TERMS & CONDITIONS OF SALE

1. General. These terms and conditions (“Terms”) shall apply to all sales of goods and services by SGB USA, Inc. and its affiliates and subsidiary companies (hereinafter collectively referred to as “Seller,“ “we,“ “our“ or “us”) and the purchaser of the product (hereinafter “Buyer“). Seller hereby expressly rejects any additional, inconsistent or different terms or conditions set forth or proposed by Buyer, whether written or oral. No contract or agreement shall exist between Buyer and Seller except as expressly provided by these Terms.

2.  Offer and Acceptance. Seller’s quotation or acknowledgment from Seller‘s authorized personnel constitutes Seller‘s offer to sell solely in accordance with these Terms and supersedes all previous written and oral quotations, representations and/or agreements. Our prices shall, insofar as not stated otherwise in writing, be calculated ex works and shall exclude applicable taxes which are for the account of the Buyer. Acceptance can be made by any commercially reasonable means, including Buyer’s issuance of an order, payment of Seller’s invoice, acceptance of equipment sold or services provided hereunder, acknowledgment or return of Seller‘s acknowledgment form, or by electronic transmission, provided, however, acceptance hereof by Buyer is expressly limited to the exact terms hereof, unless otherwise agreed to in writing by Seller.  Quotations must be accepted within thirty (30) days from date of quotation. Prices quoted may be withdrawn or changed by Seller at any time, in Seller’s sole discretion, prior to receipt in writing by Seller of acceptance by Buyer. Our offers are non-committal and non-binding. Seller reserves the right to reject an order for any reason or no reason. The rejection of an order based on an offer sent by Seller must be made in writing and delivered to Seller within a reasonable period of time. 

3. Trade Secrets; Confidential Information. The designs, drawings, illustrations and other data, technical or otherwise, issued by Seller in connection with our offer shall not be utilized by Buyer or disseminated to third parties for the purposes of competition or manufacturing by other parties. All such data shall be considered proprietary and a trade secret of Seller under the applicable law of these Terms, and shall be treated as confidential by Buyer under all circumstances.

Buyer acknowledges that pursuant to the transactions contemplated by these Terms, Buyer possesses, or will have access to, certain confidential or proprietary information of Seller, and of Seller’s vendors and suppliers, including, without limitation, designs, data, ideas, drawings, specifications, trade secrets, formula, technical experience, financial data, financial information, and other valuable, confidential and proprietary information, and other goods and services of Seller, which may be disclosed to Buyer or for which Buyer may have access (“Confidential Information”).  At all times thereafter, Buyer agrees not to disclose to any person, firm, or entity any Confidential Information. Furthermore, Seller retains exclusive ownership of all of its Confidential Information, and Buyer obtains no license or other rights thereto.  Seller shall also have exclusive rights to any improvements, modifications, or variations of the goods and services provided under these Terms, and Seller’s Confidential Information, including, without limitation, any and all patent, copyright, trademark, trade name, or other intellectual property rights, and Buyer shall not disassemble or reverse engineer the any of the foregoing. Buyer shall promptly furnish Seller with copies of any and all detailed and assembly drawings, schematics, bill of material, and all electrical, mechanical, and hydraulic documentation along with any and all related documents (“Documents”). Upon completion of any order or upon written request of Seller, Buyer shall immediately deliver to Seller all final copies of the Documents, and Seller shall own such Documents, and Buyer shall immediately return all Confidential Information to Seller.  The Buyer hereby agrees that if Buyer breaches this subparagraph, Seller shall incur irreparable injury and harm and money damages would be an insufficient remedy, and as such, and in addition to all other remedies, Seller shall be entitled to seek injunctive relief restraining Buyer from breach of this subparagraph.

4. Delivery period. The delivery period shall commence as soon as we have confirmed the order in writing, have in our possession all the data, specifications and drawings supplied by the Buyer and after we, where applicable, have received the installment to be paid by the Buyer on placing the order. The delivery period may be extended, at Seller’s absolute discretion, if the Buyer requests changes to be made to the goods to be delivered, and such changes are accepted by Seller. The delivery period may also be extended by the length of time any amount to be paid by the Buyer is overdue, or by the length of time force majeure, as referred to in these Terms, has been sustained. The delivery period shall terminate when the goods are ready in our factory for pre–delivery inspection by the Buyer, or, if they are not to be inspected in our factory by the Buyer, when they are ready for dispatch.

