DSSM General Terms & Conditions of Sale and Service

1. CONTRACT – These terms and conditions, together with any other supplemental written terms we give you pertaining to your order or service agreement, form a contract between you, the buyer of certain products (including parts, equipment and other merchandise), software license, and/or services (the “Buyer”), and us, the DSSM entity identified on the quote, order acknowledgement, service agreement, invoice, or other order document we give you (“DSSM”). The rights and obligations identified in this contract apply to Buyer’s purchase of the products, software license, and services identified in the DSSM order documents. If Buyer’s order includes software subject to an end user license agreement (“EULA”), the terms of the EULA also apply and have priority over these terms. Terms and conditions that are different or changed from these only apply if both parties agree to them in writing. Terms or conditions included on Buyer’s forms, including Buyer’s standard terms and conditions of purchase are not part of this contract. Buyer’s receipt of products, software license, and/or services establishes its unqualified acceptance of these terms and conditions.
2. QUOTATIONS, PUBLISHED PRICES AND PRODUCT INFORMATION – Quotes and other offers of sale automatically expire 30 calendar days from the date issued unless otherwise stated, and unless DSSM withdraws the quote or offer earlier, which it may do any time prior to Buyer’s acceptance of the quote or offer. Quotes and offers relating to custom products or software may rely on certain information and circumstances, including information Buyer provides. If information or circumstances on which a quote or offer relies change, DSSM may adjust its quote or offer. Published prices are not offers to sell and may be changed without notice. DSSM may change product or software specifications without notice unless it agreed to the specification(s) in writing. Prices do not include any taxes, shipping, packaging, handling, insurance, duties, inspection fees, permit fees, installation, or other costs or services unless otherwise specified in the DSSM order documents. DSSM may choose to accept or reject any order; DSSM will indicate order acceptance: (a) with a written order confirmation; or (b) by executing the order. Specific product characteristics, including but not limited to product weight, dimensions, value, return on investment, tolerance, and other technical data are not guarantees of those characteristics and are provided for information only. Buyer is not permitted to disclose any quotes, prices, specifications, or product information to any third party without DSSM’s prior written consent.
3. TAX – If local law requires DSSM to collect any tax from Buyer it will be added to Buyer’s invoice and Buyer will be responsible to pay it, unless Buyer gives DSSM a valid tax exemption certificate. If an exemption certificate Buyer gives DSSM is later determined to be invalid, then Buyer will pay the previously unpaid tax.
4. TERMS OF PAYMENT – Payment terms are stated on the DSSM order documents. If no payment terms are stated, payment is due net 30 calendar days from the date of invoice. Buyer may not retain any payment it owes DSSM under this contract, or otherwise set-off any amount it owes DSSM under this contract, for disputed claims. Amounts past due are subject to a service charge equal to the greater of 1.5% per month (or fraction thereof) or the maximum contract rate permitted by law. Subject to the warranties expressly stated below, all sales are final without right of return.
5. SHIPPING HANDLING AND DELIVERY – Shipping terms are stated on the DSSM order documents. If no shipping terms are stated, shipping is Ex Works from DSSM warehouse. Delivery and service dates are estimates unless DSSM expressly agrees in writing to a fixed date or schedule. DSSM will use commercially reasonable efforts to meet delivery and service date estimates. All delivery and service dates are conditioned on DSSM’s timely receipt of all necessary information and approvals. If Buyer causes a delay in delivery DSSM will store and handle all items at Buyer’s risk, and will invoice Buyer for the unpaid portion of the contract price, plus applicable storage, insurance, and handling charges. DSSM may make partial shipments. DSSM will not accept responsibility for any shortages or damages unless Buyer retains all shipping containers and packing materials for inspection.
   5. Installation – The cost of installation or any related compliance test is not included in the price of the products or service unless it is specified in the Order and approved in our Confirmation of Acceptance of the Order. Only DSSM’s authorized technicians are permitted to install, maintain, service and repair the products where it is necessary to comply with the warranty of the manufacturer. If DSSM needs to install the products DSSM will not be liable for any costs or losses resulting from any delay in the installation.
