Kistler Instruments, S. de R.L. de C.V. (“Kistler”) Terms and Conditions of Sales and Services.

Unless otherwise required by Kistler, products or services acquired from Kistler are subject to the next terms and conditions:

 

1. Formation of the Contract.
If this instrument is a quotation, whether or not a response to a request from the Buyer, which constitute an offer of Kistler Instruments, S. de R.L. de C.V. (hereinafter "Kistler") to the buyer, and becomes a binding contract on the terms and conditions set forth herein when accepted by the Buyer. However, the acceptance will be valid only if made within thirty days of the date hereof or within the time specified in this document. If this instrument is a recognition that Kistler constitutes acceptance of the order buyer, subject, nevertheless, to the terms and conditions set forth herein. In the creation of a contract, , we will refer to this instrument complete on between the companies regarding the goods, equipment or services purchased, and supersede any other agreement, in writing, or understanding whether before or after the date of this instrument. Therefore, Kistler contractual obligations expressly limited to the terms contained in this document. The inclusion of additional or different terms in any other instrument is challenged, and performance for Kistler will occur with the express understanding that only the terms and conditions provided herein shall control.

 

2. Invoicing
Invoices for goods and services should be delivered to the buyer as follows:

a) Orders consisting of only standard products, systems, parts, components, third parties and / or management software (for example, operating systems and backup software) will be billed upon shipment.

b) Orders consisting of only professional installation services, including support, integration and implementation of systems, will be billed as incurred.

c) Orders consisting of only licensed software custom applications and custom software development, feasibility studies, training, travel, documentation and / or repair services will be billed upon delivery.

d) Orders that consist of only support agreements, or extended warranty of tools will be billed to the acceptance of order.

e) When an order has a significant amount of tools (custom or not) and / or the initial installation cost associated with the agreement, Kistler reserves the right to invoice the order in stages as follows;
I. 30% of the order on the acceptance of the order;
II. 40% of the order on the shipment of tools;
III. 20% of the order as a percentage of completion of integration;
IV. 10% of the order on the termination of the implementation and runoff.

f) Tools that are not subject to sales stages will be billed upon shipment.

g) Programs that are not subject to sales stages will be billed upon shipment.

 

3. Terms of payment
a) All payments must be made in U.S. funds, and at no cost to Kistler. All prices are exclusive of duties, brokerage fees, sales, use, value added taxes or otherwise, unless otherwise indicated. The buyer will be responsible for payment of those duties, brokerage fees and taxes.

b) The cash payment will be in the draft order and the view attached to the invoice or bill of lading (or shipping documents) to the option of Kistler.

c) Where credit is extended by Kistler, invoices must be paid within thirty days from the invoice date. If a bill is not paid at maturity, Kistler reserves the right to charge default interest amounting to .75% per month (9% annually), calculated from the date of payment of such amount, until paid. Notwithstanding the foregoing, Kistler reserves the option to refuse or revoke credit, and to demand immediate payment of all outstanding balances and delivery of all future deliveries, or with respect to the services provided herein, advance payment for such services.

d) The purchaser agrees to pay all expenses incurred in collecting any unpaid balance of the purchase price or the repossession of goods, including reasonable attorneys' fees.

e) If you Kistler extends credit to the purchaser for the purpose of securing payment and performance of all obligations hereunder buyers, Kistler retain a security interest in all products sold under this agreement. At request of Kistler, the buyer must execute all security agreements and other instruments, and the buyer must allow Kistler to present the declarations of the financing, in form satisfactory to Kistler, that Kistler considers necessary or convenient to perfect its product warranty that are sold under this agreement.

 

4. Packing and Shipping
Packing and shipping shall be in accordance with good business practices.

 

5. Delivery and Title
a) Delivery will be FOB (Free On Board) Kistler factory, and the risk of loss pass to Buyer at the time of delivery. The title will go through the payment in full.

b) In any case, Kistler has no responsibility for delays, loss of use, or for any indirect or consequential damages arising from any delay or lack of use.

c) Kistler is not responsible for the breach of any obligation then due to events beyond their control. These events include, but are not limited to, fire, storms, floods, earthquakes, explosions, accidents, acts of public enemy, sabotage, strikes, labor disputes, labor shortages, work stoppages, transportation embargoes or delays, lack or shortage of materials or machinery used by Kistler in the manufacture of the products provided herein, acts of God, failure of suppliers or subcontractors to meet scheduled deliveries satisfactorily, and acts or regulations or priorities of federal, state or local branches or agents thereof, government contracts or shipments to buyers to comply with government contracts.

d) No claim for shortage of goods is allowed unless Kistler is informed in writing within ten days of receipt of goods.

