Fluxergy Europe GmbH - Terms and Conditions of Sale
THESE TERMS AND CONDITIONS OF SALE OF FLUXERGY EUROPE GmbH (“FLUXERGY EU”), AS MAY BE SUPPLEMENTED BY PROVISIONS ON FLUXERGY’S EU WEBSITE, TOGETHER WITH ANY ADDITIONAL TERMS AND CONDITIONS THAT MAY BE DISPLAYED ON ANY PURCHASE ORDER ACKNOWLEDGEMENT, QUOTE, OR INVOICE (COLLECTIVELY, THESE “TERMS”), CONSTITUTE THE COMPLETE AGREEMENT OF THE PARTIES GOVERNING THE PURCHASE AND SALE OF ANY PRODUCTS AND SERVICES (“AGREEMENT”). ANY TERMS AND CONDITIONS OF CUSTOMER IN ANY PURCHASE ORDER OR QUOTE REQUEST SHALL NOT BECOME PART OF THE AGREEMENT, AND THIS APPLIES EVEN IF FLUXERGY EU, WITH KNOWLEDGE OF THE CONFLICTING TERMS AND CONDITIONS OF CUSTOMER, ACKNOWLEDGES ANY PURCHASE ORDER OR PROVIDES PRODUCTS WITHOUT RESERVATION TO CUSTOMER.
1. DEFINITIONS
(a) “Commencement Date” means the date both parties have fully executed the Agreement.
(b) “Documentation” means labels, user manuals, instructions for use, package insert, and similar technical documentation, for any of the Products in effect on the date that the Products ship from Fluxergy EU. Documentation may be provided with the Products in written form or made available electronically or on Fluxergy EU’s or Manufacturer’s website.
(c ) “EU Medical Device Laws” has the meaning set forth in Section 6.2 hereof.
(d) “Intended Use” means the specific intended use of the Products as set forth in the Documentation.
(e) “Permitted Use” means the field of use and/or application of the Products by Customer in the testing field, as specified in the Products Documentation, subject to any restrictions or limitations on usage set forth therein or herein, including but not limited to Section 6 of these Terms and Conditions, as well as all appliable laws and regulations, including EU Medical Devise Laws.
(f) “Products” means: (i) the IVD Analyzer; (ii) all test cards, reagents, reaction mixes, sample collection/storage devices, growth/enrichment mediums, etc. that are unique to a specific test being sold hereunder; (iii) any goods and services provided by Fluxergy EU; (iv) Any accessories manufactured by third parties that may be provided by Fluxergy such as barcode scanners, tablet computers, vortexers, centrifuges, incubators, pipettes, storage racks, gloves, disposal bags, etc.
(g) “Regulatory Authority(ies)” means any government or quasi-governmental regulatory agency or authority that monitors, restricts or regulates the Products in the location where the Products will be sold or used.
(h) “Regulatory Jurisdiction” means any country or jurisdiction that requires approval by such country’s or jurisdiction’s appropriate Regulatory Authority, if any.
(i) “RUO” means research use only, and accordingly any product to which the designation is applied is for scientific research purposes only, and has not been approved by an applicable regulatory body for use in clinical diagnostic procedures.
(j) “Specifications” means Manufacturer’s written technical specifications for the Products in effect on the date that the Products ship from Manufacturer, which may be found in the Documentation and/or on the Manufacturer’s website.
2. SALE; ACCEPTANCE OF PURCHASE ORDERS
2.1 Sale. Fluxergy EU agrees to sell to Customer, and Customer agrees to buy from Fluxergy EU, all of the Products as described on the first page hereof, or as set forth in any Fluxergy EU provided quote, in accordance with the provisions of the Agreement. Any of the following actions shall be deemed an acceptance by Customer of the Agreement respecting the purchase and sale of the Products: (i) Customer’s execution of any purchase order for Products that is acknowledged by Fluxergy EU, where Customer does not object to such acknowledgement in writing within three business days, (ii) Customer’s acceptance of delivery of any of the Products from Fluxergy EU, and/or (iii) Customer’s use of any of the Products, including experimental use for RUO.
