SCREENING EAGLE USA INC.

GENERAL TERMS AND CONDITIONS OF SALE

 

Thank you for choosing Screening Eagle’s advanced inspection technologies. Please read carefully these Terms and Conditions of Sale which constitute the sales contract between Screening Eagle and its Customers.

Contract

1. The following General Terms and Conditions of Sale, as amended from time to time (the Terms and Conditions of Sale), apply to all commercial sales of goods, including without limitation, licensing of certain specific basic operational software provided or embedded in and delivered as integral and/or in connection and linked to certain goods, as updated from time to time (the Operational Software) and related services made or provided by, as well as to all future deliveries and performances of Screening Eagle USA Inc., its subsidiaries and/or affiliates (collectively, Screening Eagle), and constitute an integral part of each sales contract that is entered into between a customer (hereafter the Customer), and Screening Eagle. For purposes of these Terms and Conditions of Sale, Screening Eagle shall refer to the Screening Eagle group company referred to in the final written offer, quotation or order acknowledgement.
2. Any deviation from these Terms and Conditions of Sale shall only be valid if pre-agreed upon between Screening Eagle the Customer in writing.
3. Any different or additional terms and conditions of a Customer are expressly excluded and shall not apply, irrespective of whether Screening Eagle expressly objects in a particular case or not.
4. Particular conditions of contract validly agreed upon by Screening Eagle and the Customer in written form for the purpose of a specific sales/purchase transaction shall prevail over these Terms and Conditions of Sale if in contradiction with the same.

 

Customer Orders

1. Customer’s purchase orders can be made in writing. Such orders must be accepted by Screening Eagle in writing to constitute a binding, valid and enforceable contract. Any quotation made by Screening Eagle even if made following a request of a Customer shall be always deemed to be only a request by the Customer to make a quotation to Screening Eagle and shall not be considered a contract.
2. Subject at all times to Clause 2.1, quotations may be freely revoked or amended, at any time prior to being replied to or accepted by the Customer. In the absence of specific provisions, any such quotations shall be in effect for a period of thirty (30) calendar days from the date they are issued and shall automatically expire thereafter if Customer has not agreed to the terms and conditions set forth thereon.
3. Screening Eagle may amend purchase orders at any time by notice to the Customer. In such case, the Customer shall be bound by the respective amendments unless such amendments result in higher or lower costs and/or in a longer period for performance and Customer submits to Screening Eagle a contestation of such amendments within three (3) business days of receipt of the amendment notice.
4. Any and all sales documentation, technical descriptions and data provided by Screening Eagle to a Customer in the context of a sales contract shall not be binding, unless otherwise stated by Screening Eagle in writing.

 

Operational Software License

1. For so long as Customer is not in breach of these Terms and Conditions of Sale (or any additional terms and conditions agreed to among the parties for the purpose of a specific sales/purchase transaction pursuant to Clause 1.4, Screening Eagle grants to the Customer a non-exclusive, revocable, non-transferable, limited license to use the Operational Software during the lifetime of the goods purchased by Customer strictly in connection with Screening Eagle’s branded equipment purchased by the Customer as specified in the Contract (the License). The License includes the Operational Software version initially licensed with certain purchased goods and any further updates, features, functionalities, support or maintenance services provided by Screening Eagle at its sole discretion.
2. Customer shall not, either itself or through any third parties, publish, transmit, retransmit, disseminate, broadcast, circulate, sell, resell, loan, lease, distribute or transfer the Operational Software or copies to third parties, nor reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code of the components of the Operational Software. Customer agrees to notify its employees and agents who may have access to Operational Software of the restrictions contained herein and to ensure their compliance with these restrictions.
3. The Operational Software may be used to access and use various products and services of Screening Eagle. All access to and use of such products or services by means of the Operational Software, including any charges for such access and use, will be governed by the terms applicable to the relevant products or services.
4. Customer hereby acknowledges and agrees that all right, title and interest in and to the Operational Software, the documentation and any other related materials are, and shall remain, vested solely in Screening Eagle and other software owners, if any, and Customer shall not hold itself out as having any ownership or other rights with respect thereto, except as specifically granted hereunder. Except as expressly permitted herein, Customer agrees that it shall make no use of the Operational Software, the documentation or any other related materials. Any and all goodwill associated with such rights shall inure directly and exclusively to the benefit of Screening Eagle.
5. The Operational Software is provided as is and as available. Neither Screening Eagle nor any licensors of the foregoing make any warranty of any kind, whether express or implied concerning the Operational Software, including that access to any Operational Software will be uninterrupted, secure, complete or error free, or it will meet Customer’s requirements.
6. Certain goods may include specific Operational Software with automatic data processing and analysis tools. While every effort is made to ensure the accuracy of the information provided by those tools, the Customer acknowledges that the results provided by them may be not absolutely error free.
7. Screening Eagle will use reasonable commercial efforts to rectify faults that materially affect the functionality of the Operational Software when reported by the Customer within twelve (12) months as of purchase of the goods connected therewith. The Customer shall report and describe the material defects to Screening Eagle in writing without undue delay. Screening Eagle reserves the right to rectify the defect as it deems appropriate.
8. Customer shall accept sole responsibility for, and Screening Eagle shall not be liable for the use of the Operational Software by Customer, or any other user. Customer shall defend, hold Screening Eagle harmless and fully indemnified against any claims, costs, damages, loss, and liabilities arising out of any such use (including reasonable expenses and costs).
9. Customer's exclusive remedy and Screening Eagle's, (and/or licensors of the foregoing) entire liability hereunder if any, for any claim(s) for damages relating to the Operational Software made against them individually or jointly whether based in contract or negligence shall be limited to the aggregate amount of the fees paid by the Customer relative to the goods purchased and linked to such Operational Software.

