TERMS AND CONDITIONS OF SALE AND PERFORMANCE OF
SERVICES GTECHS DYNAMIC SOLUTIONS S DE RL DE CV.
1. Formation of
Contract.
These General Terms and Conditions of Sale and
Performance of Services (these “Terms & Conditions”) shall control the
purchase of testing and other services (the “Work”) from GTECHs Dynamic
Solutions S de RL de CV or its subsidiaries (“GTECHs Dynamic Solutions S de RL
de CV”). The person purchasing the Work (“Customer”) accepts these Terms &
Conditions by submitting a request, order, and/or sample for the Work to be
performed by GTECHs Dynamic Solutions S de RL de CV. Each and every submission
by Customer of a request, order, or sample for Work is subject to GTECHs
Dynamic Solutions S de RL de CV’s acceptance. The Customer’s submission of a
request, order, or sample to GTECHs Dynamic Solutions S de RL de CV for Work
shall, upon acceptance of such request, order, or sample by GTECHs Dynamic
Solutions S de RL de CV, constitute an express contract of which these Terms
& Conditions are a material part (the “Contract”). No custom, trade, usage,
course of dealing, or any statement in any advertisement or brochure or other
document shall be implied or incorporated into the Contract and each of the
same is expressly excluded, unless specifically stated in these Terms &
Conditions.
2. Changes to the Terms
& Conditions.
No provision in these Terms & Conditions may be
varied or waived except by a writing specifically describing such variance or
waiver signed by an authorized representative of GTECHs Dynamic Solutions S de
RL de CV. GTECHs Dynamic Solutions S de RL de CV’s acceptance or
acknowledgement, even if in writing and signed by GTECHs Dynamic Solutions S de
RL de CV, of Customer’s order form, purchase request, or any other document
pertaining to the Work shall not be deemed an acceptance of any provision of
Customer’s order form, purchase request, or any other document that conflicts
with or adds to these Terms & Conditions. IN THE EVENT TERMS AND CONDITIONS
SET FORTH IN ANY ORDER FORM, PURCHASE REQUEST, OR OTHER DOCUMENTATION PROVIDED
BY CUSTOMER ADD TO OR CONFLICT WITH THESE TERMS & CONDITIONS, THESE TERMS
& CONDITIONS SHALL PREVAIL AND GOVERN.
3. Pricing and Payment
for the Work.
a. Prices quoted by GTECHs Dynamic Solutions S de RL
de CV for the Work are solely for the performance of the Work and do not
include freight, insurance, inspection or packaging charges, warehousing or
storage costs, or any sales, use, excise, customs, or other duties, taxes or
fees (individually and collectively referred to as “Costs”). The Costs are to
be paid by Customer and any Costs paid by GTECHs Dynamic Solutions S de RL de
CV shall promptly be reimbursed by Customer. The quoted pricing may include a
minimum charge for each sample submitted. Written and oral quotations may be
withdrawn by GTECHs Dynamic Solutions S de RL de CV at any time, and, in any
event, shall be valid for a maximum of sixty (60) days from the date issued.
b. GTECHs Dynamic Solutions S de RL de CV shall
provide monthly invoices to Customer for that portion of the Work performed in
the previous month. GTECHs Dynamic Solutions S de RL de CV may issue an invoice
for performing separate parts of the Work at any time, in which case GTECHs
Dynamic Solutions S de RL de CV will invoice for that proportion of the total
price to be paid for the Work under the Contract. Should performance or
completion of the Work be delayed by Customer or other causes beyond GTECHs
Dynamic Solutions S de RL de CV’s reasonable control, GTECHs Dynamic Solutions
S de RL de CV may submit invoices, and payment shall become due, as if the Work
had been completed as scheduled unless otherwise agreed in writing by GTECHs
Dynamic Solutions S de RL de CV.
c. Payment on an invoice is due in cash within thirty
(30) days of the issuance date on the invoice, unless otherwise specified in
GTECHs Dynamic Solutions S de RL de CV’s quotation, proposal or order
confirmation. If payment in full is not made when due, interest shall accrue on
the unpaid balance at the lesser of (i) the rate of 1½% per month (18% per
annum) or (ii) the maximum rate permitted under applicable law. Customer agrees
to pay reasonable attorneys’ fees incurred by GTECHs Dynamic Solutions S de RL
de CV in the collection of past due invoices and account balances.
d. If GTECHs Dynamic Solutions S de RL de CV at any
time determines in its sole judgment that there are reasonable grounds for
insecurity with respect to Customer’s payment for the Work or any other
obligation of Customer set forth in the Contract, including without limitation
these Terms & Conditions, GTECHs Dynamic Solutions S de RL de CV may
require adequate assurance of due payment or other performance, such as payment
in cash or satisfactory security, and until GTECHs Dynamic Solutions S de RL de
CV receives such assurance, GTECHs Dynamic Solutions S de RL de CV may suspend
any performance for which it has not already received payment.