2.2 Acceptance of Purchase Orders. Customer may submit purchase orders for any orders or re-orders of any Products. Fluxergy EU reserves the right to reject any Customer-submitted purchase order for any reason, including but not limited to Customer’s credit history, Product availability, Force Majeure Events, etc. Fluxergy EU shall not be deemed to have accepted any Customer purchase order unless and until Fluxergy EU delivers a written acknowledgement of acceptance to Customer with regard to each submitted purchase order.
3. CANCELLATION
Customer may cancel the Agreement with respected to any Products at any time prior to the date of shipment of the Products, but only by notifying Fluxergy EU in writing of its decision to cancel. Any such termination shall have no effect on Customer’s obligation to pay any outstanding invoices to Fluxergy EU for Products previously shipped. Fluxergy EU reserves the right to cancel any accepted Purchase Order without further obligation or liability to Customer if at any time prior to shipment (a) a Force Majeure Event has occurred, or (b) Customer has committed an Event of Default pursuant to Section 15 hereof.
4. SHIPPING AND INSURANCE
Fluxergy EU shall deliver the Products under this Agreement to a common carrier chosen by Fluxergy EU on Customer’s behalf, for shipment and delivery, in accordance with Fluxergy’s EU ordinary packaging, shipping and insurance practices. Customer may indicate on its purchase order its preferred common carrier. Products will be shipped to the valid postal/shipping address designated by Customer. Customer shall bear all costs of freight, insurance and other shipping expenses, Ex works (EXW)(Incoterms 2020) from Fluxergy ’s EU shipping point of origin in Germany. Fluxergy EU may ship the Products in one or more lots, at Fluxergy EU’s sole election. Fluxergy EU shall not be liable for any failure or delay in shipping caused by any common carrier, and all shipping dates are approximate and not guaranteed. Any claims for shortages or damages suffered in transit are the responsibility of Customer, and shall be submitted by Customer directly to the common carrier. Unless Customer has prepaid for the Products, any common carrier reimbursement or proceeds of insurance on the Products shall be paid to Fluxergy EU.
5. ACCEPTANCE AND REJECTION OF PRODUCTS; PROPERTY RIGHTS
5.1. Acceptance and Rejection of Products. Customer shall inspect the Products upon delivery with due care and shall accept or reject the Products no later than the close of business on the fifth (5th) full business day following delivery (the “Acceptance Period”). The Products shall be deemed accepted upon the earlier of (i) Customer’s written confirmation of acceptance, or (ii) if a written rejection is not received by Fluxergy EU, then at 5:00 pm local time on the last day of the Acceptance Period. Any claims for defective, damaged or missing Products identifiable in the course of an immediate, careful inspection, must be reported to Fluxergy EU in writing within the Acceptance Period and Customer must promptly return rejected Products to Fluxergy EU, accompanied by a valid return authorization number obtained from Fluxergy EU. Such acceptance of goods based on visual inspection does not include issues arising from non-obvious defects. Customer must notify Fluxergy EU in writing of any claim with regard to any such non-obvious defects within five (5) business days after Customer becomes aware of the same or should have become aware using reasonable diligence, and Customer must promptly return such rejected Products to Fluxergy EU, accompanied by a valid return authorization number obtained from Fluxergy EU. Fluxergy EU may refuse the return of any Products not timely rejected or sought to be returned without a valid return authorization number.
5.2 Property Rights. Fluxergy EU retains legal title to any Products delivered to Customer until the purchase price (including VAT and shipping costs) has been paid in full by Customer (hereinafter “Retained Products”). Customer is entitled to resell the retained products in the course of its ordinary business. In the event of resale of the Retained Products, Customer hereby assigns to Fluxergy EU in advance, and Fluxergy EU hereby accepts, by way of security the resulting claim against the purchaser thereof. The same shall apply to other claims which arise as a substitute for the Retained Products or in relation to the Retained Products, e.g., insurance claims or claims in tort in the event of loss or destruction. Fluxergy EU revocably authorizes the Customer to collect the assigned claims in its name. This collection authorization may only be revoked by Fluxergy EU in the event of liquidation.
6. PERMITTED USES; REGULATORY REQUIREMENTS
6.1 Customer agrees to only use the Products in accordance with the Products’ Intended Use.
6.2 For Products that are CE Marked or registered in accordance with the EU in Vitro Diagnostics Regulation 2017/746 and/or the EU in Vitro Diagnostics Directive 98/79/EC, it shall be Customer’s sole responsibility to obtain all necessary approvals, authorizations, and permissions needed from any Regulatory Authority to possess, store, transport, use or resell the products.