 

Prices

1. Prices to be paid by the Customer for products and/or services shall be those set out in the quotation issued in writing by Screening Eagle (in its sole and absolute discretion) to the Customer for the respective product or service and understood to be Ex Works as per Incoterms 2020 trade terms published by the International Chamber of Commerce (EXW). Prices shown on the published price lists and other published literature issued by Screening Eagle are not unconditional offers to sell and are subject to change without notice.
2. Screening Eagle’s prices do not include any applicable sales, goods and services, use, excise or similar taxes and the amount of any such tax which Screening Eagle may be required to pay or collect will be added to each invoice and paid by the Customer promptly, neither charges and packing, transport costs, an allowance for installation and or final on-site adjustment.
3. All freight, insurance, approval and certification costs shall be solely borne by the Customer. Furthermore, the Customer shall pay all taxes, fees, customs duties and other charges that arise in connection with the performance of the contract. Any payments provided for hereunder shall be paid by the Customer net of any applicable withholding required under any applicable law. To the extent that such charges are levied from Screening Eagle, the Customer shall reimburse them upon first demand.
4. Screening Eagle reserves the right to charge to the Customer a handling fee of USD 50 for any purchase orders of less than USD 200.
5. Screening Eagle may charge additional fees for services provided to the Customer under the sales contract and these Terms and Conditions of Sale.      

 

Terms of Payment

1. Payments made by the Customer to Screening Eagle shall be made in the currency stated in the respective sales’ contract quotation and as indicated therein. Screening Eagle reserves the right to invoice the Customer in any currency it deems suitable.
2. All Screening Eagle invoices for deliveries to Customers or third parties specified by such Customers shall be due and payable by the Customer as per the terms indicated in the respective contract quotation. Unless otherwise expressly agreed in writing, payment terms for products and services are cash net thirty (30) days from date of invoice. If Screening Eagle deems that by reason of the financial condition of the Customer or otherwise, the continuance or production or shipment on the terms specified is not justified, Screening Eagle may require full or partial payment in advance. On orders of USD 30,000 or more or having a delivery schedule of four (4) months or longer from date of order, Screening Eagle payment terms will be progressive payments in accordance with Screening Eagle stated terms for such payments as may be in effect from time to time, unless otherwise agreed in writing.
3. If Customer has not made payment in full on or prior to expiration of the payment period, the Customer is automatically in default, without any prior reminder. Screening Eagle reserves the right to charge an additional administrative fee of USD 200 to the Customer for each reminder sent hereunder. Any objections to invoices must be lodged by the Customer in writing within the payment period. If no objections are received within this period, the invoice shall be deemed to have been accepted by the Customer as correct.
4. In the event the Customer fails to fulfil partially or entirely any of its payment obligations under the contract in a timely manner, Screening Eagle shall have the right, without any further notice, to demand default interest on the outstanding balances in the amount of the current charge the Customer interest on the amount unpaid of 1.5% per month (or fraction thereof) or maximum contract rate permitted by law from the due date until payment in full is received by Screening Eagle, plus an administrative fee based on Screening Eagle applicable rates at the relevant time.
5. Any reimbursement made by Screening Eagle to Customer under the sales contract and these Terms and Conditions of Sale will be via the same payment method as was used initially used by Customer.
6. In the event of a payment default and justified doubts as to the solvency of the Customer, Screening Eagle shall have the right to at its sole discretion (i) hold back in part or whole the delivery of the goods, (ii) immediately accelerate maturity of all claims under the business relationship and (iii) make delivery of any unpaid goods contingent on sufficient advance payments or upon being provided with adequate security for the Customer’s performance its obligations hereunder.
7. Screening Eagle shall have the right to set off any claims that the Customer asserts against Screening Eagle against any claims due by the Customer to Screening Eagle. Screening Eagle will give notice to the Customer of any set-off effected under this provision. This provision shall be without prejudice and in addition to any right of set-off, combination of accounts, lien or other right to which Screening Eagle is at any time otherwise entitled (whether by operation of law, contract or otherwise).
8. All sums payable by the Customer to Screening Eagle shall be paid in full, free of any restriction, condition, set-off or counterclaim, and without any deduction or withholding for or on account of any taxes or otherwise unless the deduction or withholding is required by law. The Customer shall not have the right to set off its payment obligations against Screening Eagle unless awarded in a final enforceable judgment to do so.
9. In the event that any deduction or withholding is required by law to be made from any sum payable by the Customer to Screening Eagle, the Customer shall:
10. notify Screening Eagle as soon as the Customer becomes aware of such requirement;
11. ensure that such deduction or withholding does not exceed the minimum legal liability therefor and forthwith pay to Screening Eagle such additional amount as is necessary to ensure that Screening Eagle receives on the due date and retains (free from any liability in respect of such deduction or withholding) a net sum equal to what it would have received and so retained had no such deduction or withholding been required or made; and
12. as soon as practicable, pay the full amount required to be deducted or withheld (including, but without prejudice to the generality of the foregoing, the full amount of any deduction or withholding from any additional amount paid pursuant to this sub-clause) to the relevant taxation or other authority within the time allowed for such payment under applicable law and deliver to Screening Eagle, within thirty (30) days after the Customer has made such payment to the relevant authority, an original receipt (or a certified true copy thereof) issued by such authority evidencing the payment to such authority  of all amounts so required to be deduced or withheld in respect of such payment to Screening Eagle.
13. The Customer undertakes to indemnify, defend and hold Screening Eagle harmless, against any losses, costs, duties, levies, fees, penalties, interest, expenses, damages or claims suffered by or incurred by Screening Eagle by reason of any failure of the Customer to make any deduction or withholding or by reason of any increased payment not being made on the due date for such payment.

