Canduct Industries, Ltd.
These terms (the “Agreement”) govern the sale of Products by Canduct Industries, Ltd. (“Canduct”), to the purchaser (“Customer”). As used in this Agreement, “Products” means all products, components, parts, accessories, materials, and other items Canduct agrees to provide. In the event of any conflict, the order of precedence shall be as follows: (i) the terms set forth in Canduct’s proposal, including any incorporated technical specifications or commercial terms; (ii) this Agreement; (iii) any written addenda or amendments agreed by the parties; and (iv) the Customer’s purchasing document. Additional or conflicting terms are not binding on Canduct unless signed by Canduct. Canduct's failure to object to Customer's additional or conflicting terms does not waive any provision of this Agreement.
Unless otherwise specified in writing by Canduct, payment shall be net cash, without offset, due within thirty (30) days from the date of the invoice by wire transfer to the account designated in the proposal. Overdue amounts are subject to a late charge equal to the lesser of 1.5% per month or the maximum legal rate, plus attorneys’ fees and court costs for collection. Canduct may suspend performance due to Customer’s default, non-payment, or in the event Canduct’s performance is prevented or hindered due to reasons beyond its control.
Customer is responsible for all taxes, duties, fees, and charges related to the Agreement or its performance, except those based on Canduct’s income, net worth, property, or employment. Prices exclude federal, state, or local taxes such as property, license, privilege, sales, use, excise, or gross receipts taxes, whether current or future. Customer agrees to pay or reimburse any such taxes required to be paid or collected by Canduct or its suppliers. Canduct may apply any tariff surcharge identified in its proposal, quotation, order acknowledgment, or invoice to reflect tariffs, duties, trade restrictions, or similar governmental measures affecting the cost of supplying the Products. If exempt or holding a direct payment permit, Customer must provide valid documentation acceptable to the relevant authorities at the time of order.
Unless otherwise specified in Canduct’s proposal, Products shall be delivered FCA (Incoterms 2020) at the location identified in Canduct's proposal. Customer shall be responsible for all import duties, customs clearance, tariffs, taxes, broker fees, and other governmental charges imposed after delivery under the applicable Incoterm. All performance or completion dates are estimates, and Canduct is not liable for any loss or expense arising from failure to meet them. Canduct may, at its discretion, make partial or advance shipments. If delivery is delayed due to Customer, a third party outside Canduct’s control, or a Force Majeure event, Canduct may store the Products at the Customer’s risk and expense, and delivery will be deemed complete. Title to Products shall remain with Canduct until full payment is received. Risk of loss shall pass to the Customer upon delivery of the Products in accordance with the applicable Incoterm. If delivery is delayed due to Customer or other causes outside Canduct’s control, risk of loss shall remain with the Customer, and such Products shall be deemed outside Canduct’s care, custody, and control. Products may not be returned without Canduct’s prior written consent and are subject to Canduct’s specified terms. Claims for shortages or delivery errors must be submitted in writing to Canduct within ten (10) days of delivery. Claims for post-delivery damage must be submitted by Customer directly to the common carrier. The Products shall be deemed accepted unless Customer provides written notice of non-acceptance within three (3) days following delivery of the Products. Minor defects or deviations that do not affect the Products’ overall CANDUCT functionality or performance are not grounds for rejection.
For Customer-requested scope changes affecting performance, Canduct is entitled to a time extension, price increase for all additional costs, and written agreement on adjustments before implementation. Canduct may, at its expense and within its sole discretion, modify the Products as necessary to conform the Products to the applicable specifications. If Customer objects to such changes, Canduct is relieved of its obligation to meet the specifications to the extent affected by the objection.
