Esko and Corbus General Terms and Conditions

  1. Terms Acceptance. These General Terms and Conditions of Sale (“Terms”) apply to the sale, licensing, and/or delivery of Esko's Products to Customer by or through Corbus, except if and to the extent those are deviated from by a Purchase Agreement. A “Purchase Agreement” shall mean any quote, proposal or order confirmation issued by Corbus that references these terms, or any other agreement for the sale, licensing or delivery of Esko Products by Corbus to Customer. “Corbus” shall mean Corbus, LLC, an Ohio limited liability company, or any entity controlled by the same.  “Esko” shall mean either Esko-Graphics BV, Esko-Graphics Inc. or any entity controlled by the same. “Products” shall mean any hardware, software (licensed or hosted), and any other goods and Services provided to Customer by Corbus or Esko pursuant to a Purchase Agreement. “Services” shall mean training, installation, repair, maintenance, support and any other services provided to Customer by Corbus or Esko pursuant to a Purchase Agreement. Unless otherwise expressly agreed in a Purchase Agreement, no other terms and conditions apply, including any terms and conditions that appear on Customer’s order documents. Customer's acceptance of Delivery of Products will constitute its acceptance of these Terms.

 

  1. Incorporation of Esko Terms and Conditions. All software Products, including without limitation software incorporated in Esko’s hardware, and updates and upgrades to software, are licensed to Customer and subject to Esko’s End User License Agreement available at www.esko.com/termsandconditions (“EULA”). All hosted software services (Software As A Service) are available to Customer and subject to the applicable Esko’s Software as a Service Agreement available at www.esko.com/termsandconditions (“SaaS Agreement”). In case of any conflict, the EULA and SaaS Agreement will control over the terms herein, as the case may be. To the extent a Purchase Agreement includes the provisioning of maintenance and support services, the same shall be provided by Esko in accordance with and subject to Esko’s maintenance (Care Plan) terms and conditions attached hereto or otherwise available at www.esko.com/termsandconditions and any additional terms set forth in the Purchase Agreement.
  1. Pricing and Payment. Pricing for the Products and Services shall be subject to the following pricing terms and conditions:
    • Price:The price contained in any Purchase Agreement is valid solely for the scope of work specified in such Purchase Agreement and is subject to variation or modification in the future.
    • Taxes and Other Fees:Price is exclusive of any applicable taxes. All taxes, levies, or duties prevailing at the time of payment, if paid by Corbus, shall be reimbursed by the Customer. These shall be stated as separate line items in the invoice.
    • Travel:Any travel required to support the service will be covered with a separate purchase order. Corbus will provide an estimate of the travel expenses and seek prior approval for any travel.
    • Changes in Engagement Scope:The scope of the engagement is as specified in the Purchase Agreement. The Corbus Engagement Manager shall review any potential changes in scope with the Customer Point of Contact that could result in pricing or schedule adjustments, which adjustments shall require written approval by both parties.
    • Payment Terms:Payment term shall be stated in the applicable Purchase Agreement.
    • Invoicing:Invoice(s) shall be billed in U.S. Dollars.
  1. Product Licensing. All intellectual property rights in and to Products shall remain with Corbus and/or Esko and its licensors. In relation to Products that concern software, Esko hereby grants to Customer and Customer hereby accepts, for the Term of this Agreement, a non-exclusive, non-sublicensable license to use the Products pursuant to Esko’s licensing policies. Customer shall not decompile, reverse engineer, disassemble or otherwise determine or attempt to determine the source code of the software, or make any changes or modifications to the Products that concern software.
  2. Warranty. Corbus, through Esko warrants hardware Products in accordance with its standard warranty policy available at www.esko.com/termsandconditions. Corbus through Esko warrants software Products in accordance with the terms of its EULA, available at www.esko.com/termsandconditions. THESE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
  3. Limitation of Liability. IN NO EVENT WILL CORBUS, REGARDLESS OF LEGAL THEORY, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, SUCH AS BUT NOT LIMITED TO ANY LOSS OF PROFIT, LOSS OF ANTICIPATED SAVINGS, OR ANY OTHER ECONOMICAL ADVANTAGE, ARISING OUT OF OR IN CONNECTION WITH A PURCHASE AGREEMENT OR ANY PRODUCTS OR MATERIALS DELIVERED BY CORBUS OR ESKO. IN NO EVENT WILL CORBUS’ LIABILITY, REGARDLESS OF LEGAL THEORY, EXCEED, FOR ALL CLAIMS IN AGGREGATE, AN AMOUNT EQUAL TO THE TOTAL AMOUNT PAID BY CUSTOMER IN RELATION TO THE PRODUCTS OR MATERIALS GIVING RISE TO THE CLAIM;The previous shall apply to the maximum extent permitted by applicable law, and shall not operate to exclude or limit Corbus’ or its employees or agent’s liability for fraud or fraudulent misrepresentation, willful intent or gross negligence.
