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VES-ARTEX TERMS AND CONDITIONS OF SALE

PURPOSE; RESELLERS. 
These Terms and Conditions of Sale (“Terms” or “Agreement”) apply to all purchases of products (collectively the “Products”) from VES-Artex (which includes VES Environmental Solutions, Inc. (“VES”) and VES-Artex Systems Canada, ULC (“VES-Artex Canada”) - if you are using services or products from VES then VES-Artex refers to VES, if you are using services or products from VES-Artex Canada then VES-Artex refers to VES-Artex Canada, if you receive products and services from both VES-Artex Canada and VES then VES-Artex refers to both). VES-Artex is also referred to herein as “Seller.”  Any quotation, order acknowledgement, proposal or other form submitted to a prospective purchaser of Products (the “Buyer”) is not an acceptance of any purchase order, acknowledgement or other form submitted by the Buyer, but instead is an offer or counter-offer by Seller to sell Products to Buyer on these Terms.  Acceptance of such offer/counter-offer is limited to, and Seller’s willingness to sell Products to Buyer is expressly conditioned upon, Buyer’s acceptance of these Terms. Seller objects to any additional or different terms contained in any purchase order, acknowledgement, request for quotation or other communication provided by Buyer to Seller.  Order placement or acceptance of Products shipped constitutes Buyer’s acceptance of these Terms. 

If a reseller or other third party implementor, integrator, or consultant assists in the installation or implementation of the Products or provides any other services or products in connection with the Products, (i) those third parties are not Seller’s agents or employees; (ii) Seller is not responsible or liable in any way for their actions, services, and products, including the use of those services and products with the Products or the failure to properly install or implement the Products; (iii) the ultimate purchaser is solely responsible for evaluating the appropriateness of those third party services and products; (iv) Seller has no liability or responsibility if the services or products of those third parties in any way impacts or impairs any ultimate purchaser’s ability to use the Products; and (v) the ultimate purchaser’s sole and exclusive remedy in the event of any failure by those third parties will be those rights, if any, reflected in Buyer’s contract with such third parties.

2.  PRICE. 
Prices are subject to change upon notice sent to Buyer at any time before the Buyer has accepted the Terms. Prices are also subject to change by Seller at any time, to reflect any increase in Seller’s cost of raw materials (e.g., steel, aluminum, electronic components) incurred by Seller after issuance of the Terms. All stated prices are exclusive of any taxes, fees, duties, and levies, however designated or imposed, including but not limited to value-added and withholding taxes that are levied or based upon the amounts paid under this Agreement (collectively, “Taxes”). Any Taxes related to the Products are the responsibility of Buyer (excluding taxes based on Seller’s net income), unless Buyer presents an exemption certificate acceptable to Seller and the applicable taxing authorities. If possible, Seller will bill Taxes as a separate item on the invoice presented to Buyer. If any exemption certificate presented by Buyer is held to be invalid, then Buyer will pay Seller the amount of the Tax and any penalties and interest related thereto.

3.  PAYMENT. 
Credit terms are provided at the sole discretion of Seller; Buyer will provide all Seller requested information to establish such credit terms and, where credit terms are granted, Buyer will pay all invoiced amounts within thirty (30) days following the date of Seller’s invoice. Unpaid amounts will accrue interest at a rate equal to the lesser of one and one-half percent (1.5%) per month and the maximum rate permitted by applicable law, from due date until paid, plus Seller’s reasonable costs of collection. Seller reserves all other rights granted to a seller under the Uniform Commercial Code (“UCC”) for Buyer’s failure to pay for the Products or any other breach by Buyer of these Terms. In addition to all other remedies available to Seller (which Seller does not waive by the exercise of any rights hereunder), Seller may suspend the delivery of any Products if Buyer fails to pay any amounts when due and the failure continues for five (5) days following Buyer’s receipt of notice thereof. Buyer may not withhold payment of any amounts due and payable as a set-off of any claim or dispute with Seller, regardless of whether relating to Seller’s breach, bankruptcy, or otherwise.

