Panduit General Terms and Conditions of Sale

Effective Date:  June 1, 2017

These General Terms and Conditions of Sale apply to all purchases of Panduit products and services made directly from Panduit and its subsidiaries and affiliates (hereinafter, “Seller” or “Panduit”).   If Buyer is a Distributor subject to the Panduit Authorized Distributor Policy (the “Distributor Policy”) or is a party subject to a separately signed Agreement with Seller governing its purchases of Panduit Products and/or Services, then such Distributor Policy or signed agreement will have precedence over these General Terms and Conditions of Sale to the extent they conflict with these General Terms and Conditions of Sale.   Purchases of Panduit Products or Services made from authorized Panduit distributors or authorized resellers may be subject to authorized distributors and resellers’ terms and conditions of sale, which in no event will be binding upon Panduit.  These General Terms and Conditions of Sale are in effect as of the time of publication and may change at any time.

  1. Definitions.

                a. “Buyer” means the individual or entity identified on Buyer’s purchase order, or if different, on Seller’s                       Quotation, order acknowledgment or confirmation.

                b. “Deliverables” means all documents, including without limitation, diagrams, drawings, specifications, meeting minutes,                     analyses and reports or any other written material prepared, developed, or created by Seller for Buyer as part of the                     Services delivery process as described in the Statement of Work or Quotation.    

                c. “Hardware” means Panduit’s electrical, data communication and other products that it manufactures and/or sells,                     including related firmware.

                d. “Intellectual Property Rights” means all present and future copyrights, trademark rights, service mark rights, trade                     secret rights, patent rights, moral rights, and other intellectual property and proprietary rights recognized in any                     jurisdiction, including any registrations, applications, renewals and extensions of such rights. 

                e. “Seller” means Panduit Corp. and its subsidiaries and affiliates.

                 f. “Products” means all Hardware and Software. 

                g. “Services” means services that Panduit offers to Buyers, including but not limited to, technical support, assessments,                     implementation, design support and other similar services provided by Panduit and set forth in a Statement of Work or a                     Quotation. 

                h. “Software” means the machine readable, object code version of Panduit’s computer software programs, and any                     subsequent releases, revisions, derivatives or modules and the related documentation.

                 i. “Statement of Work” or “SOW” means the document that describes in detail the Services that Panduit will provide to                     Buyer or Buyer’s customer.

                 j. “Quotation” means a document that is issued by Panduit to Buyer that describes in detail the Products                       and/or Services and prices being offered to Buyer that is in effect when Panduit accepts Buyer’s purchase                       order. The Quotation may be in the form of a Statement of Work, a proposal or any other similar document. 

          2. Orders.

                a. Placing Purchase Orders & Acceptance of Terms and Conditions. To purchase Products or Services, Buyer must                     provide Seller with a valid purchase order, including the purchase order number and all additional information required                     by Seller. Seller will provide written acceptance or rejection of such purchase order. Buyer’s issuance of a purchase                     order to Seller for Products or Services will constitute Buyer’s acceptance of these General Terms and Conditions of                     Sale.  No additions or modifications to these General Terms and Conditions of Sale will be binding on Seller unless                     agreed to in writing and signed by an authorized representative of Seller. Seller specifically rejects all pre-printed, non-                     negotiated terms in Buyer’s purchase orders, standard terms and conditions of purchase or other similar documents.                      Seller’s failure to object to any term or condition in any communication from Buyer will not be construed as an agreement                     to such terms or conditions, nor will it be deemed a waiver of these General Terms and Conditions of Sale. 

                b. Minimum Order Quantities and/or Order Values.   All orders for Products are subject to any applicable minimums set                     forth in the Quotation. Minimum order requirements may be in the form of Product quantities or monetary order amounts.

                c. Order Changes, Substitutions and Cancellations. Orders accepted by Seller are not subject to change or                     cancellation, except as expressly allowed in writing by Seller. Allowed changes to orders may require adjustments in                     price, scheduling and other affected terms and conditions. Restocking, storage or other fees, including reimbursement                     for direct costs, may apply to changed or cancelled orders. Seller reserves the right to substitute using the latest                     superseding revision or series or equivalent Product having comparable form, fit and function.

                d. Expedited Orders. All orders are subject to Product availability and lead times. Orders expedited for shipment are                     subject to additional charges. Contact Panduit Customer Service for questions on lead times and expedited orders.