6.3 Customer shall be solely responsible and liable to ensure that its possession, storage, transport, use, and/or resale of the Products is in compliance with all applicable laws and regulations of any Regulatory Authorities in the jurisdictions in which it will possess, use or resell such Products, including EU Medical Device Laws. Customer shall comply with all requirements of applicable laws regarding its possession, storage, transfer, use, and/or resale of the Products, including without limitation those involving vigilance, traceability and post market surveillance in accordance with EU Medical Device Laws. Customer’s acceptance and rejection rights with regards to Product as set forth in Section 5.1 hereof shall have no bearing or effect on Customer’s obligations under any notification or reporting requirements under EU Medical Device Laws, and Customer shall to the extent practical immediately notify Fluxergy EU of any defect in any Product it inspects or otherwise becomes aware of.
6.4 CUSTOMER ACKNOWLEGES AND AGREES THAT IN REGARDS TO ANY PRODUCTS THAT ARE NOT REGISTERED/AUTHORIZED UNDER THE EU MEDICAL DEVICE LAWS AS SET FORTH IN SECTION 6.2 HEREOF, FLUXERGY EU IS SELLING CUTOMER SUCH PRODUCTS FOR RUO (RESEARCH USE ONLY).
6.5 WITHOUT LIMITING THE GENERALITY OF SECTIONS 6.1, 6.2, 6.3 and 6.4, CUSTOMER IS HEREBY ADVISED THAT THE FLUXERGY EU PRODUCTS ARE NOT REGISTERED WITH ANY REGULATORY AUTHORITY HAVING JURISDICTION OVER VETERINARY HEALTH PRODUCTS IN POLAND OR PORTUGAL, AND THAT SUCH COUNTRIES GENERALLY REQUIRE REGISTRATION/AUTHORIZATION BEFORE THEY CAN BE USED FOR VETERINARY DIAGNOSTIC PURPOSES.
7. INTELLECTUAL PROPERTY RIGHTS; CONFIDENTIALITY; IDENTIFYING MARKS; SOFTWARE LICENSE
7.1 Intellectual Property Ownership. The Manufacturer is the sole and exclusive owner of, and holds all title and rights pertaining to, all intellectual property that concerns or relates to the Fluxergy EU Products, including their design, specifications, and manufacture. Customer is strictly prohibited from modifying, reverse engineering, or otherwise using the Fluxergy EU Products for any purpose or in any manner whatsoever outside of the Permitted Use expressly stated herein. Customer shall not (i) disassemble, decompile, reverse-engineer or prepare derivative works respecting any aspect of the Fluxergy EU Products, Customer shall not assert or claim in any judicial or regulatory proceeding, or in any filing or submission with any government body or authority, that any Modification to the Fluxergy EU Products are the intellectual property of Customer or any third party. “Modifications” means any modifications, subtractions, additions, improvements or changes to the Products, made or created by Customer, its affiliates or their respective contractors, including without limitation processes or procedures respecting the function, safety, efficacy, manufacturing or assembly thereof. “Intellectual Property” means all patents, patent applications, trademarks, copyrights, materials and other works that may be subject to copyright or any ancillary rights such as software (in form of source code and object code) and data base rights, trade secrets, and any other intellectual property, as well as all patentable and unpatentable inventions, ideas, know-how, concepts, object and source code, documentation, improvements, or discoveries.
7.2 Confidentiality. At all times, Customer shall keep secret and confidential all information relating to the Documentation, and the pricing and quotations provided by Fluxergy EU respecting the Products or any other information relating to the business of Fluxergy EU disclosed or obtained by Customer as result of performance of the Agreement (“Fluxergy EU Confidential Information”), and shall not use or disclose the same for any purpose other than the proper performance of the Agreement, the exercise of its rights or with the express prior consent of Fluxergy EU contained herein or otherwise obtained in writing on a case-by-case basis. The obligations of confidentiality and non-use under this Section do not extend to any Fluxergy EU Confidential Information that (a) was already known to the Customer, other than under an obligation of confidentiality, at the time of disclosure by Fluxergy EU, (b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the Customer, (c) becomes generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the Customer in breach of the Agreement, or (d) was disclosed to the Customer, other than under an obligation of confidentiality, by a third party who had no obligation to Fluxergy EU not to disclose such information, or (e) must be disclosed in response to a valid order by a court or governmental body or as otherwise required by law; provided that to the extent possible and legally permissible, Customer shall provide prompt prior written notice thereof to Fluxergy EU, and shall disclose only that portion of the Fluxergy EU Confidential Information that Customer is legally required to disclose, and shall disclose it only to those individuals that are legally required and authorized to access such Fluxergy EU Confidential Information.
