A. O. SMITH WATER PRODUCTS COMPANY B.V.
STANDARD TERMS OF SALE
1. APPLICABLE TERMS. These Standard Terms of Sale govern all sales of goods and related services (collectively, Goods ) sold by A. O. Smith Water
Products Company B.V. ( Seller ) to any buyer ( Buyer ). These Standard Terms of Sale may be referred to in quotation, proposal or acknowledgment, as the case may be ( Seller's Documentation ). All sales of Goods are subject to, and are expressly conditioned upon these Standard Terms of Sale, whether or not these terms are included in an offer or an acceptance by Seller. Seller rejects all additional or different terms in any of Buyer's forms or documents unless specifically agreed to by Seller in writing. THESE TERMS AND CONDITIONS OF SALE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF (i) WISCONSIN IF THE PLACE OF PEFORMANCE IS IN THE U.S. OR (ii) DUTCH LAW IF THE PLACE OF PERFORMANCE IS THE NETHERLANDS OR (iii)
FRANCE IF THE PLACE OF PERFORMANCE IS FRANCE OR (IV) UNITED KINGDOM IF THE PLACE OF PERFORMANCE ANY OTHER LOCATION OTHER THAN (i), (ii),
or (iii) ( GOVERNING LAW ). THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (VIENNA CONVENTION) SHALL
NOT APPLY.
2. PAYMENT. Buyer shall pay Seller the full purchase price as set forth in Seller's Documentation within 30 days of the invoice date, without deduction or setoff. Unless Seller's Documentation provides otherwise, freight, storage, insurance and all taxes, duties or other governmental charges relating to the
Goods shall be paid by Buyer. If Seller is required to pay any such charges, Buyer shall immediately reimburse Seller. Buyer shall be charged 1% interest per month on all unpaid amounts and shall pay all of Seller's reasonable costs (including attorneys' fees) of collecting amounts due but unpaid. All orders are subject to credit approval. If Buyer is liquidated, granted or files for a moratorium on payment, declared bankrupt or files for bankruptcy, Buyer's liabilities to Seller shall become immediately due and payable.
3. DELIVERY. Time for delivery or performance shall not be of the essence and all such dates are estimates only. Delivery of the Goods shall be in material compliance with the schedule in Seller's Documentation. Unless Seller's Documentation provides otherwise, Goods shall be delivered ex-works Seller's
Loading Dock (defined in Incoterms 2010). Buyer shall inspect all Goods immediately upon delivery and report any damages or discrepancies with the order to the Seller within 2 business days from unloading. Seller reserves the right to deliver in installments, and all such installments shall be invoiced upon shipment of the first installment and paid for when due per invoice, without regard to subsequent deliveries. Each delivery is a separate contract.
Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries. Seller shall have no liability to Buyer, nor shall
Buyer have the right to terminate any order, as a result of a failure to meet the delivery date. All goods that have been delivered by Seller and are in Buyer's possession remain the property of Seller until Buyer has fully paid any outstanding amounts.
4. RISK IN AND OWNERSHIP OF GOODS. Risk of damage to or loss of the Goods shall pass to Buyer when the goods are delivered i.e despatched from
Sellers premises but Buyer title shall not pass until Seller receives from Buyer full payment in cash or cleared funds. Until title passes, Buyer must: 1) hold
Goods on Seller's behalf; 2) store them (at Buyer's cost) separately from all of Buyer's other goods so that they can be identified as Seller's property; not destroy, deface or obscure any identifying mark or packaging on the Goods. Buyer's right to possession of the Goods shall end immediately and Seller can end the Agreement if: Buyer is the subject of insolvency, administration, bankruptcy (or similar) orders, notices, proceedings, resolutions or arrangements in whatever jurisdiction. If Seller is owed any money by Buyer, Seller may (in addition to any other rights Seller may have) enter Buyer's premises on reasonÂ
able notice and inspect or repossess the Goods and Buyer grant to Seller an irrevocable licence so to do.
5. INTELLECTUAL PROPERTY. Seller expressly reserves all intellectual property rights in the Goods and business data delivered by Seller and/or provided by Seller when making the offer. Seller shall be entitled to all rights in inventions and working methods and the like made or developed by Seller in connection with an order. Seller grants Buyer a non-exclusive, non-transferable license to use any such material solely for Buyer's use of the Goods. Buyer shall not disclose any such material to third parties without Seller's prior written consent.
6. CHANGES AND RETURNS. Seller shall not implement any changes in the scope of work described in Seller's Documentation unless Buyer and Seller agree in writing to the details of the change and any resulting price, schedule or other contractual modifications. This includes any changes necessitated by a change in applicable law occurring after the effective date of any contract including these terms. Seller may accept returned Product provided any proposed return is returned within three months of delivery date. Returned Product shall be in like new condition and not removed from original packaging. Returns will be charged a 25% restocking fee.
7. WARRANTY. WARRANTIES ARE ONLY GIVEN IF AND INSOFAR AS EXPRESSLY AGREED IN WRITING AND AS INCLUDED IN THE INSTRUCTION MANUAL
APPLICABLE TO THE PARTICULAR GOOD BEING SOLD. Notwithstanding, for after sales services that are purchased, Seller warrants such services shall be performed in a competent, diligent manner in accordance with any mutually agreed specifications in writing. To the extent Buyer purchases replacement parts, Seller warrants the replacement parts shall be delivered free from defects in material, workmanship and title. The after sales service and replacement part warranties extend for a period of one year starting from the date of service or the date the replacement part is purchased. These warranties are conditioned upon proper use, installation, and maintenance of the Goods and Buyer keeping complete and accurate records of operation and maintenance during the warranty period and providing Seller with access to those records. In the event of a warranty claim for after sales services or replacement parts that meets the above conditions, at Seller's option, Seller shall either (i) re-preform such services, or (ii) refund Buyer, or (iii) replace the applicable Good. NO IMPLIED OR STATUTORY WARRANTY OR WARRANTY OF MERCHANTABILITY OR FOR A PARTICULAR PURPOSE IS GIVEN.
8. INDEMNITY. Seller shall indemnify, defend and hold Buyer harmless from any claim, cause of action or liability incurred by Buyer as a result of third party