Canduct is not liable for any loss, damage, delay, or failure to perform due to events beyond its reasonable control, including but not limited to acts of war (declared or undeclared), Acts of God, epidemics or pandemics (including COVID-19 or any variants), outbreaks, fire, strikes, labor disputes, severe weather, governmental actions or omissions (including those of Customer), compliance with laws or regulations, insurrection, riots, embargoes, transportation delays or shortages, or inability to obtain labor, materials, or manufacturing facilities from usual sources, including delays or defects in performance by suppliers or subcontractors due to any such causes. If such an event continues for an aggregate of 180 days, Canduct may terminate the purchase order. Delivery timelines will be extended by the delay plus a reasonable recovery period, and prices adjusted for resulting costs. A force majeure event does not entitle Customer to delay or withhold payment.
Customer may suspend performance of this Agreement, in whole or in part, at any time by written notice. Canduct shall be entitled to an equitable adjustment in schedule, price, and other impacted terms, including compensation for costs incurred and disruption. Canduct may suspend performance upon notice if: (a) Customer defaults; (b) payment is not made when due; or (c) performance is hindered by events beyond its control. If Customer’s suspension exceeds sixty (60) cumulative days, Canduct may terminate the Agreement as if cancelled for convenience.
Customer may terminate for default only if, within thirty (30) days of written notice specifying the default, Canduct fails to initiate and diligently pursue correction of the specified default. Customer may cancel any order for convenience with prior written notice and payment of the cancellation schedule. If there is no cancellation schedule, the Customer will be liable for termination charges including, but not limited to, all costs and expenses incurred and related to the order prior to the termination date, all termination-related expenses, and a fixed sum equal to ten percent (10%) of the final total price for scheduling disruption, planned production, and other indirect costs. If, prior to delivery, Canduct deems Customer’s financial condition unsatisfactory, it may demand advance payment, require payment security, or terminate the order with reasonable cancellation charges.
Each party (“Recipient”) shall keep confidential this Agreement and any documents, data, drawings, software, or other information —whether oral, written, or in any form —disclosed by the other party (“Discloser”) and marked, identified, or which would reasonably be interpreted to be confidential (“Confidential Information”). Confidential Information shall not be published, disclosed, or shared with any third party without the Discloser’s prior written consent. The Recipient shall impose equivalent confidentiality obligations on its employees, agents, and contractors. Unless otherwise agreed in writing, all rights, title, and interest in any inventions, developments, improvements, or modifications related to the Products, as well as any design, manufacturing drawings, or technical information provided to Customer, shall remain exclusively with Canduct. These materials may not be copied, disclosed, or used for any purpose other than the operation and maintenance of the Products.
Canduct shall, at its own expense, defend any action against Customer alleging the Products, or the use of the Products to practice any process for which such Products are specified by Canduct (a “Process”), directly infringes a valid U.S. patent, and pay all damages and costs
CANDUCT awarded in such action, provided that Customer promptly notifies Canduct in writing, provides all necessary assistance, and grants Canduct full control over the defense and any settlement. If the Products or the use of a Process is found to infringe, or is enjoined, Canduct shall, at its option and expense: (i) secure Customer’s right to continue using the Products or Process; (ii) modify or replace the Products or Process with non-infringing alternatives; (iii) with Customer’s assistance, modify the Products or Process to make it non-infringing; or (iv) remove the Products and refund the portion of the price allocable to the infringing item. This indemnity shall not apply to: (a) Products or Processes modified by Customer or combined with non-Canduct products or processes; (b) Products or Processes designed by Customer; (c) products manufactured using the Products or Process; (d) patents issued after the effective date of Canduct’s proposal; or (e) any action settled or otherwise resolved without Canduct’s prior written consent. If Customer modifies the Products or Processes, combines them with other products or processes not supplied by Canduct (except where Canduct is a contributory infringer), or uses them to perform a process or produce an article not furnished by Canduct, and such use results in a claim against Canduct, Customer shall defend and indemnify Canduct to the same extent that Canduct would indemnify Customer under this clause.
THE FOREGOING STATES THE ENTIRE LIABILITY OF CANDUCT, ITS AFFILIATES, SUBCONTRACTORS, AND SUPPLIERS FOR ANY PATENT INFRINGEMENT.
