Terms & Conditions

1.  Offer; Acceptance; Complete Agreement

All orders (“Orders”) placed for products (the “Products”) and/or services (the “Services”), as applicable, furnished by BASE Engineering Inc. (“BASE Engineering”) to the purchaser thereof (“Purchaser”) are subject to the terms and conditions set forth herein and any Schedules attached hereto (collectively, these “Terms”), the sales quotation for the Products or Services given by BASE Engineering (the “Offer”), the written order acknowledgment from BASE Engineering accepting Purchaser’s written Order for the Products or Services (the “Order Acknowledgment”), and any confidentiality and/or nondisclosure agreement executed between BASE Engineering and Purchaser (the “NDA”). These Terms, the Offer, the Order Acknowledgment, and the NDA are hereafter collectively referred to as the “Contract,” whether or not specifically referred to. If any provision in the Order Acknowledgment is inconsistent with these Terms, the provision of the Order Acknowledgment shall govern. No additional or different terms or conditions or any modifications, changes, or amendments to the Contract shall be binding upon BASE Engineering unless specifically agreed to in writing by an authorized representative of BASE Engineering. BASE Engineering hereby objects to, and rejects, any additional or different terms already or hereafter proposed by Purchaser, but not expressly set forth in the Contract, whether contained in any documentation or communication from Purchaser or otherwise, including, without limitation, any terms set forth in any Order, acknowledgement, statement of terms and conditions, or any other such document or communication. BASE Engineering’s failure to further object to any of the provisions contained in any documentation of Purchaser’s or any communication of any kind from Purchaser shall not be deemed a waiver of the terms of the Contract or as an acceptance by BASE Engineering of any deviation from the terms of the Contract. BASE ENGINEERING’S ACCEPTANCE OF ANY OR ALL OF PURCHASER’S ORDERS FOR PRODUCTS OR SERVICES IS EXPRESSLY CONDITIONAL UPON PURCHASER’S ASSENT TO THE TERMS OF THE CONTRACT REGARDLESS OF ANY TERMS CONTAINED IN ANY OF PURCHASER’S COMMUNICATIONS OR DOCUMENTS. Sales literature, price lists, illustrations, drawings, samples, photographs, or descriptions and other documents issued by BASE Engineering in relation to the Products and Services are subject to alteration without notice and are intended as a guide only and shall not be binding on BASE Engineering. The Contract constitutes the entire agreement between BASE Engineering and Purchaser with respect to the topics in the Contract, superseding all prior oral or written communications, representations, agreements, and negotiations.

2.  Cancellation and/or Change of Orders

(a) Purchaser’s Order, once accepted by BASE Engineering, shall not be subject to cancellation, change, reduction in quantity, or suspension of deliveries without BASE Engineering’s prior written consent. If BASE Engineering agrees to any such changes, it may invoice the Purchaser for, and the Purchaser shall pay, any and all applicable fees, which may include a restocking fee of 20% on returned equipment (unless explicitly waived by BASE Engineering), expenses already incurred such as materials, labor, production costs, and work in progress, outstanding commitments that cannot be cancelled, and incidental costs and expenses including storage and handling fees.

For software-related Orders, once development or customization work has commenced, cancellation is not permitted. If a change or termination is approved, the Purchaser shall be liable for all work completed to date, along with any associated costs and fees.

(b) If Purchaser requests additions, deletions, or other revisions with respect to BASE Engineering’s standard Product specifications or otherwise accepted in writing by BASE Engineering or specified in the Order (the “Specifications”), BASE Engineering shall advise Purchaser of any changes in pricing, delivery timelines, or other terms that may result from the proposed revision. BASE Engineering is not obligated to implement any requested change unless it agrees to do so in writing. In practice, configuration changes may be implemented through updated documentation, such as revised CAD drawings. If a requested change requires modifications to firmware or software, BASE Engineering may, at its discretion, charge for the work or absorb the cost depending on the scope of the change and the nature of the customer relationship or project.

(c) BASE Engineering reserves the right to cancel any orders placed by Purchaser, or to refuse or delay shipment thereof, if Purchaser: (i) fails to make any payment as provided in the Order or under the terms of payment set forth in any invoice or otherwise agreed to by BASE Engineering and Purchaser; (ii) fails to meet reasonable credit or financial requirements established by BASE Engineering, including any limitations on allowable credit; (iii) otherwise fails to comply with the Order; (iv) otherwise fails to comply with the Contract; (v) becomes debarred, suspended, or identified as a denied party by any applicable government agency; (vi) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors; or (vii) violates or is reasonably believed to have violated, applicable law, including anti-bribery, anti-corruption, or anti-money laundering or privacy laws.

(d) BASE Engineering shall have the right to deliver substitute products for the Products ordered by Purchaser, provided that such substitute products do not materially differ from the ordered Products in terms of overall form, fit, and performance, as determined in BASE Engineering’s sole and complete discretion. BASE Engineering reserves the right at any time to make changes to Products or in the design or specifications of the Products, without liability or obligation to implement such change to any Products previously manufactured, and further reserves the right to discontinue any Product at any time. Drawings, specifications, product finishes, and color shades in BASE Engineering’s literature and advertisements are approximate only and do not constitute a trade description.

3. Prices

(a) All Products are quoted and sold FOB Saint John (BASE Engineering’s plant of manufacture or another location designated by BASE Engineering), Incoterms 2020, and Purchaser shall be responsible for all shipping charges, including, but not limited to, shipping, transportation, duties, and insurance costs, unless otherwise specified in the Order Acknowledgment. Any prepayment by BASE Engineering of certain shipping or handling charges will be added to the Purchaser’s invoice.