  1. Confidential Information. Customer acknowledges that, as part of the commercial transaction with Corbus, it may be exposed to certain information that is not generally known to the public which would be considered confidential or proprietary by Corbus (“Confidential Information”). Confidential Information includes, without limitation, any Purchase Agreement, Corbus pricing, and all competitively sensitive or secret business, marketing, and technical information disclosed by Corbus to Customer. Customer agrees that, in the event it is exposed to such Confidential Information, it: (i) will protect Confidential Information from unauthorized disclosure using commercially reasonable care, (ii) will not disclose Confidential Information to any third party, and (iii) will not use Confidential Information (other than as authorized by these Terms) without the prior written consent of Corbus. Within five (5) business days after a request by Corbus, or upon termination of the Purchase Agreement, all materials or media containing any Confidential Information will either be returned to Corbus or destroyed. Confidential Information does not include information which: (i) was already known to Customer prior to the time that it is disclosed by Corbus, as evidenced in writing and without a duty of confidentiality; (ii) is or has entered the public domain through no breach of these Terms or other wrongful act of Customer; (iii) has been rightfully received from a third party without breach of any duty of confidentiality; (iv) has been approved for release by written authorization of Corbus; or (v) is required to be disclosed pursuant to the order of a court or governmental agency, provided that Corbus has, if permitted by law, been given reasonable notice of the order and the opportunity to contest disclosure. The obligations set forth herein shall apply for a period of five (5) years from the date of disclosure of the Confidential Information concerned. Any specific non-disclosure agreement entered into between the parties pertaining to the subject matter of the Purchase Agreement shall control over this Section 11.
  1. Miscellaneous.
    • The parties acknowledge and agree that Corbus’ ability to provide the Products is subject to Customer meeting all of its obligations in the Purchase Agreements, providing timely and sufficient access to the installation site, providing an installation site that conforms to the site requirements set forth in the Purchase Agreement or otherwise communicated by Corbus to Customer, and providing the necessary resources typically expected of a Customer, including without limitation, adequate facilities, light, heat, ventilation, electrical currents/outlets, water, internet connectivity, and any other assistance agreed upon as part of a Purchase Order or reasonably requested by Corbus.
    • In case of any conflict between these Terms and the terms set forth in any Purchase Agreement, the latter will control. Any modifications to a Purchase Agreement must be in writing and signed by both parties.
    • Customer may not assign or otherwise transfer any of its rights, interests or obligations under a Purchase Agreement without Corbus’ prior written consent. Any assignment contrary to this subsection will be null and void. Corbus may assign any of its rights and obligations under any Purchase Agreement with Customer to any existing or future affiliate and/or to any third party involved in a merger or acquisition or the sale of assets, provided that (i) the corresponding affiliate or third party agrees to be bound by the provisions herein, and (ii) provided further that within a reasonable time following such assignment, Customer is provided with notice of the same; Corbus may subcontract the performance of any of its obligations under a Purchase Agreement to any existing or future affiliate and/or to any third party subcontractor, provided that Corbus remains responsible for the performance by the subcontractor of such obligations in accordance with the terms of the Purchase Agreement.
    • The failure of either party to strictly enforce any of the terms or conditions in any Purchase Agreement will not be considered a waiver of any right therein. If any term is declared invalid or unenforceable to any extent, the remainder of the terms or conditions will not be affected thereby, and the ineffective, invalid, or unenforceable provision shall be deemed replaced by a provision that is valid and enforceable and that comes closest to expressing the commercial intention of the provision in question.
    • The termination or expiration of any Purchase Agreement will not affect the survival and continuing validity of any provision which expressly or by implication is intended to continue in force after such termination or expiration.
    • Neither party will be responsible for, nor be in default under a Purchase Agreement due to any delays or failure of performance (except payment obligations) resulting from acts or causes beyond its reasonable control, including without limitation acts of God, acts of war, third-party labor strikes, power failures, floods, earthquakes, other natural disasters, pandemics or other similar events ("Force Majeure Event"). In the event that either party is unable to perform any of its obligations under a Purchase Agreement because of a Force Majeure Event, the party who has been so affected will promptly give notice to the other and will exercise all reasonable efforts to resume performance.
    • All disputes arising from or related to a Purchase Agreement will be governed exclusively by and construed in accordance with the laws of the State of Ohio without reference to its conflicts of law principles. Each party hereby consents to the exclusive personal jurisdiction and venue of the courts of Montgomery County, Ohio to hear and decide upon any dispute arising out of a Purchase Agreement or in relation to Products delivered by Corbus. Notwithstanding the previous, Corbus may choose to bring an action before the courts of the location where Customer is located if the action concerns the collection of a pecuniary debt or protection or enforcement of Corbus’ intellectual property rights.
    • All Purchase Agreements between the parties (including these Terms) are entered into by the parties knowingly and in full knowledge of the facts. The parties explicitly agree that the terms agreed as part of the Purchase Agreements entered into, reflect a balanced legal relationship between them within the scope of the general economic purpose, the common commercial practice and the specific Products to which these contracts relate.

Last Modified: November 9, 2021