Canduct warrants that the Products will be free from defects in material and workmanship at the time of delivery. The applicable warranty period for Products is thirty (30) days from shipment. If a defect is discovered during the warranty period and promptly reported in writing to Canduct, Canduct shall, at its option, (a) repair, refurbish, or replace the nonconforming Products, or (b) refund the portion of the price allocable to the nonconforming Products. If the repaired, or replaced item again fails to conform and written notice is provided within the original warranty period or within thirty (30) days of such repair, or replacement—whichever is later—Canduct will repair or replace the nonconforming Products. In no event shall the warranty period extend beyond thirty (30) days after the original warranty period. Canduct is not responsible for access to nonconforming Products, including disassembly or reassembly of non-Canduct-supplied Products, or transportation to or from any repair facility — all of which are at Customer’s risk and expense. Canduct is not liable for Products that have been (i) improperly repaired or altered, (ii) modified or combined with other Products, (iii) misused, neglected, or damaged by accident or force majeure, (iv) used contrary to Canduct’s instructions, (v) made from Customer-provided materials or designs, or (vi) subject to ordinary wear and tear, including abrasion or other physical deterioration. Products manufactured by third parties are warranted only to the extent of the original manufacturer’s warranty, and only the remedies provided by that manufacturer shall apply.
THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE AND CONSTITUTE CANDUCT’S ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY. ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY — INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR USAGE OF TRADE—ARE HEREBY DISCLAIMED. THE REMEDIES SET FORTH HEREIN ARE CUSTOMER’S EXCLUSIVE REMEDIES AND CANDUCT’S ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY.
To the fullest extent permitted by law, Canduct’s total aggregate liability for any matter arising out of or related to this Agreement shall not exceed the price of the purchase order giving rise to the claim. Canduct is not liable —under any theory of recovery, including but not limited to indemnity, breach of contract, warranty, statutory duty, equity, tort (including but not limited to negligence or strict liability), or otherwise —for any loss of use; loss, deterioration, or corruption of data; loss of profit or revenue; loss of production or power (including replacement or purchased power or hydrocarbons); loss of goodwill or
CANDUCT reputation; increased operational costs; downtime or interruption; loss of contracts; cost or loss of capital, financing, or banking interests; loss of anticipated savings or profit; loss of business or business opportunities; incurrence of additional financial or loan charges; or any special, incidental, punitive, indirect, or consequential damages of any kind. Canduct’s liability shall expire one year after the end of the warranty period. Canduct shall not be liable for any advice, recommendations or other support provided outside the express scope of the Agreement. These limitations and exclusions apply equally to Canduct’s affiliates, subcontractors, and suppliers of any tier and shall survive termination or expiration of this Agreement.
Customer shall comply with all applicable local, state, national, and international laws, statutes, ordinances, rules, orders, regulations, and codes in connection with the application, operation, use, maintenance, and disposal of the Products. This includes, without limitation, laws relating to environmental protection, data privacy, export control, health and safety, and product disposal. Customer is solely responsible for obtaining and maintaining all licenses, permits, and approvals required for lawful use and operation of the Products. Each party shall comply with all applicable antitrust, competition, anti-bribery, and anti-corruption laws in connection with its activities under this Agreement. Neither party shall be liable for any claims, damages, penalties, or other liabilities arising out of or related to any actual or alleged violations of such laws by the other party or any third party.
This Agreement is governed by the laws of the State of New York, excluding its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Any dispute, claim, or cause of action related to this Agreement must be exclusively filed in the state courts of New York or the United States District Court for the Southern District of New York. The Parties further irrevocably waive their right to a jury trial.
