

7.3  Buyer shall assert claims arising from damages in transit directly against the carrier and shall have no recourse against Seller for such damages. Choice of carrier and insurances shall be at Buyer’s discretion. Unless otherwise agreed in writing, Buyer shall be responsible for the observation of legal and official regulations relating to the import, transportation, storage and use of Products.

7.4  If Products are not shipped within thirty (30) days after notification to Buyer that they are ready for shipping, for any reason beyond Seller’s reasonable control, including Buyer’s failure to give shipping instructions, Seller may store Products at Buyer’s sole risk in a warehouse or storage facility or upon Seller’s premises and Buyer shall pay all handling, transportation and storage costs upon submission of invoices therefore.

8.  Return Policy
Seller, in its sole discretion, may permit the return of unused, resalable and originally packaged Products on a case by case basis subject to a restocking fee to be determined by Seller.

9. Products for Trial Use
Buyer is responsible for the payment of freight costs, insurance and packaging, as well as any loss in value of Products during the trial use by Buyer. Moreover Buyer shall be liable during the entire trial period and during any shipping period for any loss of or damage to Products supplied for trial use. Any products returned must be in undamaged and perfectly clean condition. Buyer shall be responsible for return shipment, packaging and insurance.

10.  Force Majeure
10.1  Neither party shall be held responsible for any loss, damage, delay or lack of delivery arising from fire; strikes, lockouts, injunction or other labor troubles, governmental intervention including, but not limited to, prohibition or extraordinary taxation upon import or export; war; riots; acts of terrorism; explosion; weather; flood; acts of God or nature; inability to obtain on terms acceptable to Seller or shortage of, fuel, power, raw materials, labor, containers or transportation; accident; breakage of machinery or other apparatus; disruption of normal supplier channels of distribution; or any other act or force beyond the affected party’s reasonable control.

10.2  If, as a result of any of the disruptions listed in Sec. 10.1 above, the delivery or acceptance of the Product is delayed by more than thirty (30) days, then either party may upon notice cancel the applicable sales contract and terminate any further obligation to the other party.

10.3  Seller reserves the right to allocate and fairly apportion Product(s) among its internal and external customers during force majeure events in any manner Seller, in its sole discretion, deems appropriate.

10.4  Seller shall have no obligation to acquire by purchase or otherwise any Product(s) that Seller is unable to supply to Buyer due to force majeure events.

11.  Limited Warranties
11.1  Seller warrants that the Products shall be free from defects in material and workmanship for a period of twelve (12) months from the date of Delivery. Seller's obligations under the aforesaid warranty shall be discounting, repairing or replacing the Products, which if properly used and maintained, prove defective in material or workmanship. Such discount, repair or replacement shall be Seller's sole obligation and Buyer's sole remedy hereunder and shall be conditioned upon (a) Buyer’s inspection of the Products within fourteen (14) days of receipt by Buyer, (b) Seller’s receipt of written notice of any alleged defect within ten (10) days after its discovery, (c) Buyer checking the measuring instruments for correct readings and adjusting them if necessary, (d) Buyer following relevant operating instructions which may be provided by Seller. Any Product repaired or replaced pursuant to this warranty will be warranted for the remainder of the original warranty period. Upon Seller’s request, Buyer shall promptly provide samples and other evidence of, and shall allow Seller’s representatives access to the alleged defective Products. Claiming an alleged defect does not relieve Buyer of any of its payment obligation to Seller. Buyer must not return any alleged defective Products without Seller’s prior written consent. Buyer agrees to reimburse Seller for all costs and expenses associated with any return of Products unauthorized by Seller. Receipt or inspection of returned Products by Seller shall not be deemed an admission of any alleged defect.

11.2  Seller’s obligations under Sec. 11.1 above shall not apply to any part of the Products sold hereunder, which (a) are consumed by normal wear and tear, (b) have a normal life time inherently shorter than the herein stated warranty period, or (c) have been damaged due to negligent or faulty use, alteration, maintenance, storage or handling by Buyer or a third party.

11.3  Any suggestions by Seller or Seller's agents regarding use, application or suitability of Products shall not be construed as an express warranty unless confirmed to be such in writing by Seller.

11.4  Buyer assumes all risk for misuse of the Products.  11.5  THE WARRANTY EXPRESSED HEREIN SHALL BE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, APPLICATION OR USE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE WHICH ARE EXPRESSLY DISCLAIMED, AND IS IN LIEU OF ANY AND ALL OTHER OBLIGATIONS OR LIABILITY ON SELLER’S PART.

