Standard Terms and Conditions


BlueSens Corporation


The sale by BlueSens [] (“Seller”) of the goods set forth on the face hereof (the “Product”) and the provision of services related thereto (the “Services”) are subject to the terms set forth below (the “Contract”). These terms and conditions shall not be superseded by any other terms or conditions in the purchase order or other documents of the purchaser of the Product or Services set forth on the face hereof (“Buyer”). This Contract merges and supersedes all prior negotiations or agreements of the parties, either written or oral, made either prior to or contemporaneous with this Contract. This Contract cannot be modified or amended except by a subsequent written instrument executed by the parties which expressly supersedes the provisions of this Contract. This Contract, together with its attachments, constitutes the complete, exclusive and final agreement between Buyer and Seller. Any additional or different terms provided by Buyer in subsequent purchase orders or other documents shall not be binding. The rights and obligations under Sections 7 through 23 will survive the cancellation, termination or expiration of this Contract.


The offering of Products and/or Services via the Internet on Seller’s websites is made on a non-binding basis and does not constitute a binding offer to enter into an agreement with the Buyer. The descriptions of Products and/or Services made on Seller’s website are non-binding and do not form any kind of warranty.


Buyer shall give Seller reasonable prior notice of the desired timing of deliveries. The quantity of any delivery is subject to Seller’s reasonable production capabilities. Seller shall only be obliged to meet agreed deadlines for deliveries if all specifications in connection with such deliveries are received from Buyer in a timely manner and if Buyer complies with all other agreed terms and conditions (including the respective payment obligations). In the event that Buyer fails to do so the delivery period shall be appropriately extended.


Seller may, by giving thirty (30) days’ prior written notice thereof to Buyer at any time during the Contract period, change the price of the Product and terms of delivery and shipment. Such changes shall be applicable to any Product shipped hereunder on and after the date the changes become effective, notwithstanding the fact that Buyer may have requested delivery of such Product pursuant to Section 3 above prior to Seller’s notice to Buyer of such changes. This provision shall not apply to fixed price contracts.


The price for the Product and/or Services is due upon delivery of the Product or provision of the Services respectively. If the payment by Buyer is not reveived within seven days after such due date, Buyer shall be deemed to be in default without requirement of any further notice by Seller. Any right of retention of Buyer shall be excluded.


Unless otherwise expressly agreed in writing, all costs and risks of delivery are born by Buyer. Seller shall have the right to select the means of transportation. Buyer bears the risk of loss or deterioration of the Product during the shipment. Any expenses of the carrier selected by Seller shall be borne by Buyer and will be invoiced separately by Seller. If freight or other transportation costs are increased, Seller may add any such increase to the Contract price without prior notice thereof to Buyer. Buyer shall bear the risk of deterioration or loss of the Product during shipment. Buyer shall be responsible for asserting claims for losses or damages in transit directly against the carrier.


All claims must be received by Seller in writing within thirty (30) days after Buyer’s receipt of the Product or the provision of Services. With respect to any defects incapable of discovery by Buyer (with the exercise of reasonable diligence) until in use or in processing in the manufacture of other products, all claims must be received by Seller in writing within fifteen (15) days after Buyer learns (or, with the exercise of reasonable diligence, could have learned) of the alleged defect. All claims must be received by Seller at the address specified on the front of this Contract. All claims not made in writing as specified above and received by Seller within the time periods specified above shall be deemed waived. Upon receipt of Buyer’s notification, Seller shall have the option of making inspection, analyses and tests of the Product at Buyer’s premises or of requiring Buyer to send the Product or adequate samples thereof, at Buyer’s expense, to Seller or to a person designated by Seller for inspection, analyses and tests. No Product or sample shall be returned to Seller without prior written authorization from Seller. No inspection or any other actions by third parties are authorized or will be paid for by Seller, without Seller’s prior consent in writing.