4.  DELIVERY; SHIPPING. 
(a) Seller will deliver the Products within a reasonable time after receiving Buyer’s purchase order, subject to their availability. The delivery date provided by Seller for the Products is only an estimate and is based upon prompt receipt of all necessary information from Buyer. If Buyer causes Seller to delay shipment or completion of the Products, Seller will be entitled to any and all extra costs and expenses resulting from the delay. Seller will not be liable for any delays, loss, or damage in transit, and failure to deliver within the time estimated will not be a material breach of contract on Seller’s part.

(b) Unless otherwise agreed in writing by the parties, Seller will deliver the Products F.O.B. shipping point, using Seller’s standard methods for packaging and shipping. Buyer shall take delivery of the Products within three (3) days of when Seller receives notice that the Products are available at the shipping point. If Buyer fails to take delivery of any of the Products within this three (3) day period, or if Seller is unable to make the Products available at the shipping point on the delivery date because Buyer has failed to provide appropriate instructions, documents, licenses, or authorizations, then: (i) the Products will be deemed to have been delivered to Buyer; and (ii) Seller, at its option, may store the Products until Buyer takes possession of them, at which time Buyer will be liable for all costs and expenses resulting from the failure (including but not limited to the cost of storage and insurance). Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer will pay for the units shipped whether the shipment is in whole or partial fulfillment of the Agreement. Buyer is responsible for obtaining any import licenses and other consents required for a Product shipment at its own expense and will provide the licenses and consents to the Seller before shipment.

(c) Seller will not be liable for any non-delivery of the Products to the shipping point, unless Buyer gives written notice to Seller of the non-delivery within five (5) days following the date that Buyer would, in the ordinary course of business, have received the Products. Seller’s liability for any non-delivery of the Products will be limited to replacing the Products within a reasonable time or adjusting the invoice for the Products to reflect the actual quantity delivered.

5.  RISK OF LOSS; TITLE. 
(a) Risk of loss or damage passes to Buyer upon Seller’s delivery to the carrier at the shipping point, regardless of who selects the carrier. 

(b) Title passes to Buyer upon Seller’s delivery to the carrier at the shipping point, regardless of who selects the carrier.

6.  CANCELLATION. 
Cancellation or modifications of all or part of any order are subject to Seller’s prior written consent in each instance. If cancellation or modification is allowed, Buyer agrees to pay to Seller all expenses incurred and damage sustained by Seller on account of the cancellation or modification, plus a reasonable profit.

7.   INSPECTION; REJECTION OF PRODUCTS. 
(a) As used in this Section, “Nonconforming Products” means only the following: (i) the items shipped are different from those identified in the order; or (ii) the labels or packaging of the items incorrectly identifies them. Buyer will inspect the Products within five (5) days following receipt thereof (the “Inspection Period”). The Products will be deemed accepted at the end of the Inspection Period unless Buyer notifies Seller in writing of any Nonconforming Products and furnishes Seller with written evidence or other documentation reasonable required by Seller.

(b) If Buyer timely and properly notifies Seller of any Nonconforming Products, then Seller will either, in its sole discretion, (i) replace the Nonconforming Products with conforming Products, label, or packaging or (ii) credit or refund the purchase price for the Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer. At Seller’s request, Buyer will dispose of the Nonconforming Products or return the Nonconforming Products to Seller at Seller’s expense. Upon receipt of the Nonconforming Products, Seller will promptly refund the monies owed or ship the replacement Products to the Delivery Location at Seller’s expense, with Seller retaining the risk of loss until delivery.

(c) Buyer acknowledges and agrees that the remedies set forth in this Section 7 are Buyer’s exclusive remedies, and Seller’s sole liability, for the delivery of Nonconforming Products, and except as set forth in this Section 7, Buyer has no right to return the Products to Seller without Seller’s written authorization.