(b) The price of the Products or Services will be BASE Engineering’s quoted price in the Offer or, where no price has been quoted (or a quoted price is no longer valid), the price current at the date of the Order Acknowledgment by BASE Engineering. All prices and special terms quoted by BASE Engineering will expire thirty (30) calendar days from the date such pricing or terms were originally proposed by BASE Engineering in the Offer unless otherwise specified or extended in writing by BASE Engineering and are subject to changes in market conditions.

(c) All prices are subject to adjustment on account of Specifications, quantities, shipment arrangements or other terms and conditions, which are not part of the original Offer. If the prices are based on the purchase of a particular quantity of Products and Purchaser fails to purchase that quantity which would justify the pricing granted, BASE Engineering shall have the right, in addition to any other remedies at law or equity, to recover from Purchaser the difference between the stated price and BASE Engineering’s standard prices for such Products in the quantity actually purchased by Purchaser. BASE Engineering’s price(s) are exclusive of any and all existing or future manufacturing, sales, use or similar taxes, customs, and duties which shall be added to the price(s), separately invoiced by BASE Engineering and paid by Purchaser. The Purchaser is responsible for any and all state, local, territory, province, and government related taxes such as but not limited to Value-added tax (VAT). If there is a delay in completion of shipment of Products due to any change requested by Purchaser or as the result of any delay on Purchaser’s part (including, without limitation, in furnishing information required for performance of the Contract), the price(s) are subject to change upon notice by BASE Engineering, even after BASE Engineering’s issuance of an Order Acknowledgment.

(d) BASE Engineering reserves the right, by giving notice to Purchaser at any time before Delivery (as defined below) or the completion of Services, as applicable, to increase the price of Products or Services to reflect any factor beyond the control of BASE Engineering, such as, without limitation, any foreign exchange fluctuation, currency regulation, tariff, or other market fluctuation; imposition or alteration of taxes, duties, tariffs, other governmental charges, or any other fees in the nature of a tax; significant increase in the costs of labor, materials, or other costs of manufacture; any change in delivery dates, or any delay caused by any instructions of Purchaser or failure of Purchaser to give BASE Engineering adequate information or instructions. BASE Engineering also reserves the right to make changes to quoted prices for pricing errors, clerical errors, or other errors or omissions.

(e) Unless otherwise expressly provided in the Order, prices for Services do not include costs of labor to perform remote or on-site specific deployment and training.

(f) Products will be packaged in accordance with BASE Engineering’s standard bulk packaging specifications applicable at the time of shipment, for both domestic and international deliveries, unless otherwise specified in the Order Acknowledgement. On rare occasions, and at the Purchaser’s request, BASE Engineering may agree to apply custom markings or labeling to the packaging, typically at no additional charge unless otherwise notified by BASE Engineering.

4. Terms of Payment

Prices are stated, and all invoices are payable in U.S. Dollars, unless otherwise stated in the Offer or Order Acknowledgment. Except as otherwise agreed to by BASE Engineering in writing, all amounts invoiced by BASE Engineering are due within thirty (30) days of the date of BASE Engineering’s applicable invoice. All payments due to BASE Engineering shall be made in full without any set-off or deduction to the amounts shown on the relevant invoice. In addition to all other remedies available under the Contract or at law (which BASE Engineering does not waive by the exercise of any rights under the Contract), BASE Engineering shall be entitled to withdraw credit or suspend or cancel the delivery of any Products or provision of any Services, under this Contract or any other agreement between the parties, if Purchaser fails to pay any amount when due hereunder and such failure continues for sixty (60) days or for five (5) calendar days following any written notice to Purchaser thereof. Such failure shall also terminate the Software license, subject to BASE Engineering’s unilateral right to reinstate it. Any late payments may (in BASE Engineering’s sole discretion) be subject to a finance charge of the lesser of 1% per month (12% per annum) or the maximum amount allowed by law, computed on all unpaid amounts and calculated on a day-to-day basis until the actual date of full payment. Additionally, Purchaser shall pay to BASE Engineering all costs and expenses incurred by BASE Engineering in seeking collection of any amounts owed by Purchaser to BASE Engineering, including but not limited to all collection costs, court costs, administrative costs, investigation costs, reasonable attorneys’ fees, and all other incidental costs, charges, or expenses incurred in the collection of past due amounts or otherwise resulting or arising from any breach by Purchaser of the Contract. If BASE Engineering receives partial payment in an amount less than the full amount of any invoice, such receipt shall neither constitute a waiver of BASE Engineering's right to collect the balance nor an accord and satisfaction, notwithstanding BASE Engineering’s endorsement of a check or other instrument. Purchaser shall have no right to withhold any amount due BASE Engineering under these Terms because of a claim Purchaser may have against BASE Engineering.

5. Delivery

(a) Unless otherwise specified in the Order, all Products shall be delivered FOB BASE Engineering’s plant of manufacture at Saint John (or another location designated by BASE Engineering), Incoterms 2020.  Any delivery of software Products or Services will be indicated via the Order Acknowledgment and will typically occur once the corresponding hardware Products have been received.

(b) All delivery dates are approximate. BASE Engineering shall use commercially reasonable efforts to meet the delivery schedule or date shown in the Order. BASE Engineering shall not be liable for any delay or failure in the estimated delivery or shipment or for any damages that may result to Purchaser from such delay or failure. BASE Engineering reserves the right to make delivery in installments and all such installments, when separately invoiced, shall be paid for when due per BASE Engineering’s invoice, without regard to subsequent deliveries. Delays in delivery of any installment shall not relieve Purchaser of its obligation to accept remaining deliveries. BASE Engineering will attempt to comply with reasonable requests by Purchaser for changes in delivery dates, but BASE Engineering shall be under no obligation to do so. 

(c) Each scheduled Delivery shall constitute a separate contract subject to the Order. Any failure or defect with respect to any one scheduled Delivery shall not invalidate the Contract as to the remaining scheduled Deliveries.