Seller warrants to Buyer that (a) the Product is of the quality set forth in the specification provided to Buyer, if any, or, as may be otherwise stated in writing in this Contract, and (b) the title conveyed is good and the Product is free from any security interest, lien or encumbrance (other than in favor of Seller for the unpaid balance of all amounts due Seller from Buyer with respect to the Product). Such warranties extend only to Buyer. EXCEPT AS EXPRESSLY SET FORTH IN THE FOREGOING SENTENCE, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY THAT THE PRODUCT SOLD HEREUDER IS NON-INFRINGING, IS OF MERCHANTABLE QUALITY, OR THAT THE PRODUCT SHALL BE FIT FOR ANY PARTICULAR PURPOSE. THERE ARE NO OTHER WARRANTIES EXPRESSED OR IMPLIED BY OPERATION OF LAW OR OTHERWISE.
IF THE PRODUCT DOES NOT CONFORM TO THE WARRANTIES SET FORTH IN THIS SECTION, OR IF BUYER MAKES ANY OTHER CLAIM OF ANY SORT WHATSOEVER, INCLUDING THE CLAIMS SET FORTH ABOVE, AGAINST SELLER, BUYER’S EXCLUSIVE REMEDY SHALL BE LIMITED TO REPLACEMENT OF THE PRODUCT, OR, AT SELLER’S OPTION, REPAYMENT OF THE PURCHASE PRICE PAID BY BUYER. Any Product supplied by Seller hereunder to replace Product shall be deemed supplied to Buyer subject to all of the terms and conditions of this Contract, including, without limitation, those concerning warranties, limitation of liability, remedies and damages, to the same extent as the Product. In the event Seller agrees to replace any Product or agrees to repay to Buyer the purchase price of any Product supplied by Seller to Buyer under this Contract pursuant to this portion of this Contract, Buyer agrees that it shall take reasonable steps, at Seller’s written request, to return to Seller (at Seller’s expense) the product for which replacement or repayment is sought.


Any action for Seller’s breach of this Contract (including breach of warranties) must be commenced by Buyer within one year after the cause of action accrues, and no such action may be maintained which is not commenced within such period.


Buyer assumes all risks and liability, and Seller assumes no risk and no liability, with respect to unloading and discharge of the Product (including failure of discharge or unloading implements or material used by Buyer, whether or not supplied by Seller), storage, handling, sales and use of the product, and the compliance or noncompliance with all federal and local laws and regulations with respect thereto.


Buyer assumes all risk of patent infringement by reason of any use Buyer makes of the Product in combination with other material or in the operation of any process.


Buyer shall defend (including attorneys fees), indemnify and hold Seller harmless from and against all damages, causes of action, claims, liabilities, penalties, personal injuries (including death), environmental damages and tangible property damage caused by Buyer’s negligence, strict liability, breach of warranty, breach of this Contract, fault, omissions and willful or wanton conduct arising, without limitation, from the handling, transportation, blending, modification, processing, storage and use of the Products or Services provided hereunder. Buyer shall defend (including attorneys fees), indemnify and hold Seller harmless from and against all damages, causes of action, claims, liabilities, penalties, personal injuries (including death), environmental damages and tangible property damage of any of Buyer’s customers in connection with any advertising statement by Seller relating to Products or Services provided hereunder.


Seller may recover for each shipment hereunder as a separate transaction, without reference to any other shipment. If Buyer fails to pay any invoice in accordance with the terms of this Contract or is past due in payment of any other amount owing to Seller, Seller may, at its option (and without liability and without prejudice to any other remedies) defer further shipments or provision of Services until all payments owing to Seller by Buyer have been made (in which event Seller may elect to extend the Contract period for a time equal to that for which shipments were so deferred), stop any Product in transit, and/or decline further performance of this Contract. If at any time in the judgment of Seller, the financial responsibility of Buyer is impaired, Seller may change the terms of payment and may require advance payment as a condition of shipment.

14. TAXES.

All payments under this Contract are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Buyer regardless of which party such taxes are imposed upon (with the exception of any taxes computed with regard to Seller’s income). In the event Buyer is required by law to withhold taxes, Buyer agrees to furnish Seller all required receipts and documentation substantiating such payment. If Seller is required by law to remit any tax or governmental charge on behalf of or for the account of Buyer, Buyer agrees to reimburse Seller within thirty (30) days after Seller notifies Buyer in writing of such remittance. Buyer agrees to provide Seller with valid tax exemption certificates in advance of any remittance otherwise required to be made by Seller on behalf of or for the account of Buyer, where such certificates are applicable.

15. TITLE.

The Product delivered hereunder remains Seller‘s property until fulfilment of all claims against Buyer to which Seller is entitled as a result of the business relationship. During the period of retention of title, Buyer shall not be allowed to assign the Products or use them as security, but may only sell them to its customers in the course of its ordinary business and under the condition that Buyer receives payment from its customer or makes transfer of title to the customer conditional upon fulfilment of the customer‘s payment obligations in full. If the Buyer sells the Product, title to all future claims against its customers in connection with such sale, together with all ancillary rights – including any receivables – are hereby assigned to Seller as security without the need for any separate declaration to this effect. The assignment applies including any payment balance demands. However, the assignment only applies up to the amount corresponding to the price of the Product invoiced by Seller. Priority shall be given to satisfying the part of the payment demand assigned to Seller. Until revoked, Buyer shall be authorized to collect the assigned receivables relating to the resale of the Product. Seller may revoke this authorization with good cause, in particular default of payment, suspension of payment, the initiation of insolvency proceedings, the protest of bills of exchange or substantiated indications of over-indebtedness or imminent insolvency of Buyer. Furthermore, after giving previous warning and on heeding a corresponding period of grace, Seller may disclose the assignment, utilize the assigned claims and demand that Buyer discloses the assignment to its customers. If a probable cause of interest is shown Buyer must provide Seller with the information and documents required for the assertion of Seller’s rights against Buyer’s customers.