The delivery period is approximate. Seller shall have no liability for exceeding the specified delivery period, and Buyer shall not be entitled to compensation nor to suspend or cancel the agreement.

Subject to these Terms, the delivery times communicated by Seller in our offers, as well as our order confirmations and any further communication, are valid after full technical approval of the drawings by the Buyer. Approval must be delivered to Seller by Buyer in writing and indicate our order number.

5.  Modifications. No salesman or other party is authorized to bind Seller by any agreement, warranty, statement, promise or understanding not contained herein. No modifications of these Terms shall be binding on Seller unless the same are approved in writing by authorized personnel of Seller at our headquarters in Louisville, Ohio.

6. Changes in Specifications. If Buyer desires changes or revisions in specifications, designs, drawings, delivery period or any other material term upon which Seller’s quotation is based, such changes or revisions shall at Seller’s sole discretion, and if accepted by Seller, shall be charged to and paid for by Buyer at Seller‘s applicable rates therefor, and the time for performance on the part of Seller shall be extended, at Seller’s discretion, to cover time lost and/or additional work involved and time required for making any such requested changes and/or revisions.

7.  Inspection. The Buyer or Buyer’s representative shall have the right, at Buyer’s sole cost and expense and at its own risk, to inspect the goods at our factory before delivery upon prior written request to us. The inspection shall occur at a reasonable time to be specified by us after receipt of the written request. If the Buyer or Buyer’s representative, despite expressing a desire to be present at the inspection and/or pre– purchase inspection and after timely notification by us, fails to attend, Buyer shall waive its right to be present and/or conduct such inspection, the inspection shall be deemed to be executed in Buyer’s presence and the reports by Seller shall be binding upon Buyer.

Special tests not included in Buyer‘s specifications upon which Seller‘s quotation is based shall be charged to and paid for by Buyer as a change in specification as provided herein, and any such special tests shall be further subject to these Terms in all respects.

In the event that we undertake to install the goods on site, the Buyer shall give us the opportunity to carry out tests, take inspection measures, and make any changes we deem necessary. The Buyer shall provide us, at Buyer’s sole cost and expense, with all company facilities and utilities (including, without limitation, gas, water, electricity, steam, heating, compressed air, lighting, etc.) required and usually employed for post–delivery inspection and for tests or inspection measures. Buyer shall promptly pay or reimburse Seller upon invoicing for all costs and expenses incurred by Seller arising from or relating to Buyer’s breach of this subparagraph. 

8.  Delivery, risk and transfer of ownership. Unless otherwise specifically stated herein, delivery and prices are F.O.B. Seller’s shipping point. Buyer shall assume all risk of loss and damage in transit irrespective of declarations the carrier may require from us. If goods which are ready for dispatch cannot be shipped immediately due to circumstances beyond our control, we shall be entitled to store said goods in our factory and/or elsewhere, and/or insure against damages and loss for the Buyer‘s, at Buyer’s sole cost and expense and at Buyer’s risk. Any costs or expenses accruing under this subparagraph shall be invoiced to Buyer in accordance with these Terms. Delivery may, at our discretion, also be made in installments. If delivery is made in installments, the Buyer shall be obliged to pay the relevant invoices, according to the prescribed payment and delivery schedule, as if they were a single transaction. The title to and right to possession (but not the risk of loss) to goods delivered by us shall only be transferred to the Buyer when Buyer has fulfilled all of Buyer’s obligations arising from these Terms or any other order or agreement related to said goods. .

Unless otherwise agreed upon in writing, Buyer is obligated to accept the goods upon their completion. If the Buyer is unable to accept the goods, they must immediately notify Seller in writing. Seller may store the materials and products commissioned by the Buyer at the Buyer’s expense as provided hereunder. By storing the goods, the Buyer agrees that the goods are transferred into Buyer’s possession and assumes all risk of damage or loss. In the event of storage, an invoice for the commissioned product will be issued promptly. The costs for storage will be invoiced to the Buyer after the storage period is completed. Seller agrees to store the goods in accordance with the storage conditions outlined in the operating instructions, or otherwise in a commercially reasonable manner, as determined by Seller. 