6. WARRANTIES AND IFU: ABSENT A SEPARATE WRITTEN WARRANTY DSSM ISSUES BUYER, DSSM EXPRESSLY WARRANTS ITS PRODUCTS, SOFTWARE, AND SERVICES SOLELY AS SET FORTH IN THIS SECTION. TO THE FULLEST EXTENT ALLOWED BY LAW, DSSM DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). THESE WARRANTIES MAY BE TRANSFERRED TO A SUBSEQUENT PURCHASER OF PRODUCTS OR A SUBSEQUENT LICENSEEE OF SOFTWARE ONLY WITH DSSM’’S PRIOR WRITTEN CONSENT. IN ADDITION, THE FOLLOWING CONSTITUTES BUYER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH BY DSSM OF THIS WARRANTY.A. PRODUCT – It is essential for Buyer to follow the installation information, product and system manuals, operating and safety instructions, and other documentation and specifications DSSM provides with the products; DSSM disclaims any liability, including warranty liability, if Buyer does not follow such information. All Products will be deemed accepted upon delivery unless Purchaser notifies DSSM in writing within ten (10) days of delivery of any claimed defect. DSSM warrants that under normal use: (i) its products, except for replacement parts, will be free from defects in workmanship and materials and the products will substantially conform to DSSM’s product specifications for one year from the date of original installation/use, or 18 months from the date it is shipped from DSSM, whichever occurs first; unless provided differently in the applicable products specifications which shall prevail and (ii) replacement parts will be free from defects in workmanship and materials for 90 days from delivery. Should the defects described be found and reported during the term of the warranty, DSSM will, at its option, refund the purchase price, replace the products, or correct the defects by furnishing replacement parts and labor free of charge. Travel up to 80 kilometers (50 miles) from our nearest service representative or authorized service provider is free of charge for valid warranty claims.This Limited Warranty is for Buyer’s exclusive benefit and is nontransferable. DSSM makes no warranties to any third parties whatsoever. Buyer shall make no warranty on DSSM’s behalf, and no employee of DSSM is authorized to permit Buyer to do so. Buyer conclusively agrees that under all circumstances this limited warranty fulfills its essential purpose. This limited warranty only applies to DSSM products distributed directly by DSSM or purchased directly from DSSM in the country where the DSSM office identified on the DSSM order documents is located as evidenced by an invoice from DSSM.B. SOFTWARE – If there is no EULA, DSSM grants Buyer a non-exclusive, non-sublicensable, and non-transferable right to use the software ordered for Buyer’s internal purposes only. Buyer may not reverse engineer, decompile, or disassemble any software it licenses from DSSM. If it is properly installed according to specifications and system requirements, DSSM warrants the software it develops will perform substantially the functions described in the software documentation it provides or, in the absence of any software documentation, as otherwise agreed in writing. DSSM does not warrant that the software is error-free, that Buyer will be able to operate the software without interruption, that third party interfaces or systems connected to the software will operate without interruption, or that the software will be free of vulnerability to intrusion or attack. Absent a separate warranty DSSM communicates to Buyer in writing, the warranty period for operating software is the same as the warranty period for the product it’s purchased with. The warranty period for any other software or software feature is 90 days from the date of delivery. For avoidance of doubt, our warranty includes bug fixing, but excludes any new features. Except as may be agreed otherwise in writing, DSSM provides no warranty for software specifically developed, amended, or customized for Buyer. These warranties also apply to any new releases and service DSSM may deliver in the futureC. SERVICE – DSSM warrants that services will be performed in a workmanlike manner in conformity with standard industry practice. Should any nonconformity be detected within 30 days after the work is completed and Buyer gives DSSM prompt written notification, DSSM will supply the necessary service, direction, or consultation to correct the nonconformityD. GENERAL – The foregoing warranties are further subject to the following general conditions: (i) Consumables, accessories, normal wear and tear, wear parts, and perishables are expressly excluded. (ii) If Buyer requests warranty work during non-standard work times Buyer will be charged for premium time. (iii) These warranties do not apply where DSSM’s products and/or software has been subjected to: accident, alteration, misuse, abuse, failure by Buyer to ensure proper storage, operation and/or maintenance, installation or servicing by personnel DSSM doesn’t authorize, the addition or supply of product or software not approved for incorporation into DSSM products or software, environmental or operational conditions, or software or interfacing Buyer or a third party provide and any other causes DSSM is not responsible for. DSSM warrants that its products are capable of being adjusted to meet DSSM’s printed specifications, if any for the period of warranty above stated when properly installed and used. (iv) Products of other manufacturers that DSSM sells are warranted by DSSM solely to the extent of any remaining warranty provided by the original manufacturer. (v) If DSSM repairs products, such repair work will not extend existing nor generate new warranty coverage for the product as a whole or for those parts not repaired or replaced by DSSM. Unless Buyer gives DSSM written notice in advance, and DSSM agrees its warranty still applies, all warranties are void if product is moved outside the country DSSM delivered it to.E. METHODS OF CORRECTION OF DEFECTS DURING WARRANTY – DSSM may attempt to diagnose and resolve defects over the telephone or electronically. Certain products may contain remote support capabilities for direct problem reporting, remote problem determination, and resolution. When Buyer contacts DSSM for warranty work, Buyer must follow the problem determination, resolution, and procedure that DSSM specifies. DSSM may require return of the part or product to its depot for service or to assist in problem determination. If DSSM determines on-site work is required, a service technician will be scheduled. If Buyer gives DSSM notice of a defect and requests on-site work when the defect could have been remedied remotely, or if DSSM responds to Buyer’s notice of defect and no defect is found for which DSSM is liable, DSSM is entitled to compensation for any work performed and costs it incurred as a result of Buyer’s request. Failure to install and use available remote connectivity tools and products for direct problem reporting, remote problem determination, and resolution may result in increased response-time and additional costs to Buyer.
