Terms and Conditions

(version 3.0)

1. Definitions

“Terms and Conditions of Purchase”: these General Terms and Conditions of Purchase of Ross;

“Seller”:  the party from whom Ross is purchasing goods and/or services or to whom Ross is (sub)contracting work;

“Goods”:  the products or services to be supplied or the work to be performed;

“Order”: a commitment to purchase Goods given by Ross to Seller in whatever form;

“Ross”:  Ross Industries Inc., the “Buyer” hereunder;

2. General

2.1 The applicability of the Seller’s general terms and conditions is explicitly excluded.

2.2 The Terms and Conditions of Purchase apply to all legal relationships of Ross whereby Ross acts as a (potential) buyer of goods or services or as a (potential) party contracting out work. By entering into such a legal relation with Ross the Seller expressly acknowledges the applicability of these Terms and Conditions of Purchase.

2.3 Any additional or different term or condition on Seller’s acknowledgment form, or otherwise communicated by Seller in accepting this Order, shall be deemed to be a material alteration of this Order and is hereby objected to by Ross and such term or condition shall be totally inapplicable to this Order unless specifically agreed to in writing signed by an authorized representative of Ross.  Acceptance of the Goods conveyed by this Order will not constitute acceptance by Ross of Seller’s terms and conditions to the extent this Order in any way is deemed to be in acceptance of a quotation or other offer by Seller.  Any such acceptance is expressly conditioned upon the consent of the Seller to the terms and conditions of this Order.

2.4 For the purposes of these Terms and Conditions of Purchase, ‘in writing’ is also defined as: by facsimile message, e-mail, EDI, the Internet, or other electronic media.

3. Contract

3.1 All offers of the Seller are irrevocable and valid for ninety (90) calendar days, unless agreed otherwise.

3.2 Ross is entitled to terminate any negotiations at any time without giving reasons and without any obligation for compensation of any kind whatsoever.

3.3 A contract or a change therein shall take effect between Ross and the Seller only in the event that the Seller has signed the Ross order form and returned it to Ross, or when Ross has accepted an offer of the Seller in writing, or when the Seller has commenced the performance of the Goods in accordance with the Ross order form. Ross is entitled to revoke any of the Orders it has placed so long as the Seller has not signed and returned the Ross order form to Ross respectively Ross has not accepted the offer of the Seller in writing.

3.4 If Ross refers in the contract or the corresponding appendices to technical regulations, safety regulations, quality requirements or other regulations or requirements which are not appended to the contract, the Seller shall be deemed to be acquainted with their contents, unless it notifies Ross in writing to the contrary without delay. Ross shall in that case provide the Seller with further details of the said regulations or requirements.

3.5   If use is made in the performance of the contract of drawings, specifications, instructions, inspection specifications and similar documents provided by or approved by Ross, these shall form an integral part of the contract.

3.6 Variations to the work (more or less work) will be accepted by Ross only when agreed in writing with a person duly authorized by Ross.

3.7 Ross may, at any time, by a written Order make changes in the contract. If any such change causes a decrease in the cost or the time required for the performance of the purchase, an equitable adjustment shall be made in the price or delivery schedule or both.

4. Delivery time, terms of delivery and risk

4.1 Unless agreed otherwise, the Goods shall be Delivered Duty Paid (DDP, Incoterms which are applicable at the day of the contract) at the address specified by Ross. The risk in the Goods transfers according to the agreed upon Incoterm.

4.2 Agreed delivery times are regarded as firm and time is of the essence for the contract. By the mere act of exceeding the delivery time, the Seller shall be in default without further written notice. In case of late delivery Ross shall have the right to cancel the contract without any notice being required and without any liability and Ross shall be entitled to purchase the Goods elsewhere and/or hold the Seller accountable for all damages (incidental, consequential, indirect and direct damages) resulting from the delay.

4.3 If provision is made for liquidated damages on the grounds of a delayed delivery or performance, liquidated damages shall not waive Ross ’s right to claim damages or any of Ross ’s other rights under the contract, these Terms and Conditions of Purchase and the law.

4.4 If timely performance of the contract by the Seller is not possible or is in imminent danger of being delayed, the Seller shall inform Ross thereof in writing without delay.

4.5 Partial deliveries may be made by the Seller only with the prior written consent of Ross and only when this does not result in increased costs for Ross. Ross may refuse to accept partial deliveries for which no prior written consent has been given and return them for the account and risk of the Seller. Delivery earlier than agreed shall always be subject to the prior written consent of Ross and shall not result in any change in the originally agreed terms of payment or warranty period.