 

Delivery

1. Deliveries made to the Customer, or third parties designated by it hereunder, are exclusively F.C.A. Aliquippa, PA. Unless the Customer elects a freight collect shipment, shipping charges and all applicable shipping and/or handling charges and/or any other similar fees or charges in relation to the delivery of the products shall be borne by the Customer.
2. Delivery dates indicated in the contract are approximate and are based on prompt receipt of all necessary information regarding the products and services covered by the contract. Screening Eagle will use reasonable efforts to meet the indicated delivery dates but cannot and shall not be held responsible for its failure to do so. The contractually agreed delivery date shall be deemed to have been satisfied if the goods are made available for delivery by such time at the place of manufacture or at any other designated place.
3. Screening Eagle reserves the right to make partial shipments of the products and bill for those shipments. In such case, the Customer shall make the respective payment in accordance with terms referenced herein.
4. Notwithstanding anything to the contrary elsewhere herein or in applicable law, Customer agrees that no indirect, liquidated, consequential, or punitive damages for delay shall become due and payable by Screening Eagle.

 

Transfer of Ownership, Use and Risk

1. Title and ownership to the goods passes to the Customer upon full and complete payment of all Customer’s obligations hereunder, together with any applicable goods and services tax, even if the products may have been already delivered and/or may be in the possession of the Customer.
2. Customer agrees to pay for the equipment according to Screening Eagle payment terms and does hereby grant to Screening Eagle a purchase money security interest in the equipment and other items supplied by Screening Eagle until such time as Screening Eagle is fully paid. Customer will assist Screening Eagle in taking the necessary action to perfect and protect Screening Eagle’s security interest. Customer hereby irrevocably appoints Screening Eagle as attorney-in-fact of the Customer in order to execute and deliver such financing and other documents and instruments as Company may, at any time, and from time to time, desire in connection therewith. Customer agrees to extend such cooperation as Screening Eagle may require, at any time, or from time to time, with respect to the execution of such financing statements or other documents necessary, in the opinion of Screening Eagle, in order to cause such security interest to be perfected against third parties. In the event of a default by Customer, Screening Eagle shall have available to it all rights afforded, at law or in equity, to a secured seller including, but not limited to, the right to enter upon the premises where such goods shall be located for purposes of recovering the same and Customer shall cooperate with respect to any such action. Regardless of Customer’s title to such goods, risk of loss thereof shall be controlled by the conditions recited above.
3. The Customer hereby commits to refraining from taking any action that would be contrary to the objectives pursued by the right of retention. The Customer shall cooperate in any measures necessary for the protection of the Screening Eagle’s title. Screening Eagle is and shall be authorised to enter or notify the reservation of title in the required form in public registers, books or similar records, all in accordance with the relevant national laws, and to fulfil all corresponding formalities, at the Customer’s expense. During the period of the reservation of title, the Customer shall, at its own cost, maintain the supplies and insure them for the benefit of Screening Eagle against theft, breakdown, fire, water and other risks.
4. Notwithstanding that the title to the products may remain vested with Screening Eagle, the Customer agrees to assume all risks in relation to the products immediately upon delivery of products to carrier or Customer (whichever is earlier) and bear all risks of loss of and damage to the goods from the time the goods are made available for delivery.
5. The Customer undertakes that until it shall have paid in full for the products, together with any taxes payable thereon, the Customer will not sell, pledge, charge or otherwise dispose of the products in any manner whatsoever. In the event that the Customer sells, pledges, charges, or otherwise disposes of the Products in contravention of this Clause 7, the entire proceeds of such sale, pledge, charge or disposal shall be held on trust for Screening Eagle and paid over to Screening Eagle on demand and shall not be mixed with other monies or paid into any overdrawn account and shall at all times be identified as Screening Eagle monies.

 

Delayed Pickup by the Customer

1. If the Customer fails to take delivery of the goods in accordance with the terms of the sales’ contract, the goods shall be warehoused uninsured at the sole expense and risk of the Customer. Screening Eagle shall have the right and authority to have the goods that are not timely picked up stored on third-party premises in the name and at the expense of the Customer. For and during the period of storage the Customer shall be liable for any costs in connection with and arising from such delay, including, but not limited to, Screening Eagle’s costs relating to storage, insurance and handling of the goods. If not otherwise agreed, the costs for storage shall be 0.5 % of full invoice value of the purchase order, per commenced month. In no event shall any payments already made by Customer or due according to this Clause 8 be returned or otherwise compensated to Customer.
2. Screening Eagle reserves the right to resell the goods ordered by the Customer if the Customer does not collect the goods within two (2) months of the delivery date. In such case, Screening Eagle will provide the Customer with a fourteen (14) calendar days advance notification of its decision to resell the goods.

 

Transport

1. In the event that Screening Eagle arranges for transport, it shall do so exclusively on behalf, in the name and for the account of the Customer. In such case, the carrier will either be ordered by Screening Eagle to collect freight costs and all related charges (including, but not limited to, import taxes) from the Customer or, if applicable, to invoice the freight costs solely to Screening Eagle which, in such case, will invoice the freight costs and disbursements to the Customer. Nothing in this Clause 9 shall limit or otherwise change any delivery terms set forth in the sales contract and these Terms and Conditions of Sale.
2. The procurement of transport insurance shall be the exclusive responsibility of the Customer.