          3. Prices and Payment Terms

                a. Prices. Except as otherwise provided in a Quotation or a Statement of Work, the prices of Products and Services will be                     Seller’s published list prices in effect at the time Seller accepts Buyer’s purchase order, provided the Buyer’s requested                     shipment date does not exceed thirty (30) days from the date of order. Seller may correct errors or omissions in                     published or quoted prices and/or change its published list prices at any time without notice.  Prices do not include any                     costs related to freight, shipping, handling, storage, insurance, special packaging or insulation, all of which must be paid                     by Buyer. Prices do not include sales, use, excise, customs, value-added or similar taxes, tariffs or duties. Buyer will pay                     or reimburse Seller for all such taxes as may be applicable.

 

                b. Invoicing. Orders for Hardware will be invoiced upon shipment.  Orders for Software will be invoiced to Buyer upon                     delivery. Orders for Services will be invoiced to Buyer upon Acceptance of the Services and/or Deliverables by Buyer per                     Section 5(b) herein. Orders for annual or multi-year technical support and/or maintenance services will be invoiced in                     accordance with a separate agreement regarding such services.  

                c. Currency. Unless otherwise specified in writing by Panduit, prices and invoices will be denominated in the standard                     currency of the Panduit entity for the applicable geographic region.

                d. Payment Terms. Unless otherwise specified in writing, payment terms on invoices are Net thirty (30) days. All payment                     terms are subject to Panduit Credit approval. Other payment terms, restrictions or requirements may apply. Payment by                     Buyer shall not be contingent upon payment by a third party. Buyer shall pay all amounts due in full without any                     deduction, withholding or set-off except as required by law or as agreed to in writing by Seller.  Seller reserves the right                     to withhold shipments and/or performance of Services to Buyers whose account(s) are in arrears.  Withholding of                     shipments or suspension of Services does not relieve Buyer of its obligation to pay for Products and Services previously                     rendered. Late payments will accrue interest at a rate equivalent to one and one-half percent (1.5%) per month or the                     highest rate permitted by law, whichever is less. Buyer shall reimburse Seller for all reasonable costs of collecting any                     payments from Buyer that are overdue including reasonable attorneys’ fees. 

                e. Claims and Errors.  Claims of erroneous charges or for price corrections must be presented within ten (10) days of the                     date of invoice or they may be disallowed. Claims of shortage or incorrect shipments must by presented, in writing,                     within ten (10) days of the date of invoice or they may be disallowed. 

          4. Shipping and Delivery Terms. Unless otherwise stated in a Quotation or SOW, for shipments originating in the United                               States are FOB Shipping Point. Shipments originating outside of the United States will be per the Incoterm indicated on the                         Quotation or SOW.  Seller may make partial shipments and invoice Buyer for partial shipments. Unless specified allowances                       apply, Buyer is responsible for all shipping and handling costs, including any applicable storage, insurance or other costs                             associated with Buyer’s delay in acceptance of delivery or pick up of Products after proper notification of availability for pick                         up has been given to Buyer. At its sole discretion, Seller may ship to specially designated locations specified by Buyer.                                 Additional charges may apply. Acknowledged shipping dates are approximate only and based on prompt receipt of all                                   necessary information from Buyer. Seller will make commercially reasonable efforts to ship the Products by the estimated                           shipping date, but Seller shall have no liability for late delivery, performance or completion. Seller shall be entitled to defer                           delivery until any monies due from Buyer have been received.