8.  TERMINATION. 
In addition to any other remedies that Seller may have, 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 the failure continues for five (5) 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, receivership, reorganization or assignment for the benefit of creditors.

9.  GOVERNMENT USE. 
If a Product is provided to any department, agency, or instrumentality of the United States Government (“U.S. Government”), the following provisions shall apply (and Buyer shall ensure that the following provisions are included in the applicable end user agreement): As defined in Federal Acquisition Regulation (“FAR”) 2.101, Department of Defense FAR Supplement (“DFARS”) 227.7202 and DFARS 252.227-7014(a)(1), all Software and accompanying documentation provided in connection with this Agreement are “commercial products,” “commercial services,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFARS 227.7202 and FAR 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. Buyer will ensure that each copy used or possessed by or for the government is labeled to reflect the foregoing.

10.  EXPORT. 
Buyer agrees to comply with all export laws and restrictions and regulations of the Department of Commerce or other United States or foreign agency or authority, and not to export, or allow the export or re-export of any Product or any direct product thereof in violation of any such restrictions, laws or regulations, or to the People’s Republic of China or any Group Q, S, W, Y or Z country specified in the then current Supplement No. l to Section 770 of the U.S. Export Administration Regulations (or any successor supplement or regulations); Buyer shall obtain any necessary licenses and/or exemptions with respect to the export from the U.S. of all material or items deliverable by Seller and shall demonstrate to Seller compliance with all applicable laws and regulations prior to delivery thereof by Seller.

11.  WARRANTY.
VES-Artex’s Warranties can be found here for VES-branded Products and here for Artex-branded Products and may be amended from time to time.

12.  INDEMNIFICATION. 
(a) Buyer will defend, indemnify, and hold harmless Seller and its parent company, their respective subsidiaries, affiliates, successors, and assigns and their respective directors, officers, shareholders, and employees from and against any loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, fees (including import and export customs fees), or expense (including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers)  arising out of or occurring in connection with the negligence or willful misconduct of Buyer or its employees or agents, including but not limited to: (i) any misuse or modification of the Products by Buyer or its employees or agents, (ii) any act (or failure to act) by Buyer or its employees or agents in contravention of any safety procedures or instructions that Seller provides to Buyer or its employees or agents, or (iii) the failure to store, install, operate, or maintain the Products in accordance with the Instructions.

(b) Seller will defend, indemnify, and hold harmless Buyer and its subsidiaries, affiliates, successors, and assigns and their respective directors, officers, shareholders, and employees from and against any claims, demands, causes of action asserted against the person seeking indemnity by any unaffiliated third party, and all liability or judgment awarded thereon, for injury, death or damage to tangible property arising out of or occurring in connection with the gross negligence or willful misconduct of Seller or its employees or agents, provided that the party seeking indemnity gives Seller prompt written notice of the claim, demand or cause of action so asserted and permits Seller to conduct and control the settlement or defense thereof, in its own name or, at its option, in the name of the indemnified party.

13.  INFRINGEMENT.
 (a) Seller will defend, at its own expense, any action against Buyer brought by a third party to the extent that the action is based upon a claim that the Products infringe any U.S. patents or copyrights, or misappropriate any trade secrets, of a third party. Seller will pay those costs and damages finally awarded against Buyer in any the action that are specifically attributable to the claim or those costs and damages agreed to in a monetary settlement of the action.

(b) The foregoing obligations are conditioned on Buyer (i) notifying Seller promptly in writing of the action, (ii) making no admission of liability and giving Seller sole control of the defense thereof and any related settlement negotiations, and (iii) cooperating and, at Seller’s request and expense, assisting in the defense.

(c) If the Products become, or in Seller’s opinion are likely to become, the subject of an infringement claim, Seller may, at its option and expense, either (i) procure for Buyer the right to continue using the Products, (ii) replace or modify the Products so that they become non-infringing, or (iii) accept return of the Products and refund Buyer the amounts actually paid by Buyer to Seller for the Products.