7.3 Use of Marks. Except for labeling required under applicable laws, Customer is strictly prohibited from placing any name, brand, or trade markings of any kind on any Products. Violation of this clause is a material breach of the Agreement for which Fluxergy EU may (i) immediately terminate the Agreement, (ii) obtain return of the Products, (iii) obtain an injunction against Customer’s wrongful conduct, without proving irreparable harm or posting any bond, and (iii) all other damages and remedies available under applicable law.
8. SOFTWARE LICENSE; UPGRADE FEES
8.1 Software/Firmware License. Customer acknowledges and agrees that use of some Fluxergy EU Products requires access to associated firmware that must be downloaded onto Customer’s own computer (collectively, the “Software”) upon first use. The Software is owned by Manufacturer. Customer’s use of the Software is subject to its agreement to abide by all of the provisions of a separate License Agreement (herein so called) with Manufacturer that Customer will be required to assent and agree to before it is permitted for use. Refusal to agree to all the provisions of the License Agreement, or violation at any time of any of its provisions, shall give Fluxergy EU and/or Manufacturer the right to, at any time and without prior notice, revoke the License Agreement and terminate Customer’s ability to use the Fluxergy EU Products, without liability.
8.2. Software Updates and Update Fees. Customer acknowledges and agrees that the Software may be updated from time to time by Manufacturer as new tests are released by it, and each such upgrade may be at an additional cost to Customer. All such upgrades are optional if Customer only desires to use the tests released by Manufacturer as of the date of the Agreement, but will be required in the event Customer desires to use any new tests released by such entities.
9. APPLICATION SUPPORT; RELATED FEES.
Fluxergy EU will provide technical/application support by teleconference to Customer for the first 90 days at no charge (maximum 4 hours for the 1st month, 1.5 hours for each succeeding month). After 90 days, Fluxergy EU will charge its standard rates for such technical/application support.
10. PURCHASE PRICE; PAYMENT TERMS
10.1 Purchase Price for Products. As consideration for the Products, Customer shall pay to Fluxergy EU the purchase price set forth on the first page hereof, any Fluxergy EU provided quote, or on Fluxergy EU’s Purchase Order Acknowledgement (or comparable final acceptance) issued by Fluxergy EU to Customer (the “Purchase Price”). The Purchase Price is exclusive of sales or use taxes, ad valorem taxes, VAT, customs duties or fees, transportation charges, and insurance. Fluxergy EU’s invoice will reflect the Purchase Price and all such taxes, fees, and other charges. All monies due to Fluxergy EU are solely payable in Euros.
10.2 General Payment Terms. Payment terms are as indicated on the first page hereof, or in any separate Fluxergy EU quote (whichever is dated later). Absent any stated payment terms in such locations, payment terms are net 30. Fluxergy EU reserves the right to at any time require other payment terms, including without limitation, payment in advance and/or letters of credit. Customer is not entitled to set-off, abate or otherwise reduce any payments owing to Fluxergy EU. Payments are deemed made by Customer when actually received by Fluxergy EU in immediately available funds. Interest shall accrue on any unpaid invoice balances at a rate of 1.5% per month (or at a rate of 9 percentage points over the current base rate in accordance with § 247 of the German Civil Code (BGB), whichever is greater), from and after the due date. Fluxergy EU shall have the right, among other remedies, to terminate any current Products sale, stop Products in transit or suspend further performance under the Agreement in the event Customer fails to make any payment when due.
11. INDEMNIFICATION
Fluxergy EU shall indemnify, defend and hold Customer harmless from and against any claims, demands, causes of action or liability asserted by any third party based upon a claim that the sale or use of the Fluxergy EU Products for Permitted Uses infringes or misappropriates the patent, trademark or other intellectual property rights of such third party. Customer shall indemnify, defend and hold Fluxergy EU and Manufacturer harmless from and against any claims, demands, causes of action or liability asserted by any third party and arising from or related to (a) the use or operation of the Products for purpose other than their Intended Use, (b) the conduct by Customer of its business and operations, (c) resale, use or operation of the Products in violation of any applicable laws or regulations, and (d) any breach of any representation or warranty made by Customer in the Agreement.