 

Inspection of Goods

1. The Customer shall inspect the goods immediately, either upon delivery or, if this should not be possible, immediately after the receipt of the goods at the Customer’s plant or at the designated address and shall do everything to minimize losses.
2. Complaints must be notified in writing and in detail immediately, but no later than within ten (10) business days, upon initial inspection. The deadline shall run from the time of the inspection upon delivery or upon receipt by the Customer or at the designated address.
3. If no complaints are notified in accordance with this Clause 10 within the inspection period, the right to inspect and notify complaints shall be deemed to have been forfeited.

 

Changes

1. Customer may, with the express written consent of Screening Eagle, make changes in the specifications for equipment or work covered by the contract. In the event that such changes require a change in the contract price or delivery dates, such price and delivery date shall be equitably adjusted. Notwithstanding the foregoing, Screening Eagle shall be entitled to payment for reasonable profit plus costs and expenses incurred by it for work and materials rendered unnecessary as a result of such changes and for work and materials required to effect said changes.

 

Cancellation

1. Delivered or undelivered parts of any order may be cancelled by the Customer only with the written approval of Screening Eagle. If the Customer makes an assignment for the benefit of creditors, or in the event that Screening Eagle for any reason feels insecure about the Customer willingness or ability to perform, the Company shall have the unconditional right to cancel this sales transaction. In the event of any cancellation of this order by either party, the Customer shall pay to the Company the reasonable costs and expenses (including engineering expenses and all commitments to its suppliers and subcontractors) incurred by Screening Eagle prior to receipt of notice of any such cancellation, plus the Company’s usual rate of profit for similar work. The minimum cancellation charge shall be 15% of the contract price. Returns must be made within thirty (30) days of the date of purchase.

 

Default

1. Upon default and placing of the Customer’s account for collection or repossession of equipment, the Customer agrees to reimburse the Company for all collection costs, legal fees, and court costs incurred by the Company in connection therewith.

 

Warranties

1. Subject to Clause 3.5 related to the Operational Software and 14.6 below, Screening Eagle warrants that all products manufactured by Screening Eagle shall, at the time of sale, comply with applicable Screening Eagle specifications. All products not manufactured by Screening Eagle are sold only with the warranties provided by the manufacturer of products, if any. Screening Eagle MAKES NO OTHER WARRANTY WITH RESPECT TO THE GOODS, AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SCREENING EAGLE personnel are not authorized to alter this disclaimer of warranty.
2. The warranty periods applicable to goods purchased herein (excluding Operational Software) (the Warranty Periods) are as follows:
   • Electronic indicating units: twenty-four (24) months;
   • Mechanical and electromechanical parts and accessories: six (6) months;
   • Repaired parts: three (3) months; and
   • Parts and sub-assemblies acquired by the Customer for its own repair purposes and not in respect of any warranty cases: six (6) months.
3. Screening Eagle does not warrant calibration or adjustment works on any equipment.
4. Excluded from the warranty for new products are all parts subject to ordinary wear and tear, including but not limited to, impact bodies, indenters, impact plungers, test blocks, connecting cables etc. These products are subject to ordinary wear and tear during use. Customer shall check for proper fit, form and function of such items upon receipt of such items. In case of a defect condition, Customer can return the item to Screening Eagle for evaluation within thirty (30) days of the date of shipment to the Customer. Screening Eagle reserves the exclusive right to issue full, partial, or no credit to the Customer based on the condition of the returned item and circumstances related to the return.
5. The Warranty Periods provided herein run from (i) the date of purchase if the goods were purchased from Screening Eagle directly; or (ii) from the date of purchase from an authorized distributor if purchased from an official partner of Screening Eagle. Warranty claims, together with the complained-of goods shall be addressed to Screening Eagle directly.
6. The warranty provided to goods purchased herein expressly excludes the following: (a) defects due to incorrect or negligent storing or use of the goods, losses due to transport; (b) defects due to exposure to extreme conditions, e.g. thunder, lightning, water ingress, fire, bad ventilation or other conditions beyond the control of Screening Eagle; (c) parts subject to ordinary wear and tear during use, in particular but not limited to impact bodies, indenters, impact plungers, test blocks, connecting cables; (d) batteries, (e) defective maintenance; (f) failures due to compatibility between the goods and any third party products; (g) failure to observe operating or assembly instructions; (h) defective construction and assembly work not carried out by Screening Eagle; (i) over-use of the goods; (j) unsuitable charges; or (k) goods that have been modified or repaired by any third party.
7. The warranty expires prematurely if the Customer or a third party undertakes modifications or repairs or if the Customer, in case of a defect, does not immediately take all appropriate steps to mitigate the damage and give Screening Eagle the possibility to remedy the defect.
8. During the above-mentioned Warranty Periods, Screening Eagle will provide spare parts and manpower in order to remedy the defect. If the Customer requires the repair works to be performed in its own factory, Screening Eagle will provide the spare parts for such repair of the defect. In that case, all displacement and travel costs at the applicable rates for after-sale service shall be at Customer's sole charge.
9. Descriptions of the goods and/or the Operational Software do not constitute any guarantee or warranty. 
10. Any warranty that is in addition to or different from the warranty contained herein that is granted by the Customer to its clients, even as final consumers, does not bind and shall not be enforceable against Screening Eagle in anyway.
11. Screening Eagle shall only be obliged to correct defects during the above-mentioned Warranty Periods provided that all requirements are met and if the Customer has complied with all duties imposed on the Customer by contract and by law and with product specification provided by Screening Eagle.
12. The Customer shall not have the right to withhold the agreed or due payments on the grounds of a pending warranty claim.    
13. The product warranty provided herein shall be binding on Screening Eagle and the Customer only and shall not be transferable to any third party, unless such third party is becomes a buyer of the goods warranted hereunder.