 

6. Patents
a) The buyer will not receive as a result of the sale of goods in this document, any right or license of any kind under any patent owned or controlled by Kistler, Kistler or which can be licensed. However, the above provision shall not limit the client's right to use and sell these goods, in the case of products covered by a patent.

b) Kistler agrees to defend any action, domestic or foreign, that either party may initiate against Buyer for alleged infringement of a patent or patents relating to devices or apparatus whose design and decoration are typical of Kistler, under this contract. However, this paragraph only apply to offenses when caused solely by the use (according to the specifications applicable) of such devices or equipment specified and not part of any combination of other devices, appliances and / or parts. In addition, Kistler obligations under this paragraph shall arise only if the buyer (a) have made all payments under this contract, (b) shall give immediate notice in writing Kistler of the alleged violation and the institution of any claim, (c) authorize Kistler to defend such claim, and (d) shall provide all information Kistler, assistance, and authority, according to lawyers for Kistler, necessary to defend such claim. Kistler not be liable under this paragraph for any agreement reached without the consent in writing Kistler. Unless there is a direct result of a dispute that Kistler has defended the terms of this paragraph, Kistler will not be liable for any infringement of patents. Kistler, not be bound to defend any claim or pay damages arising directly or indirectly, by reason of the use of any part, device, apparatus, and / or design is not provided by Kistler.

c) Unless otherwise agreed in writing by Kistler, Kistler retain exclusive ownership of all rights, title and interest in and to copyright, patent rights, trademark and service mark rights, trade secret rights , moral rights and other intellectual property and proprietary rights, whether or not in tangible form, whether or not subject to protection or registration in the United States of Mexico or elsewhere (the "Intellectual Property"), which is relating to or arising in connection with products or services produced under this agreement.

d) If any of the intellectual property is considered by reason or at any time "work for hire," assigns the buyer and the press, and agrees to assign and release any and all rights, title and interest and for such intellectual property, including all extensions and renewals thereof, Kistler, and shall execute and deliver such additional instruments to confirm the same as requested by Kistler.

 

7. Compensation buyer's designs
If the products are made or services are provided, as appropriate, in accordance with the buyer's plans, designs, specifications or instructions, Buyer shall indemnify and hold harmless, and defend Kistler, from and against any damage, loss, expenses, liabilities, claims, demands, judgments, decrees and costs caused by or in connection with the plans, designs, specifications or instructions of such goods and / or services, including any violation or alleged patent violation.

 

8. Standard Product Warranty Kistler
a) Subject to the provisions of this Section 8, Kistler ensures that each point of manufacture, at the time of shipment to the buyer, at any time to adjust aspects of applicable specifications and drawings, and be free from defects in materials and labor. Design provisions, the primary function, or other specifically to the goals or objectives shall not be considered the subjects required for this guarantee.

b) Unless otherwise specified, the obligation under this warranty Kistler will be limited to the repair or replacement, at the discretion of Kistler, any element within twelve months from the date of shipment to the buyer is shown Kistler the satisfaction of being non-compliant at the time of shipment. As a condition of this warranty, the buyer must give written notice of any disagreement Kistler immediately upon discovery and shall return the item to Kistler for inspection. Kistler not be liable for any work done or repairs made by others at any time.

All warranties shall be immediately null and void, Kistler shall, at its sole discretion, determine whether a product has been disassembled or have been subject to unauthorized modification, misuse, abuse, accident, negligence, improper installation or application, modification or negligence in the use, storage, transport or handling.

c) Kistler is not responsible for the performance of any product that includes items manufactured by Kistler performance unless expressly stated to be responsible for Kistler, under the terms of the written agreement between Kistler and the buyer.

d) Kistler is not responsible for any misuse, installation, accident, operation or maintenance of the parts manufactured by Kistler, nor for damage caused by the same or the negligence of the purchaser's employees or agents.

e) Kistler not be liable for any consequential or incidental damages caused by the failure of all items supplied by Kistler, or failure of any element in a component manufactured by Kistler is incorporated.

f) Unless previously agreed in writing, Kistler not provide field repairs, modifications, or any other service conducted under this guarantee.

g) EXCEPT AS PROVIDED IN THIS SECTION 8, THE PRODUCTS AND SERVICES PROVIDED BY KISTLER ARE PROVIDED "AS IS." THE WARRANTY CONTAINED HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER OBLIGATIONS AND RESPONSIBILITIES. REGARDING CONTRACTS KISTLER AND THE GOVERNMENT OF THE EE.UU.MM. OR ANY OF ITS AGENCIES, THE RIGHTS AND REMEDIES PROVIDED BY THE GOVERNMENT OR AGENCIES PRODUCT STANDARD WARRANTY ARE IN ADDITION TO AND NOT LIMITED OFFERS ANY RIGHTS OR ANY OTHER PROVISION OF THE CONTRACT PROVISIONS.

h) NO REPRESENTATIONS OR STATEMENTS OR FACTS, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING PERFORMANCE OF THE PRODUCTS OR SERVICES, WHICH DOES NOT APPEAR IN SECTION 8, BE CONSIDERED AS A WARRANTY, CONDITION OR REPRESENTATION OF KISTLER. ANY VARIATION OF THE AGREEMENTS OR THE EXTENSION OF THE TERMS OF WARRANTY AND LIMITATIONS KISTLER BE BINDING UNLESS IN WRITING AND SIGNED BY AN OFFICER AUTHORIZED BY KISTLER. KISTLER NOT REPRESENT OR WARRANT THAT THE PRODUCTS OR SERVICES WILL MEET ANY OR ALL BUYERS SPECIAL REQUIREMENTS, THAT THE PRODUCTS WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL ERRORS OR DEFECTS IN THE PRODUCT MAY BE DETERMINED OR CORRECTION. KISTLER NO WARRANTIES OF ANY THIRD PARTY PRODUCTS OR SERVICES OF ANY KIND.

