Terms & Conditions for Fluence US
1. Offer, Confirmation, Agreement
(a) These terms and conditions (“Terms”) apply to the sale or supply of all products or systems (“Products”), and the performance of all services (which includes any software provided as a service) (“Services”) by Fluence Bioengineering, Inc. (“Fluence”) to you (“Customer”) and will therefore form a necessary part of any Offer or Agreement. Customer’s ordering of Products or Services from Fluence constitutes acceptance of these Terms, as such Terms may have been updated through the date of such order. As used herein, “Agreement” means any written agreement for supply, distribution, sale, or license of any Products or Services entered into between Fluence and Customer, or any purchase order that is issued by Customer and accepted by Fluence; and “Offer” means any quotation, proposal or offer provided to Customer by Fluence. Fluence and Customer are individually referred to herein as a “Party”, and collectively as the “Parties”.
(b) Products and Services may include web or mobile applications that may be subject to additional terms (“Additional Use Terms”) or software that may be subject to additional (end-user) software license conditions (“EULAs”), both from either Fluence or an affiliate, or third parties. Such EULAs or Additional Use Terms will be made available together with the web or mobile application or software, as applicable. Except where specified otherwise in a EULA or Additional Use Terms, such EULA or Additional Use Terms will form part of the Agreement. Software will not be sold to Customer, but licensed subject to the license terms in Section 10 below.
(c) In the event of any conflict or inconsistency between these Terms and the terms of any Agreement or Offer, the terms of such Agreement or Offer will prevail. With respect to web or mobile applications or software, any Additional Use Terms or the terms of any applicable EULA will prevail over these Terms.
(d) The terms “agreed”, “consent”, “confirmed”, “accepted”, “informed”, “notified” or “notice” and documents or acts of similar meaning will be deemed to be required to be done in writing, where “in writing” means hand-written, type-written, printed or electronically made, and resulting in a permanent record. The terms “includes” or “including” will be construed without limitation to the generality of preceding words.
(e) Any different or additional terms in any purchase order, blanket instructions, terms of purchase or other writing from Customer will be deemed a material alteration of these Terms and are expressly objected to and rejected and will be of no force or effect. Commencement of performance or shipment will not be construed as acceptance of any of Customer’s terms or conditions. Course of performance or usage of trade will not be applied to modify these Terms.
(f) These Terms may be amended by Fluence by posting an updated version on its website, provided that in respect of an Agreement and an Offer the version of the Terms applicable as of the effective date of the Agreement or the date of the Offer will apply.
(g) Offers by Fluence are open for acceptance within the period stated in such Offer or, in the event that no period is stated, within thirty (30) days from the date of the Offer, provided that Fluence may amend, withdraw or revoke any Offer at any time prior to the receipt by Fluence of the acceptance of an Offer. No order submitted by Customer will be deemed final or accepted by Fluence unless and until confirmed by Fluence.
(h) Customer is solely responsible for the accuracy of any order, including with respect to the specification, configuration or other requirements of Products and Services, and functionality, compatibility and interoperability with other products (not authorized by Fluence), as well as fitness for particular use. Customer warrants that the information provided to Fluence under an Agreement is complete, accurate and true, and Customer acknowledges that a failure to provide complete, accurate and true information or instructions to Fluence may detrimentally affect Fluence’s ability to discharge its obligations or exercise its rights under an Agreement.
(i) Any catalog, specification, price sheet or other similar documentation prepared by Fluence is strictly for convenience only and will not be deemed as an Offer. Fluence believes such documentation is complete and accurate at time of printing, but Fluence does not warrant that such documentation is error free. Fluence will not accept responsibility for any damages in connection with errors of measurements, descriptions, application recommendations and the like.
(j) Products will be supplied in accordance with the standard functionalities, styles and sizes as described in Fluence’s catalogs or, for special or made-to-order Products, in accordance with Fluence’s drawings and specifications sheets. In the event of a conflict between an order of Customer and a drawing or specification sheet from Fluence approved by Customer, the latter will prevail.
(k) Assumptions, exclusions and qualifications stated by Fluence in Offers, Agreements or otherwise will direct the Agreement and will be construed as part thereof and guide its execution and interpretation.
(l) Where the performance under the Agreement relies on the approval, confirmation or acceptance by Customer of a (draft) proposal, design, deliverable, planning or any other action by Fluence, Customer shall do so within the period stated in the Agreement, or, in the event that no period is stated, within seven (7) days after receipt of a request from Fluence, in the absence of a response within such time period Customer will be deemed to have approved, confirmed or accepted as submitted by Fluence.
(m) In the event that Customer resells Products or incorporates Products and/or Services in offerings to its customer, Customer shall ensure that all its customers and/or end users of Products or Services comply with all relevant Customer’s obligations under the Agreement and these Terms, and that the terms of its agreement with each of its customer(s) or end user(s) are consistent with the Agreement and these Terms, failing which Customer shall indemnify, defend and hold harmless Fluence and its affiliates, and their officers, directors, agents, employees, successors, and assigns from and against, all losses, liabilities, costs (including legal costs) and expenses arising out of or in connection with any non-compliance.