9.  Payment. Unless agreed otherwise in writing, payment in full of the agreed prices shall be made by the Buyer within 30 days of the invoice date. Any invoices not paid when due shall be subject to a late charge at the rate of one and one– half percent (1½%) per month or the highest rate allowable by law, if lower. We shall have the right to require full or partial payment in advance at any time, if, in our opinion, the financial condition of the Buyer does not justify the terms of payment specified. In the event the Buyer is adjudged bankrupt or insolvent or he fails to fulfill, fails to fulfill on time or only partially fulfills Buyer’s payment obligations, he shall be in default and the money owed to us shall be payable on demand, without serving notice of default. In addition, we shall have the right to suspend or cancel every agreement with the Buyer and retain the right to take back the delivered goods (for the Buyer’s account).

Buyer shall be responsible for, and shall promptly pay upon demand, all costs, including without limitation attorneys‘ fees, courts costs and investigative fees, collection costs and any other cost or expense incurred by us to collect the amounts owed by the Buyer arising from these Terms or the provision by Seller of goods and services hereunder. The Buyer shall also owe interest at the rate of one and one-half percent (1½%) per month or the highest rate allowed by law, if lower, on all the costs and expenses set forth in this subparagraph. Any amounts paid by Seller under these Terms shall first be deducted from any interest accrued on amounts due under these Terms, then from such costs and expenses, and finally from the principal amount due under these Terms.

10.  Rejection of Goods. All rejections of goods delivered by us shall be submitted to us in writing,  within14 days of Buyer’s receipt of the goods in question. Complaints about visible faults, which can be identified in inspections or pre–purchase inspections by or on behalf of the Buyer, shall be made immediately during the inspection or pre-purchase inspection. In the case of any rejection or complaint, Seller shall have an opportunity to cure any defect or variation from specifications. If the Buyer does not reject the goods within fourteen (14) days of receipt, the goods shall be deemed accepted by Buyer.

11. Limited Warranty/liability. Upon payment in full and subject to these Terms, Seller warrants the goods to be free from defects in workmanship and material for a period of twelve (12) months after termination of the delivery period, as referred to in Section 4. The Seller shall have no liability to Buyer in respect of  any goods sold after the expiration of the applicable warranty period.

In complete fulfillment of this limited warranty, we shall repair in our factory, or at our discretion, on site, detected faults in said products; provided, however, that Buyer shall pay any and all costs of equipment removal and installation, and costs of transporting the product to and from our factory. 

In no event shall it be the responsibility of the Seller to ensure and/or provide access to the equipment for the purpose of repairing any claimed defect, nor shall Seller be responsible for the removal, disassembly, replacement or reinstallation of any equipment, materials or structures to the extent necessary to permit Seller to perform its warranty obligations. It shall be the responsibility of the Buyer to ensure and provide access for Seller to repair any defect and shall be the responsibility and expense of the Buyer to facilitate the removal, disassembly, replacement, or reinstallation of any equipment.

Notification. The Seller shall be provided written notice and a complete and accurate description of any alleged manufacturing defect within fourteen (14) days after Buyer discovers, or should have discovered, a manufacturing defect. Failure to provide notice of an alleged defect within the aforementioned time period shall void the limited warranty contained in these Terms with respect to the alleged defect. To the extent not prohibited by applicable law, all lawsuits to enforce this limited warranty shall be instituted within one (1) year of the written notification of the defect, or such lawsuits shall be time-barred by this warranty.

The Buyer shall provide the Seller an adequate time from the date of notification to investigate and repair defects. In the event the Buyer has notified the Seller regarding a defect and no defect can be determined for which the Seller is responsible, the Seller is entitled to compensation from the Buyer for any expenses incurred by the Seller in investigating the defect and making such determination. Prior to repairing a defect, the Seller reserves the right to study the periphery and the historic loading and excitation data of the transformer at its place of use, and to complete an inspection of load tables.