4.6 In the event of Ross being unable to accept the Goods at the agreed time due to force majeure, default of its customers or a delay in delivery to its customers, or non-fulfillment or cancellation of the orders by customers, then the Seller shall, at Ross ’s request, postpone the Goods, without additional costs for Ross, for a reasonable period of time determined by Ross.

5. Packaging and transport

5.1 Any special requirements set by Ross in respect of packaging, transport and/or security shall, provided that they are notified in a timely manner, be duly observed by the Seller. Ross is entitled to return the Goods to the Seller, for the account and risk of the Seller, in the event of failure to comply with the above-mentioned requirements and provisions.

5.2 The Seller undertakes to take back, at Ross ’s request and for the account and risk of the Seller, the packaging materials used by the Seller. Ross is also entitled to return such packaging materials to the Seller for the account of the Seller. Loan packaging provided by Ross shall be looked after with due diligence and insured by the Seller and, if requested, returned to Ross at no charge.

6. Inspection, testing, Acceptance of Goods

6.1 All Goods ordered hereunder will be subject to inspection and tests by Ross to the extent practicable at all times and places, including the place of manufacturer and in any event prior to acceptance.

6.2 Goods will be subject to final inspection/tests and acceptance by Ross after delivery to Ross and installation and commissioning of the Goods.  Ross shall have at least thirty (30) days after the actual installation and commissioning of the Goods within which to inspect/test the Goods.  It is expressly agreed that i) inspection/testing and/or payment prior to the delivery or installation and/or commissioning, or ii) any kind of acceptance before delivery, installation and/or commissioning, will not constitute a final acceptance.  If the Goods delivered do not meet the requirements of this Order, Ross shall have the right to reject such Goods.  Acceptance of any Goods shall not constitute a waiver of any warranty made by Seller hereunder or applied by law, including any latent defects or fraud.

6.3 Seller agrees to permit access to Seller’s facilities at all reasonable times for inspection and tests of Goods by Ross ’s agents or employees and will provide all tools, facilities, and assistance reasonably necessary for such inspection and tests as described in Article 6.1 and 6.2 at no additional cost to Ross.

7. Prices

7.1 The prices are firm, exclusive of VAT, and based on delivery in accordance with the agreed Incoterm.

7.2 Additional costs which have not been explicitly accepted in writing by Ross prior to delivery are not eligible for payment.

7.3 Seller warrants that the price charged for Goods offered will be as low as the lowest price charged by the Seller to any customer purchasing similar goods or services in the same or similar quantities under like circumstances.

8. Payment

8.1 The Seller shall send itemized invoices to Ross within ten (10) days after delivery or acceptance.

8.2 Payment shall be made within thirty (30) days after receipt of the invoice by Ross and receipt and acceptance of the Goods by Ross unless agreed upon in writing. In case of defects or otherwise non-conforming Goods Ross can defer its payment obligations.

8.3 Payment by Ross does not imply acknowledgement by Ross that the Goods comply with the contract.

8.4 If Ross does not make the contractual payments on time, written notice of default must be sent to Ross.

8.5 Ross is entitled to set-off valid claims in money terms received from the Seller against its own claims, or the claims of Ross ’s affiliated companies, which it has towards the Seller.

9. Warranty

9.1 Seller is responsible for ascertaining exactly what is required for the Goods, failing which he shall be deemed to be acquainted with (a) the purpose for which the Goods are intended, and (b) the circumstances in which the delivery and installation of the Goods are to be made.

9.2 The Seller warrants that:

(a) the Goods are complete, merchantable and suitable for the purpose for which they are intended;

(b) the Goods are fully in accordance with the written requirements as set forth in the contract, specifications, drawings, calculations and/or other documents provided by Ross;

(c) the Goods are brand new and of a good quality and free from defects in the design, workmanship and/or materials, and that new materials and skilled personnel are used for the performance of activities forming part of the Goods;

(d) it shall transfer full title in the Goods and the Goods are unencumbered and free from all liens of any third party;

(e) Seller, in fulfilling this Order, has fully complied with the laws applicable in the United States

(f) the Goods delivered will meet all applicable safety regulations and other regulations applicable in the USA, the European Union and the place where the Goods will be used.

9.3 The Seller warrants that the Goods do not infringe any rights of third parties, including intellectual and industrial property rights and know-how, and indemnifies and holds harmless Ross from all claims whatsoever.

9.4 The Seller warrants that spare parts of the Goods and the maintenance required to keep the Goods in good condition may be acquired from the Seller by Ross   for a period of ten (10) years after delivery of the Goods, at the ruling market prices.