(d) Notwithstanding the foregoing, Seller will have no obligation under this Section or otherwise with respect to any infringement claim based upon any: (i) misuse or modification of the Products by Buyer or its employees or agents, (ii) use of the Products in combination with other materials, goods, products, or services for which the Products were not intended to be used, (iii) failure of Buyer to implement any update provided by Seller that would have prevented the claim, (iv) Products that Seller made to Buyer’s specifications or designs.

(e) THIS SECTION STATES SELLER’S ENTIRE LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.

14.  LIMITATIONS OF LIABILITY. 
(a) EXCEPT AS PROVIDED IN SECTION 12(a) ABOVE, SELLER WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF USE OR UNDER- UTILIZATION OF LABOR OR FACILITIES, LOSS OF REVENUE OR ANTICIPATED PROFITS, LOST DATA, AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES.

(b) SELLER’S TOTAL LIABILITY FOR ALL CLAIMS ARISING OUT OF, OR RELATING TO, THE PRODUCTS WILL BE THE WARRANTY REMEDIES PROVIDED IN THE WARRANTY REFERRED TO IN SECTION 11 ABOVE, AND ITS TOTAL LIABILITY FOR ANY OTHER CLAIMS ARISING OUT OF OR RELATING TO THE AGREEMENT WILL BE LIMITED TO GENERAL MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL PURCHASE PRICE FOR THE PRODUCTS ASSOCIATED WITH THE CLAIM.

15.  CHANGES. 
Seller reserves the right to alter, modify, or redesign Products without any obligation to replace previous shipments to Buyer.

16.  NO LICENSE.
 (a) Except as provided in Section 16(b), the sale of the Products will not confer upon Buyer any license, express or implied, under any patents, trademarks, trade names, or other proprietary rights owned or controlled by Seller, its subsidiaries, affiliates, or suppliers; it being specifically understood and agreed that all the rights are reserved to Seller, its subsidiaries, affiliates, or suppliers. Without limiting the foregoing, Buyer will not, without Seller’s prior written consent, use any trademark or trade name of Seller in connection with any the Products, other than with respect to the resale of the Products pre-marked or packaged by or on behalf of Seller.

(b) If software is provided with the Products, Buyer agrees that such software remains the property of Seller and that it may only be used in connection with the Products as Seller is only granting Buyer a limited license to use it with the Products. Buyer agrees not to directly or indirectly decompile, disassemble, reverse engineer or otherwise derive the source code for such software. If Buyer is a U.S. Government agency, Buyer acknowledges that the software licensed under the Agreement is a commercial service or a commercial product that has been developed exclusively at private expense. In accordance with FAR 12.212 for non-defense agencies and DFARS 227.7202-1 for defense agencies, the Government’s rights relating to the software are limited to those rights applicable to Buyer as set forth herein.

17.  CONFIDENTIALITY. 
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, that Seller discloses to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and regardless of whether marked, designated, or otherwise identified as “confidential,” in connection with the Agreement is confidential, solely for the use of performing the Agreement, and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request and as specified by Seller, Buyer will promptly return or destroy all documents and other materials received from Seller. If Seller requests that Buyer destroys documents and materials, Buyer will provide Seller with a written statement by Buyer’s Officer certifying that the destruction occurred. Seller will be entitled to injunctive relief for any violation of this Section, without having to post bond or establish the insufficiency of a remedy at law. This Section does not apply to information that is: (a) in the public domain through no fault of Buyer; (b) known to Buyer, and reduced to writing, at the time of disclosure; (c) rightfully obtained by Buyer on a non-confidential basis from a third party; (d) independently developed by Buyer without using Seller’s confidential information; or (e) approved in writing by Seller for release by Buyer.