12. LIMITATION OF LIABILITY
Fluxergy EU is liable without limitation for damages caused by injury to life, body or health and for other damages caused by intent or gross negligence on the part of Fluxergy EU, its employees, executives, legal representatives or vicarious agents. In the event of a slightly negligent breach of an essential contractual obligation, the liability of Fluxergy EU is limited to the amount of damage which is foreseeable and typical at the time of the conclusion of the contract according to the type of business regulated by the Agreement. Material contractual obligations are those obligations which form the basis of the Agreement, are decisive for the achievement of the purpose of the Agreement and on the fulfilment of which the Customer may rely. No Mandatory statutory provisions, in particular the provisions of the Product Liability Act and the German Medical Preparations Act, shall remain unaffected. Any liability of Fluxergy EU for damages to the Customer (irrespective of the legal nature of the claim, whether in contract, tort or otherwise) in excess of the foregoing is excluded. The above limitation of liability also applies to the personal liability of employees, officers, legal representatives and agents of Fluxergy EU.
13. EXPORT CONTROLS
Each party shall comply with all applicable laws and regulations regarding the import and export of the Products. Customer assumes all liability and responsibility for ensuring shipments of Products comply with applicable import laws and regulations and agrees not to import, divert, re-sell, export, or re-export any Products contrary to such laws and regulations. Customer shall not export or re-export any Products from the above stated “ship to” location without the prior written consent of Fluxergy EU, which may be granted or denied in its sole discretion.
14. LIMITED WARRANTY
14.1 Limited Warranty. Subject to the other provisions of this Agreement, Fluxergy EU warrants (gewährleistet) that at the time of transfer of risk, any Product sold by Fluxergy EU will (i) in all material respects conform to the Specifications and the agreed quality or other product features, (ii) be free from defects in materials or workmanship, (iii) materially perform at the standards of quality consistent with the Permitted Uses, and (iv) to the extent not otherwise agreed in writing, meet performance standards consistent with the standards of performance then prevailing in the applicable testing industry. Customer acknowledges and agrees that the Products are only suitable for the Permitted Uses.
14.2 Inspection Obligation. Customer’s obligation to inspect the Products pursuant to Section 5 hereof shall remain unaffected by the provisions of this Section 14.
14.3 Remedies. In case of a defect, Customer is entitled at Fluxergy EU’s discretion either to have the defect remedied or to receive a defect-free replacement in line with the statutory provisions. In case of failure of replacement delivery or rectification of defects, the Customer is entitled at his discretion to demand a reduction in the purchase price or to be released from the Agreement relating to such defective Products in line with the statutory provisions. Fluxergy EU’s liability for damages is subject to the provisions of Section 12 hereof
14.4 For all products manufactured by Fluxergy, Inc., all warranty claims shall become time-barred twelve months from the date of delivery of the product (the “Warranty Period”). However, the period of limitation for willful intent or gross negligence, or due to a culpable injury of life, body or health, shall be two years from the date of delivery of the product. Prior to expiration of the Warranty Period, Customer may at its option extend the term of the Warranty Period by one additional year by paying Fluxergy Europe GmbH a warranty extension fee of €1.000.
For any other products distributed and/or sold by Fluxergy Europe GmbH, the manufacturer’s specific warranty shall apply—please see the documentation that came with the product at issue, or go to such manufacturer’s website, to see such manufacturer’s specific warranty polices
14.5 Excluded Defects. Notwithstanding the foregoing, Fluxergy EU shall have no obligation to Customer under this warranty to the extent that a defect results from: (i) Customer’s use of such Product in a manner inconsistent with the Documentation; (ii) alterations or modifications made to such Product (or attempted to be made) by Customer; (iii) Customer’s failure to use corrections or enhancements made available by Fluxergy EU, (iv) Customer’s self-repair attempts, or (v) non-conformities to the extent they are attributable to goods and services of third parties.