6. Title and Risk of Loss

Title to all Products shall transfer to Purchaser upon delivery of such Products to a shipper or freight carrier, as applicable, for transportation to Purchaser (the “Delivery”) and upon such Delivery, Purchaser shall bear all risk of loss. Subsequent to Delivery, BASE Engineering shall not be responsible or liable for the security, safeguarding, or insurance of the Products so transferred, or for any loss of or damage to the Products.

7. Inspection; Returns

(a) Following Delivery, Purchaser shall inspect the Products immediately upon receipt and report in writing to BASE Engineering, within seven (7) days of receipt, any shortages or other errors. Failure to report in writing within seven (7) days of receipt any such shortages or other errors shall constitute unqualified acceptance and a waiver of all such claims by Purchaser. BASE Engineering’s responsibility for damaged Products ceases upon Delivery and Claims for loss of or damage to the Products in transit shall be made to the carrier and not to BASE Engineering.

(b) Claims against BASE Engineering are subject to Purchaser’s compliance with BASE Engineering’s return merchandise authorization policy, which will be provided to Purchaser upon request. BASE Engineering may, at BASE Engineering’s option, require Purchaser to (i) provide photographs or other documentation of such claim, and (ii) make the Products (including packaging, wrappings, and/or carton) subject to the claim available for inspection by BASE Engineering or its authorized representative in order to substantiate the grounds for rejection of the Products. All rejected Products must be returned to BASE Engineering, at Purchaser’s expense, prior to replacement by BASE Engineering. All returns shall be at Purchaser’s risk and expense and must be sent to BASE Engineering under DDP (BASE Engineering’s designated location), Incoterms 2020

(c) BASE Engineering may, in its sole discretion, accept the return of Products. Any return of Products may be subject to a restocking fee of 20% on returned equipment. Returned Products must be unused, in their original packaging, and  in good working condition to be eligible for return, unless otherwise provided in writing by BASE Engineering. Prior to returning any Products, Purchaser shall issue a written request to BASE Engineering for a return merchandise authorization number (“RMA Number”) setting forth the reason for such request in reasonable detail. Any return of Products to BASE Engineering will be made ONLY upon BASE Engineering’s assignment of an RMA Number to Purchaser. Such RMA Number must be displayed prominently on the outside of the box that contains the returned Products. Any Products returned to BASE Engineering without an RMA Number will be refused and returned to Purchaser at Purchaser’s expense. BASE Engineering may reimburse Purchaser for any returned Products (less a restocking fee of 20% on returned equipment, where applicable) either as a refund to Purchaser’s original payment method or as BASE Engineering store credit, at BASE Engineering’s sole option.

8.  Services

Unless otherwise provided in a separate agreement between BASE Engineering and Purchaser, in the event that BASE Engineering provides Services, including, but not limited to, field services or other installation, testing, servicing, training, development, optimizing, integration or support in connection with the Products, the manner and means used to perform the Services are at the sole discretion and control of BASE Engineering. BASE Engineering reserves the right to subcontract the installation of Products or the performance of any Services required by the Contract. To enable BASE Engineering to provide the Services, Purchaser will: (a) make all necessary preparation to the site by such date as may be specified in the Order or is reasonably required by BASE Engineering, (b) obtain all permits, licenses, and authorizations required by state, local, or other authorities to enable BASE Engineering to provide the Services, (c) provide BASE Engineering with reasonable access to Purchaser’s facilities, equipment, and personnel, (d) promptly respond to any request for information, approvals, authorizations or decisions necessary to provide the Services, (e) promptly notify BASE Engineering of any dangerous, operational or special conditions that may affect the provision of the Services, and (f) perform any other obligations designated as Purchaser’s responsibility as set forth in the Order or as otherwise mutually agreed by the parties in writing. Any failure by Purchaser to timely perform any of its obligations hereunder or under the Order shall extend BASE Engineering’s time of performance to the extent of the delay.

8. Limitation on Liability

BASE ENGINEERING’S LIABILITY WITH RESPECT TO BREACHES OF WARRANTY AND INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS SHALL BE LIMITED TO THE REMEDIES PROVIDED IN THE “WARRANTY” AND “BASE ENGINEERING INDEMNITY OBLIGATION” SECTIONS HEREIN, RESPECTIVELY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL BASE ENGINEERING’S AGGREGATE LIABILITY UNDER THIS CONTRACT EXCEED THE PRICE ACTUALLY PAID BY PURCHASER TO BASE ENGINEERING UNDER THIS CONTRACT FOR THE PRODUCTS AND SERVICES GIVING RISE TO THE CLAIM. BASE ENGINEERING SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY AND NEGLIGENCE), OR OTHER THEORIES OF LAW WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY BASE ENGINEERING OR ANY UNDERTAKINGS, ACTS, OR OMISSIONS RELATING THERETO. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, BASE ENGINEERING SPECIFICALLY DISCLAIMS ALL LIABILITY RELATING TO ANY ALLEGED DEATH OR INJURY TO PERSONS OR LOSS OR DAMAGE TO PROPERTY, PENALTIES, SPECIAL, CONSEQUENTIAL, INCIDENTAL, CONTINGENT, OR PUNITIVE DAMAGES WHATSOEVER, DAMAGES FOR LOSS OF PROFITS OR REVENUES, LOSS OF USE, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES OR SERVICES, DOWN-TIME, SHUT-DOWN OR SLOW-DOWN COSTS AND ALL OTHER TYPES OF ECONOMIC LOSS, AND CLAIMS BY PURCHASER’S CUSTOMERS FOR ANY SUCH LOSSES OR DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS CONTRACT, BASE ENGINEERING SHALL NOT BE RESPONSIBLE FOR, AND SHALL INCUR NO LIABILITY WITH RESPECT TO, ANY INFORMATION (INCLUDING, WITHOUT LIMITATION, DESIGN AND ENGINEERING DRAWINGS) SUPPLIED BY PURCHASER OR ANY OF ITS SUBCONTRACTORS, REGARDLESS OF WHETHER SUCH INFORMATION IS REVIEWED BY BASE ENGINEERING.