 

9. Information, Data and Design
The proposals, printouts, brochures, drawings, designs, data or other information provided to Buyer for Kistler before, after or simultaneously with the execution of this contract are for confidential use by the purchaser shall remain the property of Kistler, and not used in prejudice of the competitive position of Kistler.

When given the projections of all proposals, performance and production, prints, brochures, drawings, designs, data and other information are based on knowledge of Kistler and understanding, but in any case are only estimates and is not guaranteed in any way. The provision of any information on the design of Kistler not an assumption of responsibility for the design, unless expressly assumed by Kistler.

 

10. Services
If Kistler provides the buyer with all the services including, without limitation, installation services, all services will be conducted in accordance with the general conditions for Kistler, conditions and specifications of those services. Except as otherwise provided herein, service fees for Kistler, outside of any quoted amount and collect payment for products provided in this document, and the buyer will be billed once a month or more frequently. All invoices are paid in accordance with the terms of Section 3. Kistler will invoice to the buyer and the buyer must pay Kistler, of these services based on hourly rate for services Kistler for effect when these services are carried out. Any change in scope of services shall be governed by Section 15.

 

11. User License
In its case, the buyer must sign and return a signed copy of the License Agreement User Kistler covering all software products provided by Kistler, whether developed by Kistler or third party, prior to the start of the installation.

 

12. Software Support and Maintenance
External support of resources warranty (i.e. custom) or outside the warranty period or for versions of software no longer supported by Kistler is subject to the payment of application fees and execution of maintenance and support agreement or arrangement professional services (as appropriate). Kistler supports software updates for current major version and the latest version of the previous major version. Patches and / or corrections of errors occur only for software versions currently supported. Kistler reserves the right not to support the software versions, if a new update is available. In the event that the purchaser would enter into a maintenance and support agreement with Kistler at the latest at the time of purchasing the product in question, the buyer then be required to acquire the maintenance and support services retroactively when purchase that product.

 

13. The improvement and policy update
Improvements in the software occurs only for the current version of software. Hardware Upgrades, excluding third parties shall be effective only if they are essential to the functioning of the application (as determined by Kistler in its sole opinion). If the buyer has a valid agreement for software maintenance tools you will receive updates and product enhancements as described in the agreement. If the buyer does not have a valid maintenance contract, the buyer is not entitled to updates, but can receive updates at the discretion of Kistler.

 

14. Cancellation of contract
Under no circumstances can the purchaser cancel its obligations under the contract. Any attempt to do so will entitle Kistler, in its sole discretion, either has (a) recover all direct, indirect and consequential damages arising in connection with the attempted cancellation, or (b) keep as liquidated damages any deposit made by customers under this contract.

 

15. Changes
The buyer must pay additional charges for changes requested by the buyer that are outside the scope of the original order in the payment standard for Kistler time and cost of materials. These charges are in addition to all other amounts due under this agreement, despite any maximum budget, contract price or final price identified in the original order.

Kistler may extend or modify any delivery schedule or deadlines in the original order which may be required by such changes.

 

16. Choice of law
In the case of a dispute concerning any of the terms and conditions contained herein, the parties agree that the laws of the State of Nuevo Leon, Mexico will govern this contract.

 

17. Assignment
The rights of the buyer can not be assigned or transferred to any other person, whether by operation of law or otherwise, without prior written approval of Kistler.

 

18. Resignation
Kistler waiver by any breach of any of these Terms, or their inability to exercise any right, is not considered as a waiver of any breach or a waiver to exercise any other right.

 

19. Indemnification by Buyer
The Purchaser shall indemnify and hold harmless Kistler any and all claims made by employees or agents of the buyer for injury or damage, including death, arising from or related to the work done in this budget or contract.

 

20. Defect
If the buyer does not pay the bills when due, or will not accept shipments as scheduled, Kistler may, at its option and without prejudice to the resources, either to postpone further shipments until the defect is corrected or cancel the obligations of Kistler remaining under the contract.

 

21. Authorization
Buyer represents and warrants that the person who executed the instrument accepts this offer, or to execute the buyer's acceptance of the offer contained in this instrument, which has been duly executed the relevant documents on behalf of the buyer, and is duly authorized to so act. 22. Accordance These products, technology or software are controlled by the and / or international regulation of arms trafficking (ITAR). The replacement contrary to Mexican law is prohibited. Kistler and the buyer shall be responsible to be in compliance of the applicable law or regulation for their own.