          5. Acceptance. 

                a. Acceptance of Products. All Products delivered pursuant to these General Terms and Conditions will be deemed                     accepted upon delivery.

                b. Acceptance of Services.  Unless otherwise stated in a Statement of Work, Buyer or Buyer’s customer must accept or                     reject each Deliverable within five (5) business days of receipt of the Deliverable (the “Acceptance Period”). Use of the                     Deliverables by Buyer or Buyer’s customer, or the failure to reject the Deliverables in writing within the Acceptance                     Period, shall constitute acceptance of the Deliverables by Buyer.   If Buyer reasonably believes that Seller did not                     complete the Services and/or any Deliverables in substantial conformance with the SOW, Buyer must notify Seller in                     writing, with specific reasons delineated, of its rejection of the Services and/or Deliverables within the Acceptance                     period.  Panduit will be given five (5) business days to make corrections (“Correction Period”) so that the Deliverable                     and/or Service substantially conforms with the SOW, unless the SOW specifies a different Correction Period.  At the end                     of the Correction Period, Panduit will re-present the Deliverable to Buyer in accordance with the procedure outlined                     herein. If Panduit does not receive any written rejection or acceptance from Buyer within five (5) days of presenting the                     corrected Deliverable, the Deliverable and/or Service will be deemed to be accepted by Buyer.

 6. Returns. All returns require a Return Material Authorization (“RMA”) issued by Seller PRIOR to the return of material.                          RMAs will not be unreasonably withheld, but are subject to various restrictions including, but not limited to,                                          packaging, quantities and frequency. Restocking fees may apply. Certain Products, including, but not limited to, non-                          standard, custom, made-to-order or obsolete products, are not returnable. Unless Seller is in error, all returns of                                  Products must be shipped freight prepaid by Buyer.

 7. Licensed Software and Firmware. Software and Products that contain firmware are subject to additional terms                                  and conditions set forth in separate Panduit or third-party License Agreements, and such License Agreements will                              control to the extent there is any conflict with these General Terms and Conditions of Sale. In the absence of a                                    separate License Agreement, Buyer is granted a non-exclusive, non-transferable license to use the Software and/or firmware            only in object code form and solely in connection with Seller-provided Products, with no rights to sublicense, disclose,            disassemble, decompile, reverse engineer, or otherwise modify the Software or firmware.

          8. Limited Warranties.

       a. Panduit Limited Product Warranty. The Products are subject to the terms, conditions and limitations of Seller’s                                Limited Product Warranty in effect as of the date of shipment. Seller’s Limited Product Warranty is located on                                      Seller’s website at www.panduit.com/warranty and is incorporated herein by reference.-

                b. Panduit Service Warranty. Seller warrants to Buyer and Buyer’s customers that the Services will be of a professional                     quality conforming to generally accepted industry standards and practices and in conformance with the applicable SOW.

                c. THE FOREGOING WARRANTIES ARE SELLER’S EXCLUSIVE WARRANTIES.  OTHERWISE, SELLER MAKES                       NO REPRESENTATION OR WARRANTY OF ANY KIND REGARDING THE PRODUCTS, SERVICES,                       DELIVERABLES, OR THE RESULTS OBTAINED THEREFROM, WHETHER EXPRESS, IMPLIED OR STATUTORY,                       INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A                       PARTICULAR PURPOSE., AND BUYER AGREES THAT ALL SUCH OTHER REPRESENTATIONS AND                       WARRANTIES THAT ARE NOT EXPRESSLY PROVIDED HEREIN ARE HEREBY EXCLUDED AND DISCLAIMED.                       SELLER WILL NOT BE LIABLE FOR ANY THIRD-PARTY SERVICES OR PRODUCTS EVEN IF IDENTIFIED OR                       REFERRED TO BUYER BY SELLER.

                d. Support and Maintenance/Extended Warranties. Support and maintenance, technical support and any extended                     warranties for Products and/or Services are not included in the prices of the Products and Services, and are subject to                     additional terms and conditions which are set forth in separate Panduit or third-party Support and Maintenance                     Agreements or Policies or in a SOW, and such Agreements/Policies/SOW terms will control to the extent there is any                     conflict with these General Terms and Conditions of Sale.