9. Warranties; Disclaimer

(a) Products manufactured by BASE Engineering are warranted (i) to be free from defects in workmanship or material, when subjected to normal conditions of use, and (ii) to conform to the Specifications. The warranty period for the foregoing warranties is four (4) years from the date of shipment for complete systems, and one (1) year from the date of shipment for any parts (including any parts of system that include a circuit board or are not otherwise designed or assembled by BASE Engineering). Subject to the terms and conditions herein, if within the applicable warranty period such Products shall be proved to BASE Engineering’s satisfaction and in BASE Engineering’s sole discretion to be non-conforming, BASE Engineering will either repair or replace, at its sole option, any components of the Products that do not conform to the foregoing warranty. Except as stated in the preceding sentence, BASE Engineering shall have no other liability, including, without limitation, any liability for labor or the effects of corrosion, erosion, aging, and normal wear and tear. Consumable items are not included in the foregoing warranty. No repair or replacement under BASE Engineering’s warranty obligations will extend or enlarge the applicable original warranty limited express warranty period as set forth herein.

(b) BASE Engineering may, at its option, require Purchaser to accept a replacement component of the Products for a component that allegedly does not conform to the foregoing warranty within the applicable warranty period and require Purchaser to return the allegedly nonconforming component to BASE Engineering, at Purchaser’s expense, pending investigation of Purchaser’s warranty claim. Should BASE Engineering accept Purchaser’s warranty claim, BASE Engineering shall subsequently credit Purchaser’s account for the purchase price of the replacement component, including reasonable out-of-pocket costs associated with the return of the nonconforming component of the Products, and ship any replacement component to Purchaser at BASE Engineering’s expense (excluding VAT, taxes, duties, and other import fees)

(c) BASE Engineering endeavors to design and manufacture its Products to meet the requirements of the Occupational Safety and Health Act of 1970 and other applicable laws, standards and regulations, as BASE Engineering understands these laws, standards, and regulations to apply and interprets the same. However, interpretation of laws, standards, and regulations varies per jurisdiction, and BASE Engineering specifically disclaims liability to Purchaser for noncompliance with such laws, standards, and regulations. BASE Engineering does not represent, warrant, covenant, or guarantee that its Products will qualify, and BASE Engineering will not provide a certification for qualification, for USMCA or the EU-UK TCA or any other preference program.

(d) BASE Engineering warrants that it shall perform Services in a good and workmanlike manner, consistent with the standard of care exercised by BASE Engineering in performing services similar to the Services for its other customers. If Purchaser notifies BASE Engineering in writing of any non-conforming Services no later than sixty (60) days after they are rendered, BASE Engineering shall use commercially reasonable efforts to reperform such Services so that they conform to the warranty. However, BASE Engineering has no duty to incur costs for corrective reperformance that exceed the costs paid for the Services being reperformed. If BASE Engineering is unable to reperform the Services so that they conform to the warranty, BASE Engineering shall refund to Purchaser the fees paid for such non-conforming Services. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE CORRECTIVE REPERFORMANCE OF NON-CONFORMING SERVICES OR REFUND OF FEES PAID THEREFOR AS SET FORTH IN THIS PARAGRAPH SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF PURCHASER, AND THE EXCLUSIVE LIABILITY OF BASE ENGINEERING, FOR ANY NON-CONFORMING SERVICES, AND PURCHASER EXPRESSLY WAIVES ANY OTHER RECOVERY.

(e) All warranty claims must be made in writing and received by BASE Engineering during the applicable warranty period. Claims made by telephone must be confirmed in writing by Purchaser within ten (10) days. BASE Engineering’s liability on third party vendor equipment is, in all cases, limited to the warranty extended by the vendor to BASE Engineering on such equipment. BASE Engineering is not, and Purchaser shall be, responsible for the integration of the Products in Purchaser’s equipment, plant, and/or plant systems.

(f) Notwithstanding the foregoing, BASE Engineering shall have no warranty obligation hereunder if all payments due from Purchaser have not been made. This limited express warranty does not extend to any Product or part that has been damaged by accident, misuse, abuse, failure to maintain, or neglect, nor does it extend to any Product or part that has been modified, altered, disassembled, or repaired in the field. This limited express warranty does not apply if the Product or part becomes defective in whole or in part as the result of installation or repairs not made by BASE Engineering, or as the result of removal, improper use, storage or maintenance, or operation above rated capacities or misapplication thereof after it has been delivered to Purchaser. This limited express warranty does not cover any cosmetic issues, such as scratches, dents, marring, fading of colors, or discoloration.

(g) BASE Engineering’s warranty does not extend to systems designed, in whole or in part, by Purchaser or any third party, and BASE Engineering accepts no responsibility for the design of said system into which any Products are incorporated, including with respect to whether the system will function as intended by Purchaser.

(h) Products and parts made by other manufacturers are not warranted by BASE Engineering, and Purchaser hereby expressly agrees and acknowledges that Purchaser shall only have such warranty with respect to products and parts made by manufacturers other than BASE Engineering as provided by such other manufacturers provided to BASE Engineering.

(i) Warranty claims, or alleged non-performance by BASE Engineering, shall not affect Purchaser’s duty to pay BASE Engineering in accordance with this Contract. Any additional costs to BASE Engineering for completing performance reasonably related to Purchaser’s failure to fulfill its obligations contained in the Order shall be an additional charge payable to BASE Engineering by Purchaser upon demand.