 

Extended Warranty

1. The Customer has the option to, in the moment of purchase of certain goods, request an extension of the Warranty Period for the electronic parts of such goods for a subsequent additional period of twelve (12), twenty-four (24) or thirty-six (36) months subject to the provisions set forth hereto and by sending a written request to Screening Eagle indicating the unit of the product (the Extended Warranty). For the avoidance of doubt, Screening Eagle reserves any and all rights not to accept the requested extension at its sole discretion.
2. If accepted, such extension shall be effective as of written confirmation by Screening Eagle and following complete payment of the applicable Extended Warranty fee applicable at the time of the purchase of the goods. In such case, Screening Eagle shall issue to the Customer an extended warranty certificate evidencing the valid extension (the Extended Warranty Certificate).
3. Extended Warranty runs between Screening Eagle and the Customer without any third-party involvement and are not assignable or otherwise transferable. Warranty work cannot be performed by any party other than Screening Eagle.
4. The Extended Warranty is only effective and valid if the Customer retains the Extended Warranty Certificate and documentary proof of purchase from Screening Eagle.

 

Indemnity

1. Subject to Clause 25 hereof, Screening Eagle shall indemnify Customer from and against claims brought by a third party, on account of personal injury or damage to the third party’s tangible property, to the extent caused by the negligence of Screening Eagle in connection with contracts governed by these Terms and Conditions of Sale. In the event the injury or damage is caused by joint or concurrent negligence of Screening Eagle and Customer, the loss or expense shall be borne by each party in proportion to its degree of negligence. For purposes of Screening Eagle’s indemnity obligation, no part of the goods or products sold hereunder is considered third party property.
2. The Customer hereby undertakes to indemnify, defend and hold Screening Eagle harmless in respect of any losses, damages, fines, costs (including legal costs on a full indemnity basis), fees or expenses suffered or incurred by Screening Eagle in relation to (i) any breach of any of these Terms and Conditions of Sale by the Customer; (ii) any damage, loss, theft or destruction of any products in the possession of the Customer which remain the property of Screening Eagle; and (iii) any action or steps taken by Screening Eagle to protect its interest in and/ or title to the products and/or Screening Eagle rights under the Contract (including but not limited any actions or steps taken by Screening Eagle for the purpose of re- possessing or removing products from the premises of the Customer).
3. The Customer hereby agrees that a certificate signed by any duly authorised officer of Screening Eagle shall, in the absence of manifest error, be conclusive against the Customer as to the amount of any loss, damage, fine, costs (including legal costs on a full indemnity basis), fees or expense suffered or incurred by Screening Eagle.
4. The goods may not be used for purposes other than those recommended by Screening Eagle and not in combination with products that are not suitable for the purpose. Screening Eagle disclaims any liability whatsoever for damage or loss due to the Customer’s noncompliance with this Clause.
5. Customer undertakes to ensure that it and its employees and/or representatives have the necessary knowledge to work with the goods properly. Screening Eagle hereby excludes any liability for losses and/or damage resulting from Customer’s inadequate knowledge of the goods.
6. If Customer resells any of the goods, the sale terms and conditions shall limit Screening Eagle’s liability to such third-party buyer to the same extent that Screening Eagle’s liability to Customer is limited hereunder.
7. Customer right to claim compensation for damages shall only apply twelve (12) months after the date of delivery of the goods.

 