Notwithstanding any other provision of this Agreement, if at any time after the submission of Canduct’s proposal there is any enactment, amendment, repeal, or new interpretation or application of any law, ordinance, statute, rule, regulation, order, code, by-law, trade regulation, tariff, import or custom duties, fees or rates, quota, or other trade-related measure, or decree (including but not limited to changes in work permits, visa requirements, taxation, import/export restrictions, or other governmental requirements) that affects Canduct’s performance of this Agreement, then Canduct shall be entitled to an equitable adjustment to the Agreement. Such adjustment may include extending the delivery date, increasing the Agreement price, or modifying any other Canduct obligation under this Agreement as reasonably necessary to address the impact of the change in law.
All notices must be in writing and sent to Canduct at sales@canduct.com and 491 McClurg Road, Boardman, OH, 44512, or any updated address provided by Canduct in writing. Notices may be delivered by post, courier, email, or fax, and are deemed received upon actual receipt, or on the next business day if received outside business hours.
The Products provided by Canduct are not intended for use in any nuclear facility or activity. Customer guarantees that neither it nor any third party will use the Products for such purposes without Canduct’s prior written consent. Any unauthorized nuclear use releases Canduct, its parent, affiliates, suppliers, and subcontractors from all liability for resulting nuclear damage, injury, or contamination. Customer agrees to indemnify and hold harmless Canduct and its related entities against any such liability. If Canduct consents to such use, Customer will be subject to additional terms and conditions deemed necessary by Canduct to address nuclear liability risks.
CANDUCT The Parties shall comply at all times with all applicable Trade and/or Export Control Laws, including but not limited to the laws, regulations, and orders of the United States, Switzerland, the European Union, and any other jurisdiction relevant to the performance of this Agreement. Trade and/or Export Control Laws shall include, without limitation, regulations governing the export, re-export, transfer, disclosure, or release of goods, software, technology, services, or technical documentation. If Customer resells any Products or uses it at a third-party facility, Customer shall either (i) indemnify and defend Canduct against any third-party claims or liabilities exceeding the limitations set forth in this Agreement, or (ii) ensure that such third party or end user agrees to be bound by those limitations for Canduct’s benefit. Customer shall ensure that any third parties further down the commercial chain, including resellers or end users, comply with the same limitations and obligations. Customer represents and warrants that the Products and any “direct product” thereof are intended solely for civil use and shall not be used, directly or indirectly, in connection with the design, production, use, or storage of chemical, biological, or nuclear weapons, or carrier systems. Use for military or nuclear applications is strictly prohibited without Canduct’s prior written consent. Upon request, Customer shall provide a Letter of Assurance and End-User Statement acceptable to Canduct. The Products or related technology shall not be sold, leased, transferred, exported, or re-exported except in full compliance with applicable Export Control Laws. If required, Canduct shall apply for a U.S. export license upon receiving all necessary documentation from Customer, which must be provided promptly following order acceptance. Any delay in licensing shall suspend Canduct’s performance. Canduct does not guarantee the issuance, continued validity, or availability of any export license or authorization and shall not be liable for any delay, denial, revocation, or modification thereof. In such cases, Canduct may cancel this Agreement without liability. In the event of Customer’s non-compliance with this clause, Canduct shall have the right to terminate this Agreement immediately.
If any provision of this Agreement is deemed invalid or unenforceable, in whole or in part, it will not impact the validity or enforceability of the other provisions, which will be interpreted as if the invalid or unenforceable part never existed.
Any assignment of this Agreement or of any rights or obligations under this Agreement without the prior written consent of Canduct shall be void.
This Agreement represents the complete understanding between the parties regarding its subject matter, superseding all other agreements, understandings, representations, or warranties unless expressly stated herein.
The provisions relating to Confidentiality and Intellectual Property, Limitation of Liability, Governing Law and Dispute Resolution, and Export Control and Resale shall survive the termination or cancellation of this Agreement.
Any waiver of strict compliance with any provision of this Agreement must be in writing. The failure of either party to enforce any provision on one occasion shall not be deemed a waiver of its right to enforce the same or any other provision thereafter.
Headings used in this Agreement are for convenience only and shall not affect the interpretation of any provision.