Warranty Conditions. The following are conditions precedent to any obligation of the Seller under this limited warranty: (i) Buyer (or its contractors, agents or representatives) shall not have made or performed any modifications, repairs, dismantling and/or other material work on the transformer without prior written notice to and consent of the Seller; (ii) Buyer shall follow all requirements for maintenance in the Operation & Maintenance Manual for the specific transformer. Buyer shall keep an accurate and complete logbook of all maintenance performed on the transformer and of the history of service conditions (including load flow over time) and of abnormalities (such as abnormal voltages, short circuits, etc.) that have occurred in the network to which the transformer is connected. All logbooks shall be provided to Seller at our request upon the report of a warranty claim; (iii) The transformer must be protected from voltage surges by appropriate devices. It is the Buyer’s responsibility that the occurring values do not exceed the values of the transformer’s design. Trip and alarm contacts must be connected at all times; and (iv) Buyer must store, install and operate the goods in accordance with our Operation and Maintenance Manual and standard industry practice.

Warranty Exclusions. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS OR PROFITS, LOSS OF USE, INSTALLING TEMPORARY EQUIPMENT, OR INCREMENTAL COSTS OF SUPPLY SERVICES, EVEN IF SELLER IS ADVISED, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.

The Seller shall not be liable for parts, materials, add-ons or accessories of third parties that were specified by the Buyer, installed by the Buyer or Buyer’s vendors, or that have not been approved in writing by the Seller. The Seller shall not be liable for defects that occur in parts, materials, add-ons or accessories ordered from a third party that are not under warranty of such third party at the time the notice of defect is provided. The Seller shall not be liable for defects caused by vandalism, improper installation or repairs by the Buyer or third party, improper maintenance, or improper use.

The limited warranty does not apply to defects caused in whole or in part by normal wear and tear, overloading, improper working equipment other than the goods, incomplete site work, unfit site preparation and/or chemical, electro technical or electrical influences, including but not limited to lightning, voltage surges and, acts of terrorism, riot, invasion, fire, storm, flood, earthquake, explosion, other natural disaster, acts of God, or any other similar cause or causes beyond Seller’s control.  The limited warranty does not apply to any defect resulting from any applicable foreign, federal, state or local laws, regulations, orders, judgments, decrees, certifications or standards, if and only to the extent that such a violation is solely caused by the goods’ compliance with specific requirements stipulated by Buyer.

Work on Site and Repair. In the event that repairs are executed on site, the Buyer shall be responsible for providing adequate working access to the goods (including removal, disassembly, replacement or reinstallation) and shall provide Seller with all facilities and utilities required and usually employed for the repair of the product. In the event the Seller replaces parts/products in compliance with its warranty obligations, the title to the replaced parts/products shall automatically pass to Seller. Repairs will be carried out on site, unless the Seller deems it is necessary in its sole discretion to send back the defective part or transformer to a repair facility for repair or replacement.

Addition of Diagnostic and Monitoring Equipment. The Seller reserves the right to add, to build in or supply (without having a purchase order for such an addition and at no cost to the Buyer) diagnostic and monitoring equipment, which it considers, in its sole discretion, necessary to evaluate the product. The Seller will notify the Buyer should such additions be deemed necessary.

The furnishing of warranty services hereunder shall not extend the warranty period on the goods. While the goods are in transport to, or in our factory for repair, the goods shall be transported and kept at the Buyer’s risk. Where the defect has not been successfully remedied, in the Seller’s sole opinion, the Buyer is entitled to a reduction of the Purchase Price of the transformer in proportion to the reduced value of the transformer.

THE LIABILITY OF SELLER UNDER THIS LIMITED WARRANTY (EXCEPT AS TO TITLE) OR FOR ANY LOSS OR DAMAGE, WHETHER THE CLAIM IS BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, SHALL NOT EXCEED THE COST OF CORRECTING DEFECTS IN THE GOODS AS HEREIN PROVIDED AND, UPON THE EXPIRATION OF THE WARRANTY PERIOD, ALL OF SELLER’S LIABILITY SHALL TERMINATE. THE FOREGOING LIMITED WARRANTY SHALL CONSTITUTE THE EXCLUSIVE REMEDY OF BUYER AND THE EXCLUSIVE LIABILITY OF SELLER.

THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, AND SELLER MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE, CONDITION, DESIGN OR OPERATION OF THE PRODUCT, THE QUALITY OR CAPACITY OF THE MATERIALS IN THE PRODUCT OR WORKMANSHIP IN THE PRODUCT, NOR ANY OTHER REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR ARISING BY OPERATION OF LAW, TRADE USAGE OR COURSE OF DEALING, EXCEPT AS SET FORTH HEREIN.