14.6 No Other Warranties. Except as expressly set forth in this Section, FLUXERGY EU MAKES NO FURTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY WITH RESPECT TO THEIR FITNESS FOR A PARTICULAR PURPOSE.
15. DEFAULT
Any of the following is an “Event of Default” under the Agreement: A party (a) materially breaches any of its obligations under the Agreement and fails to cure the breach within the applicable cure period (or within twenty [20] days if no cure period is stated), or (b) ceases conducting business in the normal course, becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, or avails itself of or become subject to any proceeding under any bankruptcy law or other statute of any jurisdiction relating to insolvency or the protection of rights of creditors.
Upon the occurrence of an Event of Default, the non-defaulting party may immediately terminate this Agreement and all active/outstanding Purchase Order(s) by giving written notice to the defaulting party. If Customer is in default, Fluxergy EU may cancel any Products shipment then in transit, and may apply early termination charges and fees to any canceled Purchase Order to recoup its damages. The rights and remedies provided to the parties in this provision shall not be exclusive and are in addition to other rights and remedies provided by these terms and conditions or by law or in equity.
16. EXCUSE OF PERFORMANCE
Fluxergy EU shall not be liable for delays in performance or for non-performance due to acts of God; pandemics or epidemics; war; fire; flood; weather; sabotage; strikes or labor disputes; civil disturbances or riots; governmental restrictions, allocations, laws, regulations, orders or actions; unavailability of or delays in transportation; inability to secure raw materials at reasonable cost; default or delay of suppliers; acts of Customer; or any other events or causes beyond Fluxergy EU’s reasonable control (each, a “Force Majeure Event”). Product deliveries may be suspended for an appropriate period of time or canceled by Fluxergy EU upon notice to Customer due to a Force Majeure Event.
In the event of a shortage in available Products for any reason, including lack of manufacturing capacity or a Force Majeure Event, Fluxergy EU shall have the right, in its sole discretion, to apportion deliveries among its various customers in such manner as Fluxergy EU deems reasonable and equitable, without liability to Customer for any failure of performance which may result therefrom.
17. PRODUCTS STORAGE AND USE CONDITIONS
Customer agrees to store and use the Products in accordance with their Documentation, and in a location that is shielded from inclement weather (including rain, snow or high winds), and which is free of excessive dust, humidity in excess of 80%, temperatures below freezing or higher than 30° Celsius, and vibrations.
18. REPAIRS
Only Manufacturers may perform or attempt to perform repairs of Fluxergy EU Products. Customer shall not attempt to repair any Fluxergy EU Products without first notifying Fluxergy EU, receiving written instructions from Fluxergy EU, and having Fluxergy EU’s prior written approval of any such actions. Any authorized repairs to the Fluxergy EU’s Products by Customer must be performed in compliance with Fluxergy EU’s instructions and applicable laws. Any unauthorized repairs to the Products, or failure to follow Fluxergy EU’s instructions, will result in the warranty set forth in the Agreement being immediately voided.
19. NO LIENS
Until paid for in full, Customer shall (i) keep the Products free and clear of all levies, liens and encumbrances, and (ii) cause the immediate removal of any levy, lien or encumbrance upon written notice thereof from Fluxergy EU or otherwise becoming aware of the existence of the levy, lien or encumbrance.
20. ASSIGNMENT; COUNTER CLAIMS
20.1 Assignment. Customer shall not assign or otherwise transfer its rights or interest, or delegate any of its duties, under the Agreement, by operation of law or otherwise, without the prior written consent of Fluxergy EU, and any such assignment without such consent shall be null and void and deemed a breach of the Agreement.
20.2 Counter Claims. Customer shall only be permitted to set off a counterclaim against Fluxergy EU if Customer’s counterclaim is undisputed or has been legally adjudicated; the same applies to Customer’s exercise of any rights to refuse performance or rights of retention against Fluxergy EU. The exercise of any right of retention by Customer also requires that its counterclaim is based on the same contractual relationship.