Repair and Maintenance

1. Repair cost estimates will be produced upon request and charged according to Screening Eagle price list in place at the moment of request. If the Customer proceeds with the repair under the terms provided by Screening Eagle, no additional charge will apply.
2. Repair and maintenance work undertaken by Screening Eagle shall be subject to the sales contract and these Terms and Conditions of Sales to the extent no other written agreement has been explicitly made between the Customer and Screening Eagle. This Clause 17 does not apply to services provided to Customers within the scope of (i) Warranty Periods; (b) Extended Warranty; or (iii) Eagle Care (separate Eagle Care Repair and Maintenance Services apply), provided that the Customer is eligible to repair or maintain the relevant good under any such services or conditions and is in compliance with all its obligations thereunder.
3. All work shall be carried out depending on the availability of spare parts within a reasonable time and during normal local working hours by service technicians at Screening Eagle service centres as well as at authorized partners in a place to be decided at Screening Eagle sole discretion.
4. Screening Eagle, or any third-party chosen by it at its sole discretion, will undertake the professional handling of repair or maintenance work assigned in relation to instruments sold hereunder. Unless a different scope of work has been agreed upon in writing, the repair or maintenance work covers the performance of services that are identified as necessary: (a) on the basis of the details provided by the Customer, (b) on the basis of Screening Eagle’s examination of the instrument to be repaired, and (c) during the course of the repair work.
5. Fees for all services rendered under this Clause 17 are calculated based on the individual services performed, time spent and Screening Eagle’s rates applicable at the time of the services. Time worked will be rounded up to the next full hour and charged at the applicable rates for the service, in accordance with the relevant class of equipment.
6. Any material required for the service shall be invoiced separately.
7. Shipping costs (packaging, transport and insurance) shall be borne by the Customer. Screening Eagle may charge a flat fee for shipping costs.
8. Applicable taxes at the statutory rate will be charged on Screening Eagle prices in accordance with the applicable tax rules.
9. The repair costs stated in Screening Eagle’s quotation estimates are guidelines estimated on the basis of the information provided by the Customer and following the examination of the instrument. Screening Eagle cannot guarantee the accuracy of the figures contained. If while repairing the instrument it becomes clear that more extensive repair work is necessary, the Customer hereby authorized Screening Eagle to complete the work without seeking further confirmation, provided this does not cause the overall repair costs to exceed the estimated price by more than 15%. Otherwise, Screening Eagle shall inform the Customer and shall present a new cost estimate.
10. If at any time the Customer decides not to proceed with the performance or continuation of the service, Screening Eagle shall have the right to charge the Customer for the cost of preparing the cost estimate and for any services performed up to that point.
11. Customer is responsible for the saving of all data, for the retrieval and restitution of lost or modified data and programs, and for the protection of confidential data and/or personal data contained to in the goods.
12. Screening Eagle shall choose the route and type of transportation for the return of repaired or maintained goods unless the Customer provided express instructions. Transportation and packaging will be charged to the Customer at cost.
13. The risk of damages to or loss of the serviced goods passes to the Customer as soon as the leaves Screening Eagle service location. 
14. After the repair has been completed the Customer is obliged to accept duly performed the services immediately. The services provided will be deemed as accepted unless the Customer states otherwise within 15 (fifteen) calendar days as of receipt of the serviced goods.
15. Repair works performed under the direct control and supervision of Screening Eagle, are warranted for a period of three (3) months from the date repairs are completed. Should the defect for which the repair work was performed reoccur within this period, Screening Eagle will supply the necessary parts and labor (repair at its facility), or parts (repair at Customer facility) required to repair the original equipment defect for which the repair parts and labor were required. Additional repair charges that may be incurred in conjunction with any repair service warranty event will be invoiced at Screening Eagle’s service rates and policies in effect at the time of the event
16. Screening Eagle shall only be liable, on any legal grounds whatsoever, for damage which is not caused to the repaired good itself in the following cases: intention, gross negligence of our corporate bodies or corporate executives, culpable infringement of life, body and health, defects we have concealed fraudulently or of which we have guaranteed the absence.

 

Intellectual Property Rights

1. Screening Eagle is and shall retain at all times the unrestricted right, title and interest in and to all intellectual property rights and know-how relating to any of the goods, Operational Software, services provided hereunder (existing or future) and in and to all documentation or drawings provided to the Customer in conjunction with an offer or delivery of any goods.
2. Any documentation or drawings provided by Screening Eagle to Customer shall not be used for any other purpose than that for which they were provided and may not be used or copied, reproduced, transmitted, or communicated to third parties.
3. Any documentation, illustrations, drawings, specifications, measurements, or similar data provided by Screening Eagle according to an offer or a contract shall constitute mere normal guidelines except where otherwise specifically stated by Screening Eagle.
4. Customer hereby grants to Screening Eagle the limited right to use its name, logo and/or trademark, as applicable, for advertising and promotional purposes, including reference to the Customer in marketing documentation and activities relating to the use of the goods provided that such use is in accordance with good business practice and in goodwill.
5. Screening Eagle shall defend any suit or proceeding brought against the Customer so far as the same is based on a claim that any equipment of Screening Eagle’s design furnished hereunder, or any part thereof, constitutes an infringement of any United States or Canadian patent, if notified promptly in writing and given authority information and assistance (at Screening Eagle’s expense) for the defense of the same and if such alleged infringement is not the result of a design or other special requirement specified by the Customer or the result of the application or the use to which such equipment is put by the Customer or others. Screening Eagle will pay all damages and costs awarded in such suit or proceeding against the Customer provided that Screening Eagle shall have the sole and exclusive right to defend, settle or compromise any suit or proceedings and the Customer takes no action which would materially detract from the Company’s ability to conduct an effective defense, settlement or compromise. In case such equipment or part in such suit held to infringe any such patent and the use thereof is enjoined, Screening Eagle shall at its expense either, at its option:
   • obtain for the Customer the right to continue using such equipment or part or
   • replace the same with non-infringing equipment, or
   • modify the same so that it becomes non-infringing, or
   • remove said equipment and refund the purchase price and the transportation and installation costs thereof.

The foregoing states the entire liability of Screening Eagle to the Customer for any patent infringement related matters.

 

Cancellation

1. Delivered or undelivered parts of any order for products and/or services may be cancelled by the Customer only with the written approval of Screening Eagle.
2. Screening Eagle reserves the right to and shall be entitled to, at any time and in its sole and absolute discretion, cancel any order by the Customer for products and/or services which have not been paid for.
3. In the event of any cancellation of any order by the Customer, the Customer shall pay to Screening Eagle the reasonable costs and expenses (including engineering expenses and all commitments to its suppliers and subcontractors) incurred by Screening Eagle prior to receipt of notice of such cancellation, plus Screening Eagle’s usual rate of profit for similar work.
4. The minimum cancellation charge shall be 15% of the contract price. Upon the cancellation of an order for products and services, all products which have not been paid for shall be returned (at Customer's cost and expense) to Screening Eagle.