4. Completion of Work
and Warranty.
GTECHs Dynamic Solutions S de RL de CV warrants that
it will complete the Work in a satisfactory and workmanlike manner consistent
with industry standards. GTECHs Dynamic Solutions S de RL de CV will exercise
commercially reasonable efforts to complete the Work and provide a report of
the results of the Work by a reasonable date requested in writing by Customer,
but shall not be liable for (i) any delay in Customer’s performance of projects
or delivery of goods, or (ii) any damages incurred by Customer due to such
delay. GTECHs Dynamic Solutions S de RL de CV’s performance of all Work is
subject to GTECHs Dynamic Solutions S de RL de CV’s schedules, capacity,
capabilities, governmental priorities, government regulations, purchase orders,
directions, and restrictions that may be in effect from time to time. EXCEPT AS
EXPLICITLY SET FORTH IN THIS SECTION 4, GTECHS DYNAMIC SOLUTIONS S DE RL DE CV
MAKES NO OTHER WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND ALL SUCH
WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED. GTECHs Dynamic Solutions S de RL de
CV’s warranty shall not apply to any portion of the Work performed by a party
other than GTECHs Dynamic Solutions S de RL de CV except to the extent that any
such third party has warranted such performance to GTECHs Dynamic Solutions S
de RL de CV and is liable to GTECHs Dynamic Solutions S de RL de CV under such
warranty. No employee, agent or other person is authorized to give any
warranties on behalf of GTECHs Dynamic Solutions S de RL de CV in addition to
or different from those stated in this Section 4 or to assume for GTECHs
Dynamic Solutions S de RL de CV any other liability about the Work.
5. Customer Property
and Samples.
a. For purposes of nondestructive testing (“NDT),
Customer’s property and/or samples (the “Property/Samples”) shall be treated
and handled as provided in the quotation or as agreed in writing by Customer
and GTECHs Dynamic Solutions S de RL de CV.
b. For all Work that is not NDT, Property/Samples are
subject to destruction in the performance of the Work. Whenever GTECHs Dynamic
Solutions S de RL de CV is provided detailed instructions in writing as to the
treatment and handling of Property/Samples, GTECHs Dynamic Solutions S de RL de
CV will exercise commercially reasonable efforts to comply with such
instructions.
c. The type of material, tolerances and specifications
for processing Property/Samples shall be declared in writing delivered to
GTECHs Dynamic Solutions S de RL de CV by Customer prior to GTECHs Dynamic
Solutions S de RL de CV’s commencing any Work or shall be deemed not to have
been known by GTECHs Dynamic Solutions S de RL de CV. d. GTECHs Dynamic
Solutions S de RL de CV will not be responsible for any costs or losses
resulting from destruction of Property/Samples submitted to GTECHs Dynamic
Solutions S de RL de CV unless clearly marked “Do Not Destroy” both (i) in the
Contract and (ii) on the Property/Samples. If either the Contract or
Property/Samples are not so marked, GTECHs Dynamic Solutions S de RL de CV
shall have no liability for damage to the Property/Samples. If the Contract and
Property/Samples are so marked, GTECHs Dynamic Solutions S de RL de CV’s
liability for damage to the Property/Samples is limited to the lesser of either
(i) the value of the Property/Samples or (ii) the cost of the Work performed on
the damaged Property/Samples pursuant to the Contract. Under no conditions will
GTECHs Dynamic Solutions S de RL de CV be responsible for any additional costs
or damages, including consequential damages and indirect costs or losses,
resulting from the destruction of the Property/Samples. By submitting the
Property/Samples to GTECHs Dynamic Solutions S de RL de CV, Customer
acknowledges and accepts these limitations and recognizes that GTECHs Dynamic
Solutions S de RL de CV bases its price for the performance of Work on the
existence and enforceability of such limitations.
e. Customer shall make all arrangements for, be
responsible for all costs of, and bear all risks for the transport of any
Property/Samples to and from GTECHs Dynamic Solutions S de RL de CV. Under no
conditions will GTECHs Dynamic Solutions S de RL de CV have any liability for
any item transported to or from its facility.