18.  FORCE MAJEURE. 
Seller will not be liable for any failures or delays caused by strikes, differences with workers, or any causes beyond the reasonable control of Seller, including but not limited to fires, floods, accidents, widespread outbreak of disease, pandemics, epidemics, action of any governmental authority, war, insurrection or riots, or shortages of labor, energy, raw materials, production facilities, or transportation. Where delays or failures are caused by labor difficulties, Seller will not be obligated to seek or obtain any settlement that, in Seller’s sole judgment, is not in Seller’s best interest.

19.  COMPLIANCE. 
Each party will comply with all applicable laws, regulations, and ordinances, and Buyer will comply with the export and import laws and regulations in effect as of the date of shipment of the Products of any country involved in the transactions contemplated by the Agreement.

20.  GOVERNING LAW and LEGAL ACTIONS.
This Agreement, and the negotiation, execution and enforcement thereof, shall be governed by and construed under the laws of the State of California without regard to conflicts of laws provisions thereof. THIS AGREEMENT WILL NOT BE GOVERNED BY THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. All disputes arising in connection with the negotiation, execution or enforcement of this Agreement shall be submitted to and finally settled by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association by an arbitrator appointed in accordance with the rules who shall be free to act according to equity to the extent this does not interfere with the legal enforcement of the award. Both parties consent that the arbitration shall take place in New York, New York, and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by New York or federal law. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.

21.  CHOICE OF LANGUAGE. 
It is by the express intention of the parties hereto that the present Agreement and all its related documents be drafted in English. Il est de l’intention expresse des parties à la présente Convention (connaissement, bon de commande, bon de conditionnement ou facture) et tout document s’y rattachant soient écrit en langue anglaise.

22.  SURVIVAL. 
In addition to any other term whose context may so require, the terms contained in Sections 1 (Purpose), 3 (Payment), 5 (Risk of Loss; Title), 7 (Inspection; Rejection of Products), 9 (Government Use), 10 (Export), 11 (Limited Warranty), 12 (Indemnification), 14 (Limitation of Liability) 16 (No License), 17 (Confidentiality), 18 (Force Majeure), 19 (Compliance), 20 (Governing Law and Legal Actions), and 23 (Miscellaneous) will survive any cancellation of the purchase order.


23.  MISCELLANEOUS. 
(a) Buyer acknowledges that is has not been induced to purchase any Products from Seller by any representation or warranty not expressly set forth in this Agreement. 

(b) Buyer accepts these Terms by signing and returning Seller’s quotation, order or proposal, by sending a purchase order in response to the quotation or proposal, by Buyer’s instructions to Seller to ship the Product or by acceptance of any goods shipped. 

(c) These Terms constitute the entire agreement of the parties and supersede all existing agreements and all other oral or written communications between them concerning its subject matter. 

(d) None of the Terms may be added to, modified, amended, superseded, or otherwise altered, except by a written document signed by an authorized representative of Seller that specifically references these Terms and states that it modifies them. 

(e) No waiver by Seller of any of the provisions of these Terms is effective unless explicitly set forth in writing that specifically references these Terms and is signed by Seller. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms operates or may be construed as a waiver thereof. 

(f) The Section headings contained in these Terms are for convenience only and will not affect the interpretation of any provision. 

(g) If any provision of this Agreement is held to be prohibited or unenforceable, the provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. 

(h) Buyer will not assign any quotation, proposal or accepted order for the Products, in whole or in part, without Seller’s prior written consent.

24.  AUTOMATION SERVICES. 

If Buyer wishes to purchase any automation services from Seller (in addition to the Products being purchased), 
the terms of VES-ARTEX’s Cloud Services are available here.

Buyer agrees that prior to purchasing any cloud services, Buyer must accept the terms of VES-ARTEX’s Cloud Services Subscription Agreement (referenced above). Buyer understands that the purchase of automation services from Seller is separate from the purchase of Products.  There is no obligation that Buyer purchase any automation services from Seller at any time, and Buyer’s obligation to pay for Products is not contingent on the performance or non-performance of any services by Seller.