(j) EXCEPT AS SET FORTH HEREIN, BASE ENGINEERING EXPRESSLY DISCLAIMS AND MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PURCHASER ACKNOWLEDGES THAT IT IS NOT RELYING UPON BASE ENGINEERING’S SKILL OR JUDGMENT TO SELECT OR FURNISH PRODUCTS OR SERVICES SUITABLE FOR ANY PARTICULAR PURPOSE OR UPON ANY AFFIRMATIONS OF FACT OR PROMISES OF BASE ENGINEERING WHICH EXTEND BEYOND SPECIFICATIONS PUBLISHED BY BASE ENGINEERING OR OTHERWISE MUTUALLY AGREED UPON IN WRITING BY BASE ENGINEERING AND PURCHASER. BEFORE USING OR PERMITTING THE USE OF THE PRODUCTS AND SERVICES, PURCHASER SHALL DETERMINE THE SUITABILITY OF THE PRODUCTS AND SERVICES FOR THE INTENDED USE AND UNDER PURCHASER’S OPERATING CONDITIONS, AND PURCHASER SHALL ASSUME ALL RISK AND LIABILITY WHATSOEVER IN CONNECTION THEREWITH. IN THAT REGARD, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, PURCHASER AGREES AND ACKNOWLEDGES THAT IT IS ACCEPTING ANY PRODUCTS AND SERVICES HEREUNDER ON AN “AS-IS” AND “WITH ALL FAULTS” BASIS. FURTHERMORE, PURCHASER HEREBY EXPRESSLY AGREES AND ACKNOWLEDGES THAT BASE ENGINEERING SHALL HAVE NO LIABILITY OF ANY NATURE HEREUNDER BEYOND REPLACEMENT OR REPAIR OF ANY DEFECTIVE PRODUCT, PART, OR INDIVIDUAL COMPONENT THEREOF, OR REPERFORMANCE OF THE SERVICES, AS APPLICABLE, EXCEPT AS EXPRESSLY SET FORTH HEREIN SUBJECT TO THE LIMITATIONS OF LIABILITY HEREIN. BASE ENGINEERING WILL HAVE NO LIABILITY OF ANY NATURE HEREUNDER FOR ANY DEFECTS, DELAYS, OR FAILURE TO DELIVER CAUSED BY ANY CUSTOMER-DESIGNATED SUPPLIER OF ANY COMPONENTS OR RAW MATERIALS.

10.  Security Agreement

Purchaser hereby grants to BASE Engineering and its successors and assigns a lien on and purchase money security interest in and to all of the right, title and interest of Purchaser in, to and under the Products sold and Services performed hereunder, wherever located and whether now existing or hereafter arising or acquired from time to time and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing, to secure payment of all obligations of Purchaser under the Contract, including, but not limited to, all costs and expenses set forth herein. Purchaser authorizes BASE Engineering to take all actions necessary to perfect and/or enforce such security interests, including, but not limited to, the filing of any financing statement in accordance with the Uniform Commercial Code or other applicable law. Default in payment of such price or any part of the price when due shall permit BASE Engineering, in its sole discretion, to declare all obligations of Purchaser immediately due and payable, and in such event, BASE Engineering shall have all the rights and remedies of a secured party under applicable law. In connection with the security interest granted herein, BASE Engineering is expressly authorized, at its discretion, to file one or more financing statements or other notices under applicable law naming Purchaser as debtor and BASE Engineering as secured party. Purchaser agrees to execute such documents requested by BASE Engineering to record and otherwise perfect this security interest.

11.  Proprietary Data; Patents & IP Rights

(a) All of the technical data and other business information disclosed in the Offer, this Contract, in other BASE Engineering communications, in connection of the sale of BASE Engineering Products and Services or derived therefrom is considered to be confidential, proprietary, and solely for the purpose of the Purchaser’s purchase of BASE Engineering Products and Services. All intellectual property rights in or relating to, the Products or Services, including, but not limited to, all technical data, processes, designs, drawings, engineering data, U.S. and foreign patents, patent applications, patent rights, trademarks and service marks (including common law rights, applications, and registrations therefor), works of authorship, copyrightable and uncopyrightable works (including those in computer programs, drawings, designs, documentation, and specifications), copyright registrations, trade secrets, proprietary rights in information (including in data, inventions, discoveries, know-how, formulas, processes, technical information, and business information), license rights under the intellectual property rights of third parties and all other intellectual property rights whether or not subject to statutory registration or protection (collectively, “Intellectual Property Rights”), are owned by or licensed to BASE Engineering. The sale of any Products or Services to Purchaser in no way conveys to Purchaser, either expressly or by implication, any ownership or license whatsoever to any Intellectual Property Rights, except as may be expressly granted by BASE Engineering herein or in the materials which accompany the Products or Services upon delivery. Purchaser shall not, and shall not permit any third party to, reverse engineer, decompile, disassemble, or otherwise attempt to ascertain any algorithms, software source code, or other trade secrets underlying any of the Products or Services. BASE Engineering expressly reserves its ownership rights in and to its Products and Services and all Intellectual Property Rights therein and asserts that additional restrictions may apply to the use of the Products or Services, as set forth in the applicable Products or Services documentation and other materials which accompany the Products or Services. Any unauthorized use of BASE Engineering’s Intellectual Property Rights is expressly prohibited.

(b) Unless otherwise specified in an agreement signed by BASE Engineering and Purchaser, all tooling, fixtures, equipment, tools, software, and designs produced, acquired, or used by BASE Engineering for the purposes of filling Purchaser’s Order remain the property of BASE Engineering.