7. INDEMNITY – DSSM will pay Buyer for Buyer’s losses that arise directly from a third party’s bodily injury (including death) or damage to a third party’s property if the injury or damage: (i) occurred in the course of DSSM’s work; (ii) occurred on Buyer’s property; and (iii) was exclusively caused by DSSM’s negligent act or omission. Losses DSSM pays for may include reasonable legal fees and settlements of claim or suit. DSSM’s obligation to pay for Buyer’s losses arise only if Buyer gives DSSM prompt written notice of the loss, based on when Buyer should have reasonably anticipated the loss. If Buyer asks DSSM to pay for its loss it gives DSSM the sole and exclusive right to manage the defense of any claim related to it, and DSSM is authorized to settle or compromise such claims at its sole and exclusive discretion; and Buyer must cooperate in the defense of all claims as DSSM deems necessary.
8. PATENT INFRINGEMENT – DSSM will defend any suit brought against Buyer if it is based on a valid claim that products or software of DSSM ‘s design that Buyer purchased under this contract, or any part thereof, constitutes an infringement of any applicable patent. DSSM ‘s obligation arises only if: (a) Buyer promptly notifies DSSM of the claim, in writing, and gives DSSM the authority, information, and assistance necessary to defend the claim; and (b) the alleged infringement is not the result of a design or other special requirement specified by Buyer, or the result of the application or the use to which Buyer or others put the products or software. DSSM will pay all damages and costs finally awarded against Buyer only if DSSM has the exclusive right to defend, settle, or compromise the suit and Buyer takes no action that damages DSSM ‘s ability to conduct an effective defense, settlement, or compromise. Upon receiving notice from Buyer of an allegation that product, software, or a part infringes any patent, DSSM may, at its expense and option, either: (i) obtain for Buyer the right to continue using such products, software, or part; (ii) replace the products, software, or part with non-infringing products, software, or part; (iii) modify the product, software, or part so that it becomes non infringing; or (iv) remove the product, software, or part and refund the purchase price and all related transportation and installation costs. This is DSSM ‘s entire liability to Buyer for patent infringement.
9. REGULATORY LAWS AND OR STANDARDS – DSSM behaves in accordance with relevant laws. DSSM also takes reasonable steps to keep its products compliant with standards and regulations that may apply to Buyer’s use of DSSM’s products. DSSM makes no promise or representation that its products will conform to any laws, regulations, codes, or standards, except as explicitly specified and agreed upon in writing by an authorized officer. Buyer is responsible for the correct installation and operation of the products in compliance with all applicable laws and regulations.
10. INTELLECTUAL PROPERTY – Unless DSSM expressly agrees in writing to the contrary, DSSM does not transfer to Buyer any right of ownership in any patents, copyrights, trademarks, technologies, designs, specifications, drawings, or other intellectual property relating to the products, software, and/or services. Except as otherwise provided in an applicable EULA, the software license rights granted are non-exclusive, non-sublicensable, non-transferable, and limited to use for agreed purposes only.
11. DISCLAIMER OF DAMAGES – Regardless of legal reason, DSSM will be liable without limitation for its deliberate fault and gross negligence and for injuries to life, limb and health. In the case of an ordinarily negligent breach of duties fundamental to the contract (a duty, the performance of which actually makes possible the performance of the contract in the first place and on which a contracting party regularly does and may rely) DSSM’s liability will be limited to the foreseeable loss in accordance with standard contract conditions. In other respects DSSM’s liability will be excluded. These limitations on liability will not apply to the extent that DSSM has maliciously concealed a defect or has given a guarantee for the respective characteristics of the goods. The same provision will apply for claims by Buyer based on the Product Liability Law. The personal liability of DSSM’s legal representatives and vicarious agents, if it is incurred, will be limited like DSSM’s own liability in accordance with the above provisions.