 

Return of Goods

1. Goods delivered by Screening Eagle hereunder that conform to the contract and have a purchase order value of more than USD 200 (excluding shipping costs) may be accepted for return at Screening Eagle’s sole discretion provided that there is prior written agreement between Screening Eagle and the Customer within fourteen (14) calendar days of delivery of such goods and subject to meeting the criteria set forth herein.
2. Upon receipt, the returned goods will be inspected by Screening Eagle and the following conditions must all be met so that the return is accepted: (i) the goods must be in a unused, flawless, and in saleable condition; (ii) the complete packaging units are returned as supplied by Screening Eagle, in their original packaging corresponding to the current product line; and (iii) the goods are received within fourteen (14) business days after the agreement mentioned in Clause 20.1. Return of the purchased goods is expressly excluded upon failure to meet any of these conditions.
3. Customer shall bear the costs for the return shipment.
4. If the returned goods meet the criteria established, the Customer will receive a credit note for the amount invoiced.
5. Screening Eagle will charge a fee in the minimum of USD 200 for processing each return request.
6. Orders comprising of special or customized products will not be accepted for return in any event.       

 

Regulatory Laws and/or Standards

The performance of the parties hereto is subject to the applicable laws of the United States or Canada, depending on the location of delivery of the product or service. Screening Eagle takes reasonable steps to keep its products in conformity with various nationally recognized standards and such regulations, which may affect its products. However, Screening Eagle recognizes that its products are utilized in many regulated applications and that from time-to-time standards and regulations are in conflict with each other. Screening Eagle makes no promise or representation that its product will conform to any federal, provincial, state or local laws, ordinances, regulations, codes or standards except as particularly specified and agreed upon for compliance in writing as a part of the contract between Customer and Screening Eagle. Screening Eagle prices do not include the cost of any related inspections or permits or inspection fees.

 

Country-Specific Regulations

1. The Customer must inform Screening Eagle no later than at the time of the purchase order of any applicable country-specific regulations and standards. This information shall be provided in writing and outline all reasonable details. It shall apply without limitations to regulations and standards that require adjustments or changes to the goods and/or Operational Software to be delivered by Screening Eagle.
2. Unless otherwise agreed in writing, the goods, including the Operational Software delivered by Screening Eagle shall be deemed to conform to the contract if they satisfy applicable Swiss regulations and standards.
3. The Customer shall:
   • comply, and ensure that its relevant personnel comply, with all applicable laws and regulations, including without limitations any law, regulation, statute, prohibition, or wider measure applicable to the goods, services and/or to either party relating to the adoption, application, implementation and enforcement of economic sanctions, export controls, trade embargoes or any other restrictive measures (Laws and Regulations) to ensure that goods are sold, supplied, imported, exported, re-exported, transferred, used, disclosed and/or transported only in accordance with all applicable Laws and Regulations;
   • notify Screening Eagle immediately if it becomes aware that it or any of its personnel or to the extent it is a re-seller of the goods, any of its clients may have breached any applicable Laws and Regulations;
   • provide any and all information and documents required for the export or shipment. Any delays due to export controls or approval procedures suspend any deadlines and delivery times. If required approvals are not granted or if the delivery and service are not approvable, the contract shall be deemed not concluded with respect to the parts concerned;
   • not supply any goods of Screening Eagle, in any form, directly or indirectly, to any person or entity that is not compliant with applicable Laws and Regulations;
   • indemnify and hold Screening Eagle harmless from and against any claim, loss, liability or direct or indirect damage suffered or incurred by Screening Eagle resulting from or related to Customers, its personnel or to the extent it is a re-seller of the goods, any of its clients’ breach of this provision.
4. The Customer represents and guarantees that it is not subject to any governmental or supragovernmental trade sanctions. Furthermore, the Customer guarantees that it does not maintain any direct or indirect business or other relationships with terrorists, terrorist groups or other criminal, anti-constitutional organisations or sanctioned business partners. In particular, the Customer ensures by means of appropriate organisational measures, by using appropriate systems, the implementation of applicable embargoes, the EU regulations against terrorism and crime applicable in the context of the delivery relationship as well as the respective USA or other applicable provisions within the framework of its business operation.

 

Limitation of Nuclear Use

1. The equipment is not for use in or with any nuclear facility unless expressly stated in the respective sales contract quotation. Customer accepts the responsibility for ensuring that the equipment is not used in violation of this limitation and Customer shall defend, indemnify and hold harmless Screening Eagle and its owners, directors, officers, employees and agents from any and all liability (including such liability resulting from Screening Eagle’s negligence) and related actions, claims, costs, demands, expenses and losses arising out of said improper use.

 

Disclaimer of Damages

1. IN NO EVENT SHALL SCREENING EAGLE BE LIABLE FOR ANY TYPE OF SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER SUCH DAMAGES ARISE OUT OF OR ARE A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. Such damages shall include but not be limited to loss of profits or revenues, loss of use of the equipment or associated equipment, cost of substitute equipment, facilities, down time costs, increased construction costs or claims of Customer’s customers or contractors for such damages.
2. Customer agrees that in the event of a transfer, assignment, or lease of the equipment sold hereunder Customer shall secure for Screening Eagle the protection afforded to it in this Clause 24 and in Article 25 below.

 

Limitation of Liability

1. Screening Eagle shall not be liable for any loss, claim, expense or damage caused by, contributed to or arising out of the acts or omissions of Customer or third parties, whether negligent or otherwise, and in no event shall Screening Eagle’s liability for any cause of action whatsoever exceed the cost of the item purchased from Screening Eagle that gives rise to any such claim, whether based in contract (including, but not limited to, failure or delay in performance or delivery due to any cause whatsoever), warranty, indemnity, tort (including, but not limited to, negligence or strict liability), or otherwise.
2. Any suit arising hereunder must be commenced within one (1) year from the date in which the cause of action accrues. Except as expressly provided in these Terms and Conditions of Sale, Screening Eagle shall not indemnify any party for anything.