12.  Software License

(a)  Provided that Purchaser has paid all amounts due hereunder, and subject to the terms and conditions herein, BASE Engineering grants Purchaser a limited, non-transferable, non-exclusive, non-sublicensable, revocable, royalty-free right to use software incorporated into the Products (the “Software”) solely for the purpose of operating the Products in accordance with the Specifications. The Software is licensed, not sold for Purchaser’s use. The aforementioned license confers no title, ownership, or incident of ownership to the Purchaser in the Software, or in any copy thereof, and may not be construed as a sale of any rights in the Software, or in any copy thereof, to the Purchaser. The license rights granted to Purchaser with respect to the Software in the Order are subject to the following additional restrictions:

(i) With respect to all Software products or applications owned by BASE Engineering: (A) Purchaser shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the Software available to any third party; (B) Purchaser shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Software or any hardware component in which the Software is installed; (C) Purchaser shall not access the Software in order to build a similar or competitive product or service or to publish any performance or benchmark test or analyses relating to the Software; and (D) except as expressly stated herein, no part of the Software may be copied, reproduced, distributed, republished, downloaded, displayed, translated, posted, or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or other means; and/or

(ii) With respect to all Software products or applications that are third-party products or services or are otherwise licensed to BASE Engineering by third parties (“Third-Party Products”), Purchaser acknowledges and agrees that BASE Engineering may, and reserves the right to, pass through and require compliance with any and all applicable third-party terms and conditions. These may include, without limitation,  third-party end-user license agreements, flow-down terms, or other contractual obligations related to the Third-Party Products. Such terms may be incorporated into, referenced in, or attached to the Offer or Order Acknowledgment or otherwise notified to Purchaser from time to time. 

Purchaser shall immediately cease all use of, and return to BASE Engineering all copies of, the Software in the event of Purchaser’s breach of any of the foregoing restrictions or any other term or provision set forth in this Contract, including, without limitation, Purchaser’s payment obligations. BASE Engineering reserves the right to audit Purchaser’s use of the Software, from time to time, upon written notice to Purchaser to confirm Purchaser’s compliance with the foregoing license restrictions. Purchaser shall cooperate with BASE Engineering’s audit and provide BASE Engineering with access to the Products, Purchaser’s systems on which the Software is installed or accessed, and Purchaser’s books and records.

Purchaser acknowledges and agrees that the use of certain Software included in or provided with specific Products may be subject to separate and/or additional terms and conditions as notified by Seller to Purchaser from time to time (“Additional Software Terms”). In addition to these Terms, Purchaser agrees to further comply with any and all such Additional Software Terms. In the event of any conflict between the Additional Software Terms and these Terms, the Additional Software Terms shall control solely with respect to use of the applicable Software.

13.  BASE Engineering Indemnity Obligation

(a) BASE Engineering may defend in accordance with the terms below any suits that may be instituted by a third party against Purchaser based on any claim that the Products manufactured by BASE Engineering hereunder or any part thereof infringes any U.S. utility patent, trademark, or copyright and, provided that Purchaser shall have made all payments then due hereunder, shall have given BASE Engineering immediate notice in writing of any such suit, transmitted to BASE Engineering upon receipt of all process and papers served upon Purchaser, permitted BASE Engineering through its counsel, either in the name of Purchaser or in the name of BASE Engineering, to defend the same, and given all needed information, assistance, and authority to enable BASE Engineering to do so, including tendering control of the litigation and provided, further, that BASE Engineering shall not have any obligation to indemnify Purchaser from any infringement claims arising from, in whole or in part: (i) modification of the Products or the Software other than by BASE Engineering or as instructed by BASE Engineering; (ii) the combination of the Products or the Software with any component not provided by BASE Engineering; (iii) Products designed or manufactured in accordance with designs, specifications, processes, or formulas provided or required by Purchaser; (iv) use of the Products or the Software in a manner not intended or authorized by Seller; or (v) use of the Products or the Software after a non-infringing substitute that would have avoided the alleged infringement was made available by Seller (each a “Purchaser Retained Infringement Obligation”).

(b) If BASE Engineering defends such a suit for infringement and such Products are held to infringe any valid U.S. utility patent, trademark, or copyright, then BASE Engineering will pay any final award of damages in such suit attributable to such infringement, subject to the limits set forth herein. In lieu of defending such a suit for infringement, or if in BASE Engineering’s opinion such a suit for infringement appears likely to be filed, Purchaser agrees to permit BASE Engineering, in BASE Engineering’s sole discretion, to: (1) procure for Purchaser the right to continued use of the Products; (2) modify the Products to render them non-infringing; (3) replace the Products with non-infringing goods (and if BASE Engineering does so, then upon BASE Engineering’s written request, Purchaser will return the allegedly infringing Products); or (4) refund the purchase price and the transportation costs paid by Purchaser for the Products, less an allowance for use and ordinary wear and tear equal to ten percent (10%) of the purchase price multiplied by the number of years that the Products have been utilized by Purchaser, pro-rated for any partial year of use. BASE Engineering’s total monetary obligation under this clause is limited to the purchase price paid by Purchaser for the infringing Product, less an allowance for use and ordinary wear and tear equal to ten percent (10%) of the purchase price multiplied by the number of years that the Products has been utilized by Purchaser, pro-rated for any partial year of use. Notwithstanding the foregoing, BASE Engineering shall not be responsible for: (i) any compromise or settlement made without its written consent; (ii) infringement based on a Purchaser Retained Infringement Obligation; or (iii) direct or indirect infringement of a design patent or other comparable intellectual property. The foregoing states the entire liability of BASE Engineering for infringement, and in no event shall BASE Engineering be liable for any alleged infringement of products manufactured by third parties and supplied hereunder.

14.  Purchaser Indemnity Obligation

Purchaser shall indemnify, defend and hold harmless BASE Engineering and its affiliates, and each of its and their respective owners, officers, directors, employees, contractors, representatives, advisors, agents, successors, and assigns from any and all claims, suits, actions, or proceedings (collectively, “Claims”) and all resulting losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising out of or related to: (a) claims that the design, manufacture, sale, or servicing of the Products constitutes actual or alleged infringement or misappropriation of any intellectual property right, other proprietary right, or contractual right of any third party as a result of any Purchaser Retained Infringement Obligation; (b) Purchaser’s use of the Products other than as authorized under the Contract; (c) Purchaser’s breach of any representation, warranty, or covenant under this Agreement; (d) Purchaser’s negligence, willful misconduct, or violation of law (including any death of or injury to any person or damage to any property arising from any of the foregoing); or (e) any environmental, property, or toxic tort claim, lawsuit, judgment, loss, liability, civil penalty, or action.