21. GOVERNING LAW; PLACE OF LEGAL PROCEEDINGS; LEGAL FEE
This Agreement shall be governed by and construed in accordance with the substantive laws of the Federal Republic of Germany. The United Nations Convention on the International Sales of Goods shall not apply to the transactions contemplated by this Agreement. Any complaint, action or proceeding concerning this Agreement or any breach hereof shall be exclusively brought by the Parties in the courts of the German State of Hesse, and each Party hereby consents to the exclusive jurisdiction of such courts. If any action or proceeding is commenced to enforce or interpret the terms of this Agreement, the substantially prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
22. MISCELLANEOUS PROVISIONS
The section headings contained herein are for the convenience of the Parties only, and shall not have any substantive effect. The Agreement is written and executed solely in the English language for the parties’ convenience, and its interpretation shall be governed by the English language. The Agreement constitutes the entire understanding of the Parties with respect to the subject matter stated therein, and the Parties acknowledge and agree there are no oral agreements or other understandings that are not expressly stated therein. The Agreement, including this written form requirement, cannot be modified or amended, or any term waived, except in a writing signed by authorized representatives of both Parties. Waiver by any Party of a breach of any provision of the Agreement shall not operate or be construed as a waiver of any subsequent breach. If any provision in this Agreement is declared void or unenforceable, the other provisions herein shall remain in full force and effect. The Parties shall promptly replace an invalid or unenforceable provision or contractual gap with a valid and enforceable provision that comes as close as possible to the economic purpose of the invalid or unenforceable provision.
23. PERSONAL DATA: COLLECTION, USE, STORAGE, AND OTHER PROCESSING
CUSTOMER ACKNOWLEDGES AND AGREES THAT IN ORDER TO USE FLUXERGY EU PRODUCTS, IT AND ITS EMPLOYEES MAY BE REQUIRED TO PROVIDE, AND IF PROVIDED FLUXERGY EU WILL BE ABLE TO STORE, ACCESS, USE, AND OTHERWISE PROCESS, CERTAIN PERSONAL DATA SUCH AS THE NAME, ADDRESS, EMAIL ADDRESS, PHONE NUMBER, ETC. OF CUSTOMER AND THE EMPLOYEES OF CUSTOMER WHO WILL USE FLUXERGY EU PRODUCTS. CUSTOMER HEREBY CONSENTS AND GRANTS FLUXERGY EU THE RIGHT TO COLLECT, STORE, ACCESS, USE, AND OTHERSWISE PROCESS ALL SUCH PERSONAL DATA, SOLELY FOR PURPOSES OF (I) ENABLING USE OF THE PRODUCTS, (II) COMMUNICATING WITH CUSTOMER REGARDING MATTERS THAT CONCERN THE OPERATION OR PERFORMANCE OF THE PRODUCTS, (III) COMPLYING WITH APPLICABLE LAWS (E.G., POST-MARKET SURVEILLANCE REQUIREMENTS), AND/OR (IV) IMPROVING THE PERFORMANCE OF THE PRODUCTS. FLUXERGY EU WILL NOT SELL THE PERSONAL DATA OF CUSTOMER OR ITS EMPLOYEES, OR USE IT FOR MARKETING OR ANY OTHER PURPOSES EXCEPT AS SET FORTH ABOVE. CUSTOMER MAY AT ANY TIME REVOKE ITS CONSENT AND GRANT OF RIGHTS TO FLUXERGY EU REGARDING CUSTOMER’S PERSONAL DATA BY NOTIFIYING FLUXERGY EU OF SUCH REVOCATION VIA EMAIL AT COMPLIANCE@FLUXERGY-EUROPE.COM, AND FLUXERGY EU WILL PROMPTLY DELETE SUCH PERSONAL DATA FROM ITS SYSTEMS. HOWEVER, SUCH REVOCATION SHALL ALSO CONSTITUTE A TERMINATION OF THE AGREEMENT, AND UPON SUCH TERMINATION CUSTOMER MAY NO LONGER BE ABLE TO USE FLUXERGY EU PRODUCTS, AND NOTWITHSTANDNG SUCH INABILITY TO USE THE SAME, CUSTOMER SHALL NOT BE ENTITLED TO ANY REFUND, REBATE, DAMAGES OR OTHER RELIEF FROM FLUXERGY EU.
24. COUNTERPARTS; SIGNATURES
The documents comprising the Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Electronic or computer verified signatures, or electronic copies of physical signatures, shall be fully binding upon the Parties. Each of the persons executing the documents comprising the Agreement on behalf of their respective Party warrants and represents that he/she is the legal or authorized representative of such Party, and has full right and legal authority to execute such documents on behalf of such Party and such Party’s affiliates.