10. Warranty period/repair of defects

10.1 Defects which are discovered during a period of 24 months after delivery, or, in the event that Ross and the Seller have agreed on an acceptance test, twenty-four (24) months after acceptance by Ross, shall be finally remedied by the Seller in accordance with the provisions of this Article 10.

10.2 In the event of repair or replacement during the warranty period, a new warranty period shall be established for the repaired or replaced items and for all other items which were unusable as a result of the defect, and this new warranty period shall become effective from the time of commissioning or putting into service after repair or replacement.

10.3 The Seller is obliged to remedy defects at the earliest opportunity, and at all events within a reasonable term set by Ross, by means of repair or replacement, at Ross ’s discretion, at the location designated by Ross, unless Ross indicates that it will affect the repair or replacement itself or that the end user of the Goods will affect the repair or replacement itself, in which cases all the provisions of Article 10.4 and 10.6 shall remain in force.

10.4 The Seller shall bear all the costs incurred to remedy the defects under warranty or on account of non-conformity, including, but not limited to, costs of materials, transport costs, accommodation and traveling expenses, installation and dismantling costs, and all other labor charges.

10.5 If the Seller fails properly to fulfill this repair obligation and/or fails to complete it within the set term, as well as in urgent cases, Ross shall have the right to carry out the necessary repairs, or have them carried out by third parties, for the account and risk of the Seller, and Ross shall notify the Seller thereof as soon as possible.

10.6 The ownership and risk of the replaced items lies with the Seller from the time of replacement. The Seller shall collect these items, or have them collected, without delay, unless Ross makes a request to keep these items for investigation.

10.7 The Seller is aware that Ross consigns the Goods to its clients all over the world. This does not invalidate a claim by Ross under warranty or on account of non-conformity, and the Seller shall in that case remedy the defects in accordance with the provisions of this Article. Ross is also entitled to assign the warranty rights to its clients.

10.8 The provisions of this Article do not exempt the Seller from its liability under the law and are not meant to limit in any way Ross its rights under the law.

11. Complaints, indemnity, liens and performance

11.1 Ross is not bound to examine the supplied/installed Goods at the time of delivery. Ross will notify the Seller of a complaint in writing (submitted by mail, courier, fax or email) within thirty (30) days after the discovery of the defect or non-conformity. The Seller shall in that case remedy the defects within a reasonable term set by Ross, in accordance with the provisions of Article 10.

11.2 The Seller agrees to indemnify and hold harmless Ross from and against all losses, claims, actions, damages (direct, indirect, consequential and/or incidental) or liabilities or expenses (including court fees, attorney fees and or other expenses incurred) arising out of or related to any alleged defect in the Goods or any violation by Seller of any of its obligations described in the contract and these Terms and Conditions of Purchase and the law.

11.3 If the contract covers the performance of work for Ross upon property owned or controlled by Ross, Seller agrees not to, and waives any right to, file any lien against such property.

11.4 If Seller delivers defective Goods or does not fulfill any of its obligations arising out of the contract or these Terms and Conditions of Purchase, Seller shall at Ross ’s request, at all times be obligated to deliver confirming Goods and remedy said violation of its obligations.  This leaves unimpaired all Ross its other rights under the contract, these Terms and Conditions of Purchase and the law.

12. Insurance

The Seller shall carry adequate insurance for any liabilities arising both from its legal relationship with Ross and under the law. On first request, Ross shall be allowed to inspect the insurance policies taken out for this purpose. Further on first request Ross shall be named on the insurance policy as insured party.

13. Industrial/intellectual property rights – confidentiality

13.1 All (intellectual/industrial) property rights to the Goods, drawings, specifications, manuals, documentation, samples, software, etc. provided by Ross to the Seller, or produced by the Seller as a part of the contract, reside with or accrue fully to Ross. Ross is not obliged to pay a separate consideration for these rights and may dispose of them at its will. The Seller shall lend its cooperation in the realization of any and all necessary deeds of transfer and/or registration (amongst other things, with regard to intellectual/industrial property rights) and herewith, additionally, gives Ross an irrevocable power of attorney to draw up and sign such deeds on behalf of the Seller. Seller hereby waives any “moral rights” it may have with respect to the Goods.

13.2 If the Goods consists of the design/modification of software, the Seller shall, on first request of Ross, hand to Ross at no charge the object code, the source code and all documentation associated therewith. All this shall be provided in such a fashion that Ross can make effective and immediate use thereof without any further work or cost on the part of Ross.