          9. Disclaimer and Limitation of Liability. TO THE FULLEST EXTEND PERMITTED BY LAW, UNDER NO                 CIRCUMSTANCES WILL SELLER  BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL                 DAMAGES, INCLUDING WITHOUT LIMITATION, ACTUAL OR ANTICPATED LOST REVENUE OR PROFITS, LOSS OF                 BUSINESS OPPORTUNITY OR GOODWILL, LOSS OF ANTICIPATED SAVINGS, COSTS OF PROCUREMENT OF                 SUBSTITUTE PRODUCTS OR SERVICES, LOSS OF DATA, DOWNTIME COSTS, SORTING COSTS, OR ANY LOSS                 DUE TO DELAY OF PERFORMANCE OR DELIVERY, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY                 OF SUCH DAMAGES. SELLER DISCLAIMS ALL LIABILITY RELATIVE TO GRATUITIOUS INFORMATION OR                 ASSISTANCE PROVIDED BY, BUT NOT REQUIRED OF SELLER HEREUNDER.  THE TOTAL LIABILITY, IF ANY, OF                 SELLER, AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND SUBCONTRACTORS                 INCLUDING BUT NOT LIMITED TO LIABILITY ARISING OUT OF CONTRACT, TORT, BREACH OR FAILURE OF                 WARRANTY, OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED THE PURCHASE PRICE PAID BY BUYER FOR                 THE PRODUCT AND/OR SERVICES FROM WHICH THE CLAIM AROSE.  THE PRICE STATED FOR THE PRODUCTS                 AND SERVICES IS A CONSIDERATION IN LIMITING SELLER’S LIABILITY.

        10. Intellectual Property Rights & Indemnification.

                a. Except as otherwise stated herein, or in a written Quotation or Statement of Work, all Intellectual Property Rights in the                     Products and Services belong to Seller, and the Buyer shall not acquire any title, right or interest in such Intellectual                     Property Rights.  Panduit and its subcontractors retain all right, title and interest in any pre-existing intellectual property                     that is owned by Panduit or its subcontractors (“Panduit IP”), and which may be used in carrying out the Services,                     including any modifications or improvements made to Panduit IP during or as a result of the Services to be performed                     under any SOW.  Unless otherwise stated in a Statement of Work or Quotation, upon payment in full of the amounts due                     Seller for the Services, the Deliverables, except for any Panduit IP contained within such Deliverables, shall be owned                     by Buyer or Buyer’s customer. Panduit hereby grants Buyer or Buyer’s customer a worldwide, non-exclusive, royalty-                                   free, perpetual, without the right to sublicense, license to use the Panduit IP that is incorporated in the Deliverables                     solely for Buyer or Buyer’s customer’s own internal use.

                b. Except as provided below, Seller shall defend and indemnify Buyer from and against any damages, liabilities, costs and                     expenses (including reasonable attorneys' fees and court costs) arising out of any claim that Products purchased from                     Seller infringe a valid United States patent or copyright or infringe a trade secret of a third party, provided that (i) Buyer                     promptly provides Seller written notice thereof and reasonable cooperation, information, and assistance in connection                     therewith, and (ii) Seller has sole control and authority with respect to the defense, settlement, or compromise thereof.                     Should any Products become or, in Seller's opinion, be likely to become the subject of such a claim, Seller may, at its                     option, either (x) procure for Buyer the right to continue purchasing and using such Products, or (y) replace or modify                     such Products so that they become non-infringing, or (z) request that Buyer return such Products and, upon receipt,                     reimburse Buyer the full purchase price paid for such Products as full and complete satisfaction for any claims Buyer                     may have against Seller arising from such infringement. In such event, Seller may withhold further shipments of                     infringing or potentially infringing Seller products. Seller's liability hereunder shall not exceed the purchase price paid by                     Buyer for Products found to be infringing.  The foregoing states the entire liability of Seller with respect to infringement of                     patents, copyrights and trade secrets by Seller’s Products or any part thereof or by their operation.

                c. Seller shall have no liability or obligation to Buyer hereunder with respect to any patent, copyright or trade secret                     infringement or claim thereof based upon (i) compliance with designs, plans or specifications of Buyer or Buyer’s                     customer, (ii) use of the Products by Buyer or any agents or customers of Buyer in combination with, or the incorporation                     or embedding of the Products into third-party devices or products where Seller's Product alone would not be infringing,                     (iii) use of the Products by Buyer or Buyer’s customer in an application or environment for which such Products were not                     designed or contemplated, (iv) modifications of the Products by Buyer or any agents or customers of Buyer, or (v) any                     claims of infringement of a patent, copyright or trade secret in which Buyer or any affiliate or customer of Buyer has an                     interest or license.