15.  Indemnification Procedures

Promptly after receipt of any written claim or notice of any action giving rise to a claim for indemnification: (a) the indemnified party shall notify the other party and provide copies of the claim and any documents relating to the same in its possession; (b) the indemnifying party shall have sole control of the defense of any such claim and all negotiations for settlement or compromise; provided, however, that the indemnified party shall have the right to approve defense counsel selected by the indemnifying party, such consent not to be unreasonably withheld or delayed; and (c) at the indemnifying party’s reasonable request and expense, the indemnified party shall provide it with reasonable assistance for the defense of the claim. The indemnified party shall be entitled to employ counsel at its own expense to monitor the handling of the claim and neither party shall settle a claim that imposes on or restricts the operations of the other party or requires the other party to pay monies or make admissions without the written consent of such other party, which consent shall not be unreasonably withheld or delayed.

16.  Confidentiality; Data Security and Data Protection.

(a) All non-public, confidential, or proprietary information of either party, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, trade secrets, business operations, customer lists, pricing, discounts, and rebates, disclosed by such party (the “disclosing party”) to the other party (the “receiving party”), whether disclosed orally or disclosed or accessed in written, electronic or other form or media and whether or not marked, designated or otherwise identified as “confidential” in connection with the Contract (“Confidential Information”) is confidential, solely for the use of performing this Contract and may not be distributed or disclosed (except to the receiving party’s employees, agents or contractors who have a need to know for purposes of this Contract and who are bound by obligations of confidentiality at least as restrictive as those set forth herein), unless authorized in advance by the disclosing party in writing. The receiving party shall safeguard the disclosing party’s Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care. Upon the disclosing party’s request, the receiving party shall promptly return or destroy all documents and other materials containing any of the disclosing party’s Confidential Information, including all copies thereof (except for any electronic copies that must be retained pursuant to standard data archiving procedures, and provided that any such retained copies shall remain subject to the obligations of this Section), and the receiving party shall certify in writing its compliance with the foregoing obligations. The disclosing party shall be entitled to injunctive relief for any violation by the receiving party of this Section, without the requirement of posting a bond or other security or proving actual damages. This Section does not apply to information that is: (i) in the public domain (other than due to an improper disclosure by the receiving party); (ii) known to the receiving party at the time of disclosure; or (iii) rightfully obtained by the receiving party on a non-confidential basis from a third party. The parties agree that the provisions set forth in the NDA (if executed by the parties) shall supplement and be in addition to the obligations of this Section. In the event of any conflict between this Contract and the NDA, the parties agree that the NDA shall control with respect to the obligations of confidentiality of information between the parties and this Contract shall control with respect to the sale of any Products or Services.

(b) The receiving party represents that it has developed and implemented and covenants that it will maintain commercially reasonable information security policies and procedures that include administrative, technical and physical safeguards designed to (i) ensure the confidentiality, security, integrity, and availability of the disclosing party’s Confidential Information provided hereunder; (ii) protect against anticipated threats or hazards to the confidentiality, security, integrity and availability of such information; (iii) protect against unauthorized access or use of such information and (iv) ensure the proper disposal of such information. The receiving party shall promptly notify the disclosing party of any breach of confidentiality by the receiving party or any of its agents, unauthorized disclosure of the disclosing party’s Confidential Information by the receiving party or any of its agents or a breach of the receiving party’s information security policies or procedures impacting the disclosing party’s Confidential Information. Notice shall be provided to the disclosing party no later than twenty-four (24) hours upon the receiving party’s discovery of such breach of confidentiality.

(c) Each party shall comply with applicable data protection and privacy legislation in all relevant countries and shall ensure that its employees, agents and contractors observe the provisions of that legislation.

17.  Software and System Lifecycle Support

For automation Products that include embedded software and system integration (“Automation Products”), BASE Engineering provides ongoing lifecycle support services. These services are distinct from the initial hardware purchase price and are subject to recurring charges, which apply only to Automation Products and not to standalone hardware purchases.

These recurring charges cover the following:

(a)      Operation and Maintenance:

a.        Field Feedback and Response: Continuous monitoring and response to field-reported issues to optimize system performance.

b.        Regular or as needed Updates: Ongoing software and firmware updates to enhance performance, security, and compatibility.

(b)      Support Services:

a.        Technical Support: BASE Engineering provides support either directly or indirectly through its network of third-party partners. In cases where a third-party software vendor is involved, such vendor typically provides first-line support and escalates to BASE Engineering as needed. In other scenarios, support may be initiated through the installation shop or directly by the end customer, depending on the technical capabilities of the involved parties.

b.        Customer Service: Assistance is available to enable proper use and integration of the Automation Products, tailored to the specific support structure in place for each deployment.

(c)      Feature Development and Enhancements:

a.        New Features: Continuous development of new features to improve system functionality and user experience.  Note, this does not include custom or specifically requested feature development, which are subject to a separate charge.

b.        Bug Fixes: Prompt resolution of identified issues to maintain system reliability and performance.

BASE Engineering is working to align its development and lifecycle practices with internationally recognized standards, including:

(d)      ANSI/ISA/IEC 62443-4-1:2018 – Secure product development lifecycle requirements for industrial automation and control systems.

(e)      NIST SP 800-218 – Secure Software Development Framework (SSDF), emphasizing secure coding, vulnerability management, and toolchain integration.

(f)        ISO/IEC 27001:2022 – Information Security Management Systems (ISMS), supporting enterprise-wide governance of data security and risk management.