12.  Protection against Infringement. In the event any equipment manufactured by Seller is to be made in accordance with drawings, samples or manufacturing specifications designated by Buyer, Buyer agrees to indemnify and hold Seller harmless from any and all damages, costs and expenses (including attorneys‘ fees, investigative fees, expert fees and court or arbitration costs) relating to any claim arising from the design, distribution, manufacture or use of the equipment or arising from a claim that such equipment furnished to Buyer by Seller, or the use thereof, infringes any patent, foreign or domestic, and Buyer agrees at its own expense to undertake the defense of any suit against Seller brought upon such claim or claims.

13.  Indemnification. Buyer shall defend, indemnify and hold harmless Seller, and its directors, officers, shareholders, members, managers, employees, representatives, agents, successors, assigns, customers, and end-users (collectively, “Indemnitees”) from and against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost 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 (collectively, “Losses”) arising out of or occurring in connection with the goods or services purchased from Seller under these Terms, including, without limitation, defects in the design of goods provided by Buyer, breach of these Terms, the negligence of Buyer or any agent or representative of Buyer, or any other act or omission of Buyer, its employees, representatives, agents or subcontractors. 

14. Exclusivity of Remedy and Limitation of Liability. Except as otherwise expressly provided herein, Seller’s liability for any claim of any kind, whether in contract or in tort (including negligence and strict liability), shall not exceed the purchase price of the goods or services furnished under these Terms, or the portion thereof which gives rise to the claim. In the event that Buyer claims that Seller has breached any of its obligations with respect to the goods, Seller may request the return of the equipment and tender to Buyer the purchase price paid therefor by Buyer and in such event Seller shall have no further obligation under these Terms or any other order or agreement with Buyer except to refund such purchase price upon redelivery of the equipment. If Seller so requests the return of the goods, the goods shall be redelivered to Seller in accordance with the Seller‘s instructions at Buyer’s expense. THE REMEDIES PROVIDED FOR IN THIS SECTION AND THE SECTION ENTITLED “LIMITED WARRANTY/LIABILITY“ SHALL CONSTITUTE THE SOLE RECOURSE OF BUYER AGAINST SELLER FOR BREACH OF ANY OF SELLER’S OBLIGATIONS UNDER THESE TERMS, WHETHER THE CLAIM IS MADE IN TORT OR IN CONTRACT, INCLUDING CLAIMS BASED ON WARRANTY, NEGLIGENCE, STRICT LIABILITY, ENVIRONMENTAL RELEASE, DECEIT, FRAUD, MISREPRESENTATION OR OTHERWISE. THIS CLAUSE SHALL SURVIVE THE TERMINATION OF EXPIRATION OF THESE TERMS AND ANY UNDERLYING AGREEMENT BETWEEN BUYER AND SELLER. 

IN NO EVENT SHALL SELLER BE LIABLE UNDER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS OR PROFITS, LOSS OF USE, INSTALLING TEMPORARY EQUIPMENT, OR INCREMENTAL COSTS OF SUPPLY SERVICES, EVEN IF SELLER IS ADVISED, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. 

15. Force Majeure. Seller shall not be liable for failure to perform or for delay in performance due to circumstances beyond Seller’s control, including without limitation war, danger of war, natural disasters, unrest, strikes, lockouts, fire, epidemics, government measures, embargoes, blockades, congestion, frozen waterways, unhardened or insufficiently hardened roads, delays or other issues in Seller’s supply chain. In the event of the foregoing, Seller shall be entitled to suspend or cancel the agreement without any further obligation on our part.

16. Installation on site. If we have undertaken in our offer or by written modification to install the goods on site, the transportation of the goods and the preparation of the location (concrete pads, fences, anchor bolts) in which the goods are to be installed shall be for the Buyer‘s account and risk. If the Buyer carries out or employs third parties to carry out one or several of these activities, Buyer shall be completely responsible to us for the correct execution of said activities. The Buyer shall provide, at Buyer’s expense all hoisting and similar machines, equipment, utilities and company facilities which we deem necessary for the installation of the goods The Buyer shall be liable for any failure to fulfill the obligations stated in this paragraph. The Buyer shall be liable for all damage to and loss of material, equipment and tools supplied by Seller to the place of installation. Seller shall not be liable for damages which may be sustained to or by property or persons during the installation on site unless said damages are attributable to our gross negligence.