f. Title to the Property/Samples and all risk of loss
or damage to such shall remain with Customer always. Customer hereby grants to
GTECHs Dynamic Solutions S de RL de CV a security interest in all the
Property/Samples provided to GTECHs Dynamic Solutions S de RL de CV for the
Work to secure the payment of the purchase price for the Work and other fees or
charges due GTECHs Dynamic Solutions S de RL de CV under the Contract. Customer
will not be entitled to the return of the Property/Samples, and after such
return shall not be entitled to transfer or encumber the Property/Samples upon
which Work is performed, until all sums due and owing to GTECHs Dynamic
Solutions S de RL de CV have been paid. Customer shall execute and deliver any
financing statements or other documents that GTECHs Dynamic Solutions S de RL
de CV reasonably requests for the perfection of GTECHs Dynamic Solutions S de
RL de CV’s security interest the Property/Samples and Customer shall do all
other acts necessary for the perfection and preservation of this security
interest.
6. Cancellation by
Customer.
A request, order or Property/Sample for Work once
placed with and accepted by GTECHs Dynamic Solutions S de RL de CV can be
cancelled by Customer, in whole or in part, only upon (i) a written notice of
the cancellation being delivered to GTECHs Dynamic Solutions S de RL de CV and
(ii) all Work performed as of the end of business on the date following
delivery of the written notice is paid for in full. If Customer cancels without
written notice and payment in full for all Work performed, Customer shall be
liable for the full price of the Work, less any actual third party expenses
saved by GTECHs Dynamic Solutions S de RL de CV in not having to perform the
Work, as reasonably determined by GTECHs Dynamic Solutions S de RL de CV in its
sole discretion.
7. Use of Results from
the Work.
The results from the Work (“Reports”) constitute
confidential information that is to be protected and shall be used solely to
(i) assist Customer in completing its internal requirements, (ii) comply with
the Customer’s customer requirements for the delivery and use of the data
recited in the Reports, (iii) respond to a court order or subpoena, or (iv)
respond as required by law. Except for the allowed uses in this Section 7,
neither GTECHs Dynamic Solutions S de RL de CV nor Customer shall disclose the
results or any details of the Work to any third party without the prior written
consent of the other Party. Customer shall not present or publish a Report
except in full as delivered by GTECHs Dynamic Solutions S de RL de CV and shall
not use the Report, or any portion thereof, in any manner that might reflect
unfavorably on GTECHS DYNAMIC SOLUTIONS S DE RL DE CV or which might be, or
includes statements, interpretations or comments that could be, misleading or
false.
Information included in
the reports, diagrams, software, experiment design and information collected in
the field, will always be limited to the initial scope stablished in each
project which will be specified in an attached file or a quote issued for said
project and all modifications or alterations during project development may
result in additional charges as well as delivery time extensions.
All information presented
in project reports is based on empirical and numeric data are representative
and only an approximation to the problem resolution and will never be
definitive or conclusive unless otherwise explicitly stated in writing.
All projects are limited
to their planning, experimentation and conclusion to the information provided
by the customer, which is considered as true, reliable and the primary source
and any bias will not be considered unless such bias is explicitly reported by
the customer, in writing, which will be considered during experimentation.
Reports and conclusions
produced as a consequence of experiments conducted by Gtechs Dynamic Solutions
S DE RL DE CV are limited to the scientific method and thus are only a
representative approximation to the solution of a problem, unless explicitly
stated in writing, hence, Gtechs Dynamic Solutions S DE RL DE CV does not
endorse said information that triggers legal action, refusing all
responsibility of third party actions.
8. Court and Other
Proceedings.
Due to the nature of the Work, GTECHs Dynamic
Solutions S de RL de CV and its employees will, from time to time, be required
to present the Work, with results and findings in various proceedings and
forums, including without limitation depositions, court proceedings, and
government agency investigations. Whenever GTECHs Dynamic Solutions S de RL de
CV is required to provide data, information, documents, testimony,
presentations, or opinions as to the Work, whether at the direction of Customer
or any other person, Customer will be charged, in addition to the agreed upon
price for the Work, GTECHs Dynamic Solutions S de RL de CV’s usual and
customary costs and fees in effect at the time for such activities including
the preparation therefore. GTECHs Dynamic Solutions S de RL de CV will at
Customer’s written request attempt to have the costs and fees reimbursed by the
person directing the activities; however, if such person does not reimburse
GTECHs Dynamic Solutions S de RL de CV, such costs and fees will be the responsibility
of Customer.