 

Data protection

1. Screening Eagle will treat personal data which becomes or became known in connection with the performance of the contract in accordance with the applicable data protection regulations, in particular the Swiss Telecommunication and Data Protection Act, the Swiss Federal Act on Data Protection and the standards of the EU General Data Protection Regulation (GDPR) and Screening Eagle’s Privacy Policy, as amended from time to time. This Policy is incorporated herein for the purposes of this matter and shall constitute an integral part of the sales contract and these Terms and Conditions of Sale and the contract. Details can be found in the separate privacy policy of Screening Eagle under www.screeningeagle.com. 
2. The contracting parties agree that the Customer shall be the data controller, who shall ensure compliance with the applicable data protection laws, in particular the lawfulness of the processing of personal data. Screening Eagle shall be processing personal data on behalf of the Customer and shall ensure compliance only with regard to those obligations under applicable data protection laws that are specifically directed to processors and shall act according to lawful instructions of the Customer.
3. The Customer agrees that it will not withhold or delay its consent to any changes to this data protection clause and/or to any additional data processing or data protection agreements which in the reasonable opinion of Screening Eagle are required to be made in order to comply with applicable data protection laws and regulations and/or with guidelines from any competent supervisory authority, and their application to the supplies and services provided by the supplier from time to time.

 

Force Majeure

1. Screening Eagle shall not be liable for any failure to perform any of its obligations hereunder due to unforeseen circumstances or causes beyond its reasonable control. Such circumstances or causes may include but shall not be limited to, pandemic, war, riot, terrorist attacks, embargoes, acts of civil or military authorities, delay in delivery by Screening Eagle’s suppliers, fire, floods, accidents, strikes, and any cases in which it is not possible to obtain the necessary transportation, operating facilities, fuel, energy, personnel or materials. In the event of force majeure, the time allowed for performance by Screening Eagle will be extended for period equal to the duration of the delay caused thereby.

 

No Responsibility for Gratuitous Information or Assistance

1. If Screening Eagle provides Customer with assistance or advice which concerns any parts, products, service supplied hereunder or any system or equipment in which any such parts, products, or services may be installed and which is not required pursuant hereto, the furnishing of such assistance or advice shall not subject Screening Eagle or any of its owners, directors, officers, employees or agents to any liability, whether based in contract, warranty, tort (including negligence) or otherwise.

 

Interpretation

1. Should any term or provision contained in the contract contravene or be invalid under applicable law, the contract shall not fail by reason thereof but shall be construed in the same manner as if such term or provision had not appeared therein.

 

Notices

1. Notice by either Screening Eagle or Customer will be made only by e-mail or similar electronic transmission, effective on the first business day after confirmed receipt, or by letter addressed to the other party at its address as provided in these Terms and Conditions of Sale, effective three (3) business days after deposit with the U.S. Postal Services, postage prepaid, or one (1) business day after deposit with a recognized overnight express service.

 

Assignability

1. Neither this contract nor any claim arising directly or indirectly out of or in connection herewith shall be assignable by Customer or by operation of law, without the prior written consent of Screening Eagle. These Terms and Conditions of Sale shall be binding upon and inure to the benefit of each party hereto and their respective permitted successors and assigns.

 

Governing Law

1. These Terms and Conditions of Sale shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania, without regard to its conflict of law’s provisions. Customer and Screening Eagle expressly agree to submit to the personal jurisdiction of the federal and/or state courts sitting in Pittsburgh, Pennsylvania, U.S.A. and agree that such courts may be utilized, if necessary, to obtain injunctive or any other relief. The Hague Convention and the United Nations Convention on Contracts for the International Sale of Goods shall not apply to the construction or interpretation of these Terms and Conditions of Sale or affect any of its provisions.

 

Miscellaneous

1. Screening Eagle may in its sole discretion immediately terminate Customer’s ability to purchase merchandise on credit or otherwise at any time, or if the Customer is in breach of any its obligations under the sales contract and these Terms and Conditions of Sale, all without prejudice to the right of Screening Eagle to enforce the terms of the sales contract and the Terms and Conditions of Sale. Customer shall be obliged to pay all costs and expenses, including reasonable attorney’s and court fees and expenses, incurred by Screening Eagle in relation with the enforcement or preservation of its rights under the sales contract and these Terms and Conditions of Sale.
2. Prices and other terms and conditions are subject to change by Screening Eagle without prior notice.
3. Screening Eagle reserves the right to discontinue any of its products or services and to make changes in any of its products and services at any time.
4. These Terms and Conditions of Sale constitutes the entire agreement of the parties with respect to the transactions contemplated herein.
5. No person is authorized to make any oral modification of these Terms and Conditions of Sale and any written modification of these Terms and Conditions of Sale may only be made by a duly authorized officer of Screening Eagle.
6. In the event of any conflict or variance between these Terms and Conditions of Sale and Customer’s business terms, these Terms and Conditions of Sale shall govern.
7. Screening Eagle reserves any and all right to amend and change these Terms and Conditions of Sale at its own discretion without further notice. Customer may find latest Terms and Conditions of Sale at www.screeningeagle.com or may request from Screening Eagle a copy of the currently applicable Terms and Conditions of Sale.

 

Date: 23 December 2021