13.3 The Seller has an obligation of secrecy vis-à-vis third parties with regard to (a) all data/information/items/rights referred to in Article 13.1 and 13.2, and (b) all other data/information/items/rights concerning Ross , its customers, its business associates or the Goods, provided by Ross  or which become known to the Seller in any other way, and to use such confided facts only in the performance of the contract, and the Seller shall make no copies thereof without the written consent of Ross . The Seller shall also impose this obligation on all its subordinates and non-subordinates that become acquainted with the said confided facts and is responsible for ensuring that these obligations are duly observed. If no contract is concluded, or in the event that a contract is terminated or expires, the Seller shall return to Ross forthwith, for its own account, everything it has received from Ross.

13.4 All Orders placed by Ross are confidential and shall not be made public by the Seller for publicity or sales promotion purposes, unless agreed otherwise in writing.

14. Suspension and termination

14.1 In the event of the Seller’s failure to fulfill its obligations under the contract, or in the event of bankruptcy or temporary suspension of payments, or liquidation of the Seller’s business, or the stoppage or hindrance of work caused by industrial dispute, Ross  shall have the right to suspend its obligations or to cancel the contract either in whole or in part, without any further notice of default, without any obligation for compensation of any kind whatsoever and without prejudice to all other rights and remedies of Ross .

14.2 Without prejudice to the provisions of the previous paragraph, Ross is entitled to terminate the contract, either in whole or in part, at any time. In such case, Ross shall reimburse the Seller only for the costs incurred prior to the termination of the contract.

14.3 If Ross is of the opinion that there is sufficient and strong justification for believing that the Seller will not fulfill its obligations towards Ross properly and/or in a timely manner, the Seller shall in that case be obliged, on the first request of Ross, forthwith to give sufficient guarantee, in the form required by Ross, for the performance and fulfillment of all its obligations.

14.4 All rights and claims that Ross might have or acquire against the Seller in such cases as described in Article 14.1 and 14.3 shall immediately become due and payable in full.

15. Force majeure

15.1 In the event of force majeure situation (being all events beyond the reasonable control of the party affected which render absolutely impossible, either permanently or temporarily, the fulfillment of any of its obligations), the Seller shall be entitled to suspend performance of the contract for a reasonable term not exceeding four (4) weeks, subject to the condition that the Seller immediately notifies Ross  thereof after the circumstances resulting in force majeure have occurred and stating the cause of the force majeure. If the Seller is unable to honor its obligations under the contract after the end of the said four (4) weeks, Ross shall be entitled to cancel the contract, without any obligation for compensation of any kind whatsoever or payment of costs.

In the event of a continuing force majeure event, the Seller is obliged immediately to notify Ross thereof and Ross is entitled immediately to cancel the contract, without any obligation for compensation of any kind whatsoever or payment of costs.

15.2 Indicatively but not restrictively, the following events shall always be the responsibility of the Seller: industrial dispute, labor lockout, labor shortage, sickness, shortage of raw materials, transport problems, non-performance of obligations by sub-Sellers, and breakdowns in the Seller’s production.

16. Assignment and pledging

The Seller is not entitled to assign the performance of the contract or any part thereof to third parties, or to cede or pledge to third parties any rights or claims that the Seller may have against Ross under the contract, without the written consent of Ross.

17. Other provisions

17.1 Should individual provisions of these Terms and Conditions of Purchase be invalid, void, or unenforceable in whole or in part, this shall not affect the remaining provisions that shall remain in force. In such cases, the parties to the contract undertake to agree to replace the said provisions with provisions that achieve as far as possible the aim and meaning intended by the invalid, void, or unenforceable provisions.

17.2 If parties do not enter into an agreement and after termination, dissolution or nullification of the agreement for whatever reason, these Terms and Conditions of Purchase continue to apply insofar as they have independent significance and/or insofar as required for the regulation of the consequences of the termination, dissolution or nullification, including but not limited to the articles 13, 17, 18 and 19.

17.3 This document and the written Order given by Ross shall constitute the entire agreement between the Parties.  No modification can be made unless it is in writing and signed by both parties.

18. Applicable law and jurisdiction

All legal relationships between Ross and the Seller are governed and will be interpreted solely in accordance with the laws of Virginia, USA.  Seller and Ross agree that exclusive jurisdiction and venue for any cause of action arising out of or related to this agreement in any way shall lie solely in the Circuit Court of Fauquier County, Virginia, USA.

19 Amendments and Waiver

The terms and conditions set forth herein may be amended or waived only in writing signed by authorized representatives of both parties.  No waiver of any term or condition shall be construed as a waiver of any other term or condition, nor as a waiver of any subsequent breach of the same term or condition.

Version 1.0 (13092007) 1/5/2017
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