9. Force Majeure.
Each Customer and GTECHs Dynamic Solutions S de RL de
CV shall be excused from the duty to render timely performance of any
obligation under this Contract if such inability to perform is caused directly
or indirectly by act of God, flood, war, riot, accident, explosion, strikes or
labor trouble, act of government, delay or default by a subcontractor or
supplier of materials or services, the existence of any circumstance making
performance commercially impracticable, or any other cause beyond the party’s
reasonable control; provided, however, that payments due under this Contract
are not excused for any reason including without limitation the provisions of
this Section 9.
10. Customer Remedies.
a. The sole and exclusive remedy of Customer and its
customers, agents and other affiliates for any claim against GTECHs Dynamic
Solutions S de RL de CV based on or relating to any claimed defect in the Work
or otherwise relating to the Work, the Contract, or these Terms &
Conditions, whether such claim is based upon contract, tort, professional
errors or omissions, strict liability, or negligence, and whether such claim is
for property damage, personal injury, commercial loss, or other monetary loss,
shall be (i) upon the return, restoration, or replacement by Customer of
Property/Samples upon which the Work was performed, the re-performance of any
portion of the Work at issue, or (ii) a refund or credit to Customer in the
amount of the price paid for the portion of the Work at issue.
b. Customer’s remedies in this Section 10 shall only
be available if: (i) GTECHs Dynamic Solutions S de RL de CV has been paid in
full for the Work pursuant to this Contract; (ii) GTECHs Dynamic Solutions S de
RL de CV is notified in detail, in writing, of the claimed issue within twenty
(20) days of Customer’s discovery thereof and within ninety (90) days after the
completion of the Work; and (iii) GTECHs Dynamic Solutions S de RL de CV is
permitted to inspect all property related to the Work at issue.
11. Limitation on
Liability.
a. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 10 OF
THESE TERMS & CONDITIONS, GTECHS DYNAMIC SOLUTIONS S DE RL DE CV SHALL NOT
BE LIABLE TO CUSTOMER OR ANYONE ELSE FOR ANY LOSS OR DAMAGE DIRECTLY OR
INDIRECTLY ARISING FROM ITS PERFORMANCE OF THE WORK, INCLUDING WITHOUT
LIMITATION ANY DAMAGE TO CUSTOMER’S PROPERTY. GTECHS DYNAMIC SOLUTIONS S DE RL
DE CV SHALL NOT IN ANY CIRCUMSTANCE WHATSOEVER BE LIABLE FOR ANY LOSS OR DAMAGE
ARISING FROM THE USE OF PROPERTY UPON WHICH THE WORK IS PERFORMED OR ANY
SIMILAR PROPERTY OR FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES
WHATSOEVER (OR PUNITIVE OR EXEMPLARY DAMAGES TO THE EXTENT PERMITTED BY LAW).
IN NO EVENT, NOR UNDER ANY CIRCUMSTANCE SHALL GTECHS DYNAMIC SOLUTIONS S DE RL
DE CV BE LIABLE FOR ANY DAMAGES IN AN AMOUNT GREATER THAN THE COST OF THE WORK
AT ISSUE, WHETHER SUCH DAMAGES SHALL ARISE FROM BREACH OF THIS CONTRACT, IN
TORT, BY WAY OF INDEMNITY, OR OTHERWISE.
b. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER PARTY IN ANY ACTION OR CLAIM BASED ON SPECIAL, INCIDENTAL, PUNITIVE,
EXEMPLARY, OR CONSEQUENTIAL DAMAGES, REGARDLESS OF CAUSE.
12. Effect of Waiver.
The failure of a Party at any time to require
performance by the other Party of any provision of this Contract shall in no
way affect the right to require such performance at any time thereafter, nor
shall the waiver by a Party of a breach of any provision of this contract constitute
a waiver of any succeeding breach of the same or any other provision.
13. Severability.
If any Section, provision or term of this Contract is
deemed to be invalid or unenforceable under any statute, regulation, ordinance,
executive order or other rule of law, such Section, provision or term shall be
deemed reformed or deleted, but only to the extent necessary to comply with any
statute, regulation, ordinance, executive order, or other rule of law, and all
other Sections, provisions and terms of this Contract shall remain in full
force and effect.
14. Dispute Resolution.
In the event of a dispute under the Contract, the
Parties shall attempt to resolve the issues through discussions between their
representatives for up to thirty (30) days. Prior to the filing of any lawsuit,
the Parties shall submit the dispute to mediation, which shall be conducted in
the State where the Work is performed. Each Party shall pay its own fees and
costs for mediation and all other alternate dispute resolution mechanisms.
15. Entire Contract.
This Contract with these Terms & Conditions
contain the entire understanding of the Parties regarding the Work and all
matters addressed herein and supersede any prior understandings, agreements, or
discussions between the Parties relating to the Work or any other matter.