        11. Remedies for Events of Default. If Buyer (i) fails to pay any amount within thirty (30) days of the due date, (ii) files a                                   petition in bankruptcy or seeks relief under any bankruptcy, reorganization, insolvency, dissolution, liquidation or similar law                         of any jurisdiction, or (iii) becomes unable to pay or suspends payment of its debts as they become due, or if a court issues                         an order appointing a receiver, custodian or administrator over all or part of Buyer’s assets, Seller may terminate any                                   outstanding purchase order. In addition, without waiving any other available remedies, Seller may declare immediately                                 due and payable all sums due and to become due under any outstanding purchase order and/or stop all shipments in                                   progress and future shipments to Buyer until the account is fully paid.

        12. Force Majeure. Seller will not be liable for any loss, damage or delay arising out of its failure (or that of its subcontractors)                           to perform hereunder due to causes beyond its reasonable control, including without limitation, acts of God, acts or                                       omissions of Buyer, acts of civil or military authority, fires, strikes, floods, epidemics, quarantine restrictions, war, riots, acts                           of terrorism, delays in transportation, or transportation embargoes. In the event of such delays, Seller’s performance                                   date(s) will be extended for such length of time as may be reasonably necessary to compensate for the delay.

        13. Export Controls.  If Buyer exports or re-exports the Products, Buyer agrees to comply with all applicable export laws and                           regulations.  If Buyer exports or re-exports the Products, Buyer will, at its own expense, pay for all export licenses, customs                         charges, duties and related fees, and take all other actions required to accomplish the legal distribution of the Product                                 acquired by Buyer.  Buyer shall not, directly or indirectly, sell, distribute, export or re-export, (nor enable any third party to                             sell, distribute, export or re-export) any Products provided hereunder to any embargoed, terrorist or restricted country as                             designated by the U.S. Government or any other country with which commerce or export may be restricted, prohibited or                             otherwise limited by the U. S. Government or by the Territorial government (whether now or in the future). Buyer further                               agrees to provide Seller upon request written assurances of compliance with the requirements of this provision.

        14. No Partnership or Joint Venture. The parties agree that nothing in these General Terms and Conditions of Sale will                                   create any agency, employment relationship, partnership, or joint venture between Buyer and Seller.

        15. Assignment. These General Terms and Conditions of Sale may not be assigned by either party without the written consent                         of the other (which consent may not be unreasonably withheld). However, consent is not required for internal transfers and                         assignments as between Seller and its parent company, subsidiaries or affiliates as a part of a consolidation, merger or any                         other form of corporate reorganization.

        16. Waiver. Seller’s waiver of any breach of any provision contained in these General Terms and Conditions of Sale will not                               waive any other breach by Buyer. Seller’s delay or failure to enforce its rights under these General Terms and Conditions of                         Sale shall not be deemed a waiver of such rights.

        17. Governing Law, Forum and Language.   These Terms and Conditions of Sale are governed by the laws of the State of                             Illinois, and the applicable federal laws and international treaties of the United States of America without regard to choice of                         law principles.  All disputes arising out of these Terms and Conditions of Sale shall be subject to the exclusive jurisdiction of                         the state courts in and for Cook County, Illinois (or, if there is federal jurisdiction, the United States District Court for the                               Northern District of Illinois) and the parties hereby irrevocably agree to submit to the personal and exclusive jurisdiction and                         venue of such courts.  These General Terms and Conditions of Sale shall not be governed by the United Nations                                         Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.  In the event                             that these General Terms and Conditions have been translated into another language for convenience, the parties agree                             that the English language shall be the controlling language of these General Terms and Conditions of Sale.

        18. Entire Agreement. These General Terms and Conditions of Sale together with Seller’s Quotation, Statement of Work and                           order acknowledgment or confirmation, constitute the entire agreement between the parties regarding Buyer’s purchases of                         Seller’s Products and/or Services from Seller. If any provision of these General Terms and Conditions of Sale is held                                   invalid, illegal or unenforceable, such provision will be reformed only to the extent necessary and all remaining provisions                             will continue in full force and effect.