While full compliance with every aspect of these standards may not be feasible within the constraints of BASE Engineering’s current ecosystem, BASE Engineering is committed to continuous improvement and the adoption of best practices that enhance the security, reliability, and integrity of the Automation Products.

18.  Compliance with Laws

Purchaser shall: (a) comply with all applicable laws, rules and regulations, including, without limitation, those regarding anti-corruption, anti-bribery, human rights, and environmental health and safety; (b) maintain in effect all licenses, permissions, authorizations, certificates, consents, approvals, and permits necessary to carry out Purchaser’s responsibilities and obligations under the Contract and these Terms; and (c) handle, store, use, and transfer the Products in compliance with the foregoing and any safety information provided by BASE Engineering. Purchaser shall complete any documents and provide such information as BASE Engineering may reasonably request to ascertain Purchaser’s compliance with the foregoing. The Products, including any documentation and technical data related thereto, may be subject to certain: (i) U.S. or other applicable export laws, rules and regulations, including, without limitation, the U.S. International Traffic in Arms Regulations, Export Administration Regulations, and Foreign Assets Control Regulations (“Export Laws”); and (ii) anti-money laundering laws, rules, and regulations, including, without limitation, the U.S. Patriot Act (“AML Laws”). Purchaser shall comply with all applicable Export Laws and AML Laws. Purchaser shall not export, re-export, or release any Products that are subject to Export Laws, directly or indirectly, to any jurisdiction to which or person to whom, such export, re-export, or release is prohibited by any applicable Export Laws. It is Purchaser’s responsibility to obtain any license or other approvals and Purchaser will complete any documents requested by BASE Engineering prior to exporting, re-exporting, or releasing any Products that are subject to Export Laws. BASE Engineering will have no obligation to make any shipment to Purchaser until it has received all such information and has obtained the applicable licenses, permits, approvals or documentation for shipment, if any. Purchaser shall indemnify, defend and hold BASE Engineering, including its equity holders, directors, officers, employees, affiliates, successors, and permitted assigns, harmless from and against any breach of this Section by Purchaser or any of its equity holders, directors, officers, employees, affiliates, successors, permitted assigns, customers, agents, distributors, resellers, or vendors.

19.  Jurisdiction; Venue; Statute of Limitations

(a) This Contract shall be governed by the laws of the State of Delaware, USA, without regard to principles pertaining to conflicts of law. THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS CONTRACT SHALL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.

(b) Purchaser agrees that the jurisdiction and venue for any litigation arising in connection with this Contract will be the state and federal courts located in New Castle County, Delaware, USA. Notwithstanding the foregoing, Purchaser agrees that BASE Engineering may waive the preceding sentence and, at its sole option, commence litigation against Purchaser in a court of appropriate jurisdiction in the county and/or country where Purchaser is incorporated or formed or where Purchaser’s principal place of business is located.

(c) In the event that litigation is instituted to interpret or enforce any terms or provisions of this Contract or the Contract, the prevailing party shall be entitled to reasonable attorneys’ fees to be awarded by the court in the same action or in a separate action brought for that purpose.

(d) Except as otherwise expressly provided herein, any action that Purchaser may have against BASE Engineering alleging BASE Engineering’s breach of any provision of the Contract must be commenced within one (1) year following Purchaser’s discovery of the alleged breach or such claim shall be forever barred.

20.  Severability; Amendment; Waiver

(a) Any provision of this Contract or the Contract that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions or affecting the validity or enforceability of such provision in any other jurisdiction, and the parties shall substitute therefor an enforceable provision that achieves the same business purpose as the provision that is prohibited or unenforceable.

(b) No modifications to this Contract will be enforceable except when in writing and signed by authorized representatives of both parties, unless otherwise expressly stated herein.

(c) No waiver by BASE Engineering of any breach of any provision of the Contract shall constitute a waiver of any other breach. BASE Engineering’s failure to object to provisions in any communication from Purchaser shall not be deemed an acceptance of such provisions or as a waiver of any provisions of the Contract.

21.  Force Majeure

BASE Engineering shall not be liable for any loss, delay or failure to perform resulting from any circumstance, direct or indirect, reasonably beyond its control including, without limitation, endemic, pandemic, fire, flood, accident, explosion, mechanical breakdown, insurrection, riots, national emergencies, war, armed conflict, acts of public enemies, acts of God, strike or other labor trouble, plant shutdown, telecommunications or power failures, acts or omissions of Purchaser, unavailability of or interference with the usual means of transporting the Products, or compliance with any law, regulation, order, recommendation, or request of any governmental authority having or claiming to have jurisdiction over BASE Engineering, its subcontractors, and/or its suppliers, or any supplier delays or supplier failures to deliver necessary materials or components. In addition, BASE Engineering shall be so excused in the event it is unable to acquire from its usual sources and on terms it deems to be reasonable, any labor material necessary for manufacturing the Product or performing the Services. In the event that there should be a shortage of any product, BASE Engineering may apportion its available product among itself, its affiliates and all its customers in such equitable manner as it deems fair and reasonable. Upon giving prompt written notice to Purchaser of any such causes of a delay or failure in its performance of any obligation under the Contract, the time of performance by BASE Engineering shall be extended, at BASE Engineering’s option, to the extent of any delay resulting from any force majeure event.

22.  Relationship of the Parties

Nothing contained in these terms and conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these terms and conditions shall be deemed to construe either of the parties as the agent or distributor of the other party.

23.  No Third-Party Beneficiaries

Except with respect to each party’s indemnification obligations herein, the Contract is for the sole benefit of the parties hereto and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.

24.  Assignment

Purchaser may not assign this Contract without BASE Engineering’s prior written consent. BASE Engineering may assign this Contract to an affiliate of BASE Engineering or to an acquirer of control of all or substantially all of BASE Engineering’s equity or assets.

Last Updated: October 20th, 2025