12.  Limitation of Liability
12.1  NOTHWITHSTANDING ANY PROVISION IN THESE CONDITIONS OF SALE OR ELSEWHERE TO THE CONTRARY: (a) SELLER’S MAXIMUM LIABILITY HEREUNDER AT ANY TIME FOR ANY CAUSE WHATSOEVER SHALL NOT EXCEED THE PRICE PAID FOR THE PRODUCTS OR SERVICES AT ISSUE, (b) Seller SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND OR NATURE, ARISING AT ANY TIME, FROM ANY CAUSE WHATSOEVER, INCLUDING LOSS OF REVENUE OR PROFIT.

12.2  These limitations of liability shall apply notwithstanding any finding that any remedy fails its essential purpose.

13.  Proprietary Information/Confidentiality
All specifications, technical data sheets, manuals, security and safety data sheets and other information furnished by Seller to Buyer, including, but not limited to, pricing, volumes or the financial terms of this Agreement and the existence of this Agreement, are proprietary to Seller and confidential. Such information has been developed at substantial expense and contains trade secrets that are the exclusive property of Seller. Buyer may not reproduce or distribute such information except to Buyer’s employees who are required to have such information in order to perform their duties and agree, in writing, to keep such information confidential. All such information supplied by Seller shall be received in confidence except for information that (a) was generally available to Buyer from public or published sources, provided publication did not take place in violation of this Agreement or through fault or omission of Buyer, (b) was lawfully obtained from a source under no obligation of confidentiality, directly or indirectly, to either Buyer or Seller, or (c) was disclosed to the general public with the written approval of the Seller, and Buyer shall exercise due diligence and reasonable care to hold such information in confidence.

14.  Suspension and Cancellation
If Buyer omits delivery instructions or fails to accept Delivery, as required by Contract, or shall fail to make any payment when it becomes due or shall commit any other breach of contract, or if Buyer shall enter into any composition or arrangement with its creditors or if any distress or execution is levied upon any goods or property of Buyer, or if Buyer shall commit any act of bankruptcy or, if a corporation, a receiver shall be appointed of the whole or any part of its undertaking or assets or if Buyer shall pass a resolution for winding up or if a Court shall make an order to that effect or if Buyer shall have a receiving order made against it, then at Seller's sole option Seller may defer or cancel any further deliveries or services and treat the Contract or any other contract between Seller and Buyer as terminated, but such termination shall be without prejudice to Seller's right to any unpaid price for Products delivered or cost of work done under the Agreement and to damages for loss suffered in consequence of such termination.

15.  Jurisdiction
Each Party shall be deemed to have submitted to the jurisdiction of the courts (city, state and Federal) located in the County of Cook, State of Illinois, for any action, proceeding or claim brought by the other Party pursuant to this Agreement and waives any objection to the venue of any such suit, action or proceeding and the right to assert that such forum is not a convenient forums. 

16.  Governing Law
This Agreement and any sales hereunder shall be construed in accordance with and governed by the laws of the State of Illinois, without regard to its conflicts of law rules. The application of the provisions of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded.

17.  Additional Terms
17.1  This Agreement may not be assigned by either party to any other party without the prior written consent of the other party hereto; provided, however, that (a) Seller may assign its rights and obligations hereunder to any Affiliate without consent from Seller This Agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors and permitted assigns.

17.2  Seller may, but is not obligated to, insure Products sold hereunder against damage or loss during (a) transportation, and (b) if shipping is delayed by reasons beyond the reasonable control of the Seller during this delay at the expense of Buyer unless the parties have agreed otherwise. Until final payment is made Buyer shall insure such Products at its expense for the benefit of Seller against damages and loss including, but not limited to, fire and flood, and shall provide written proof thereof to Seller.

17.3  Seller  assumes no liability as to any patent or copyright infringement by virtue of the use of the Products in combination with other goods or services, or the use of the Products manufactured to Buyer’s specifications. Buyer shall not use Seller’s trademarks without Seller’s prior written consent.

17.4  The rights and obligations under Secs. 11, 12, 13, 15, 16 and 17 herein shall survive the cancellation, termination or expiration of this Agreement.

17.5  Should any part of this Agreement be deemed invalid by a court of law or arbitrator, it shall not constitute an invalidation of any other part of this Agreement, which shall otherwise remain in effect.

17.6  Failure of Seller to effect, or any delay by Seller to effect, any available right or remedy shall not be construed to operate as a waiver of same.

17.7  Except as otherwise expressly provided, this Agreement supercedes all prior agreements, understandings or otherwise, whether oral or written, between Buyer and Seller concerning the subject matter of this Agreement.

17.8  Seller’s acceptance of (a) payment, or (b) specially endorsed checks shall not waive or limit any right or remedy of Seller.

17.9  Nothing contained herein is intended nor shall be construed as creating a partnership, joint venture, agency, distributorship or any other relationship except buyer and seller.

17.10  All headings herein are for reference only.