MetroSTOR Inc. Terms and Conditions

1.    Applicability

(a) These terms and conditions (these “Terms”) are the only terms that govern the sale of the goods set forth in the order acknowledgement (the “Goods”) to, and the work, maintenance, or services (the “Services”) to be performed by MetroSTOR Inc. (“Seller”) for, the party receiving the order acknowledgement from Seller (“Buyer”).
(b) Any accompanying quotation, order acknowledgement and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
(c) These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.

2.    Delivery of Goods and Performance of Services

(a) The Goods will be delivered on a date agreed in writing by the parties.  If no delivery date is specified, Seller shall deliver the Goods within a reasonable time after the receipt of Buyer’s order.
(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to the location designed by Buyer in writing (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods.
(c) Buyer shall take delivery of the Goods once the Goods have been delivered to the Delivery Point. Unless otherwise set forth in the order acknowledgement, Buyer shall be responsible for all unloading and installation costs and shall provide equipment and labor reasonably suited for receipt, unloading and installation of the Goods.
(d) If for any reason Buyer fails to accept delivery of the Goods or if Seller is unable to deliver the Goods because Buyer has not provided appropriate instructions, documents, access, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage, and insurance).
(e) Seller shall use reasonable efforts to meet any performance dates to render the Services and any such dates shall be estimates only.
(f) With respect to the Services, Buyer shall: (i) cooperate with Seller in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing the Services; (ii) ensure that such premises and locations are safe and secure; (iii) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to perform the Services; (iv) provide such customer materials or information as Seller may request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (v) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services.

3.    Shipping Terms – Seller shall make delivery in accordance with the terms in the order acknowledgement or as otherwise agreed in writing by the parties.

4.    Title and Risk of Loss – Title and risk of loss pass to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, 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. The security interest granted under this provision constitutes a purchase money security interest under the New York State Uniform Commercial Code.

5.    Amendment and Modification – These Terms may only be amended or modified by a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.

6.    Inspection and Rejection of Nonconforming Goods

(a) Buyer shall inspect the Goods upon receipt. Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in the order acknowledgement; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion: (i) replace such Nonconforming Goods with conforming Goods; or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable delivery expenses incurred by Buyer in connection therewith.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 6(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 6(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.

7.    Price

(a) Buyer shall purchase the Goods and Services from Seller at the price (the “Prices”) set forth in Seller’s published price list in force as of the date that Seller sends the quotation to Buyer.
(b) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, real or personal property or other assets.

8.    Payment Terms

(a) Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller’s invoice. Buyer shall make all payments hereunder by wire transfer and in US dollars.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law, Seller shall be entitled to suspend the delivery of any Goods or performance of any Services if Buyer fails to pay any amounts when due hereunder and such failure continues for 10 days following written notice thereof.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.

9.    Limited Warranty

(a) Seller warrants to Buyer that for a period of 12 months from the date of delivery of the Goods (“Warranty Period”) that:
(i) all welded assemblies, bolted components and panel assemblies are warranted against structural failure;
(ii) all castings are warranted against breakage or structural failure; and
(iii) all wearing parts (including latches, latch pins, hinges (where not cast items), dampers, drop bolts) are warranted against manufacturing defects for a period of 12 months.
(b) Seller warrants to Buyer that it shall perform the Services using personnel or contractors of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement:
(c) EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 9(A) AND SECTION 9(B), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(d) Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Goods. Third-Party Products are not covered by the warranty in Section 9(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(e) Seller shall not be liable for a breach of the warranty set forth in Section 9(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within 30 days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.
(f) Seller shall not be liable for a breach of the warranty set forth in Section 9(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, cleaning, use or maintenance (including but not limited to surface cleaning and coating repair) of the Goods; (iii) Buyer alters or repairs such Goods without the prior written consent of Seller; or (iv) the defect arises for external causes including, but not limited to, vandalism, collision, fire, immersion in water, neglect, normal wear and tear, exposure to the elements or acts of God.
(g) Subject to Section 9(e) and Section 9(f) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
(h) With respect to any Services subject to a claim under the warranty set forth in Section 9(b), Seller shall, in its sole discretion, (i) repair or re-perform the applicable Services; or (ii) credit or refund the price of such Services at the pro rata rate.
(i) THE REMEDIES SET FORTH IN SECTION 9(G) AND SECTION 9(H) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9(A) AND SECTION 9(B), RESEPCTIVELY.

10.    Limitation of Liability

(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS AND SERVICES SOLD HEREUNDER.
(c) The limitation of liability set forth in Section 10(b) above shall not apply to: (i) liability resulting from Seller’s gross negligence or willful misconduct; (ii) death or bodily injury resulting from Seller’s acts or omissions; or (iii) any liability which cannot be limited by applicable law.

11.    Compliance with Law

(a) Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
(b) Seller shall comply with all applicable laws, regulations, and ordinances applicable to its performance of the Services.
(c) Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.

12.    Insurance – During the term of this Agreement, Buyer shall, at its own expense, maintain and carry insurance with financially sound and reputable insurers which includes, but is not limited to, commercial general liability with limits no less than $1,000,000 per occurrence and $2,000,000 in the aggregate, which policy will include liability coverage insuring the obligations of Buyer under these Terms. The certificate of insurance shall name Seller as an additional insured.

13.    Termination – In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for 10 days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy.

14.    Waiver – No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

15.    Confidential Information

(a) All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates (“Confidential Information”), disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (i) in the public domain; (ii) known to Buyer at the time of disclosure; or (iii) rightfully obtained by Buyer on a non-confidential basis from a third party.
(b) Buyer shall not use any non-public, confidential or proprietary information of Seller in any manner to Seller’s detriment, including without limitation, to reverse engineer, disassemble, decompile or design around Seller’s services, goods, products and/or confidential intellectual property.

16.    Intellectual Property

(a) Seller hereby retains its entire right, title and interest in its designs, trademarks, patents, copyrights and other intellectual property rights. The sale of Goods and performance of Services under these Terms shall not be construed as an assignment, grant, option, license or other transfer of any such right, title or interest whatsoever to Buyer.
(b) If the Goods are made or supplied to Buyer’s own specifications, pattern or design, or pursuant to Buyer’s instructions, Buyer represents and warrants that such specification, pattern or design does not infringe any designs, trademarks, patents, copyrights or other intellectual property right of a third party and Buyer shall indemnify and defend Seller against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, that are incurred by Seller arising out of any infringement of such designs, trademarks, patents, copyrights and other intellectual property right.

17.    Force Majeure – No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party“) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)“): (a) acts of God; (b) flood, fire, earthquake, pandemic, epidemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 30 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.

18.    Assignment – Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

19.    Relationship of the Parties – The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

20.    No Third-Party Beneficiaries – This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.

21.    Governing Law – All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.

22.    Submission to Jurisdiction – Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the City of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

23.    Notices – All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth on the face of the order acknowledgement or to such other address that may be designated in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (return receipt requested, postage prepaid). A Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

24.    Severability – If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

25.    Survival – Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.