12. LIMITATION OF LIABILITY – DSSM is not liable for any loss, claim, expense, or damage caused by, contributed to, or arising out of the acts or omissions of Buyer or third parties, whether negligent or otherwise. In no event will DSSM’s aggregate liability for any and all types of damages or losses related to this contract or the products, software, or services sold, licensed, or delivered pursuant hereto exceed the cost of the item giving rise to the claim, whether based in contract, warranty, indemnity, or tort (including negligence). And any suit arising hereunder must be commenced within one year from the date on which the cause of action accrues.
13. NO RESPONSIBILITY FOR GRATUITOUS INFORMATION OR ASSISTANCE Except for fraudulent misrepresentations, DSSM is not responsible for any information, assistance, or advice given to Buyer if such information, assistance, or advice was not required by this contract.
14. INSURANCE – Upon request, DSSM will provide reasonable evidence of insurance showing its standard coverage and limits or relevant sublimits. Buyer agrees to keep such information strictly confidential. DSSM does not provide third parties direct access to its insurance or give additional rights to its insurance, such as naming additional insured parties.
15. FORCE MAJEURE – Except for payments owed by Buyer, the period for performance of this contract will be reasonably extended if a party defaults or is delayed in performing their obligations under this contract, for reasons beyond their reasonable control. Strikes, insurrection, acts of God, war, terrorist activities, emergencies, shortages or unavailability of materials, supply chain interruptions, weather, change in law, and other similar causes are among the reasons, but are not the only reasons, that are beyond a party’s reasonable control.
16. EXPORT CONTROL – Buyer acknowledges that the products or software may include technologies and software that are subject to export control regulations in Europe, the United States of America, or other countries in which the products or software are delivered or used. Buyer is solely responsible for complying with these restrictions if it exports or re-exports the products or software. Buyer agrees to indemnify and hold DSSM harmless from any violation of export restrictions by Buyer or Buyer’s employees, consultants, agents, or customers cause.
17. INTERPRETATION – If any of these terms and conditions conflicts with or is invalid under applicable law, these terms and conditions will be read as if such term or provision was not included. The invalid, illegal, or unenforceable provision will be deemed automatically modified and, as so modified, included in these terms and conditions. Such modifications will be made to the minimum extent necessary to make the provision valid, legal, and enforceable. DSSM’s waiver or excuse of any noncompliance with these terms and conditions does not constitute a waiver or excuse of any prior or subsequent noncompliance.
18. GOVERNING LAW AND PLACE OF JURISDICTION – The performance of the parties to this contract, and the relationship between the parties, is subject to the applicable laws of the country where the DSSM office identified on the DSSM order documents is located; if the DSSM office identified on the DSSM order documents is located in the United States of America, the laws of the State of New York apply. The exclusive venue for claims arising under this contract is the court with competent jurisdiction nearest to the DSSM office identified on the DSSM order documents; if the DSSM office identified on the DSSM order documents is located in the United States of America, the courts of Erie county, New York, are the exclusive venue. However, DSSM reserves the right to initiate court proceedings against Buyer at any other court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is explicitly excluded.
19. TRACEABILITY AND MEDICAL DEVICE REGULATIONS Buyer acknowledges that DSSM is entitled to retrace or recall products or take other corrective actions to the products. Buyer will actively support DSSM when this need arises. If Buyer resells products to a third party, it will be considered the distributor of the products under applicable laws and must assume all obligations relating thereto, including but not limited to the following: (i) keep all documents and information necessary to retrace or recall products sold to third parties for a minimum of 15 years; (ii) immediately inform DSSM of any complaints or adverse incidents related to the products, and promptly comply with all directions DSSM gives regarding the investigation or handling of the matter; and (iii) comply with all applicable storage and transportation duties.
20. PERSONAL DATA AND OTHER INFORMATION Buyer agrees DSSM is entitled to use, process, and store, and allow a third party to use, process, and store on DSSM ‘s behalf, any data DSSM obtains under this contract, in accordance with relevant laws. Unless specifically agreed in the DSSM order documents, our sales and services to Buyer do not involve any processing by DSSM of personal data for or on behalf of Buyer. In the framework of our relationships with you, we may process limited personal data of some of your employees or contractors which we use in order to respond to your enquiries or requests, and to execute our contracts with you (e.g. to process & execute orders, process payments, arrange shipments and deliveries, and to provide repairs and support services). DSSM will use the contact details obtained from you in the context of your purchase of a product or a service for direct marketing of similar products or services. For more information, please see our Privacy Policy at https://dssm.group/privacy-policy/.BUYER ACKNOWLEDGES THAT IT HAS READ THESE TERMS AND CONDITIONS AND UNDERSTANDS AND AGREES TO ALL TERMS AND CONDITIONS STATED HEREIN, INCLUDING THE LIMITED WARRANTY AND LIMITATIONS OF LIABILITY.

Version July 2023