Neither party shall be liable for its failure to perform hereunder if due to any event beyond the reasonable control of the party affected, including but not limited to acts of God, war, fire, bad weather, flood, accident, labor trouble or shortage, terrorism, civil disturbance, plant shutdown, equipment failure, voluntary or involuntary compliance with any applicable governmental regulation or order, or shortage or inability to obtain (on terms deemed reasonable by the party affected) any raw material (including energy), equipment or transportation, which materially impairs such party’s ability to so perform. Any quantities not delivered or accepted because of any such event shall be eliminated from the Contract without liability. Seller shall not be obligated to deliver the Product from other than the production or shipping points designated herein and shall not be obligated to rebuild or repair any damage or destruction to such production or shipping points in order to fulfill this Contract. Seller shall also not be obligated to obtain any raw materials or Product from sources other than its usual sources. During any period when Seller is unable to supply the Contract quantity of the Product, whether caused by the circumstances above or otherwise, Seller may allocate any available Product, among its customers, including its own subsidiaries, divisions and departments, on such basis as Seller deems fair and reasonable, and its failure, partial or otherwise, to make deliveries to Buyer shall not be a breach of this Contract.


Should Seller for any reason elect to suspend manufacture of any Product which is the subject of this Contract, or curtail production or sale of the Product in consequence of the application of any governmental regulation or order which will, in the reasonable judgment of Seller, render the production, marketing or transportation of the Product economically, technically or commercially impracticable, Seller may terminate this Contract upon thirty (30) days prior written notice to Buyer.


This Contract and the rights and obligations of Buyer hereunder shall not be assignable by Buyer, either by act of Buyer or by operation of law without the prior written consent of Seller, and shall not be deemed an asset of Buyer in, and at the option of Seller shall terminate in the event of, the commencement of any case or proceeding in respect of Buyer under any bankruptcy, insolvency or similar law or any assignment for the benefit of creditors. At the option of Seller, this Contract shall terminate in the event of the insolvency of Buyer. Any purported assignment of this Contract without the prior consent of Seller shall be null and void.


This Contract is made under and shall be governed by, construed in conformance with, and all disputes shall be governed by the internal laws (exclusive of the conflicts of law principles) of the State of Illinois. The United Nations Convention on Contracts for the International Sale of Goods (CIGS) shall not apply. All disputes, claims demands, liabilities and causes of action related to this Contract shall be exclusively resolved by arbitration which shall be commenced by filing a Notice of Arbitration under the then current Commercial Rules of the CPR International Institute for Conflict Prevention and Resolution Rules for Non-Administered Arbitrations (“CPR Rules”). The entire dispute and all related disputes that the parties may have or possess shall be arbitrated in accordance with the CPR rules in effect, by a sole arbitrator. The arbitrator shall determine the rights and obligations of the parties according to applicable substantive laws and the express terms of this Contract. The arbitrator shall not be empowered to grant any damages in excess of those permitted or limited under the express terms of this Contract. The selection of the arbitrator shall be made by agreement of the parties. In the event the parties cannot agree upon the selection of an independent arbitrator, the arbitrator shall be appointed pursuant to CPR Rules. The party prevailing on substantially all of its claims in arbitration shall be entitled to recovers its costs, including reasonable attorney fees, on a full indemnity basis, for the arbitration proceeding, as well as any ancillary proceedings, to request interim measures, or to confirm or set aside an award. The arbitration shall be governed by the rules of CPR, and judgment upon the award rendered by the arbitrator may be entered by any court having competent jurisdiction. The place of the arbitrations shall be Chicago, Illinois. The parties may however, seek solely injunctive or equitable relief in a court of competent jurisdiction.


If any provision of this Contract shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Contract. The entire Contract shall be construed as if not containing the particular invalid or unenforceable provision and the rights and obligations of each party shall be construed and enforced accordingly.


If Buyer fails to perform any of the terms of this Contract, Seller may at its option defer shipments until the default is remedied and/or treat such default as a breach of the entire Contract.


Seller’s waiver of any breach or failure to enforce any of the terms or conditions of this Contract at any time shall not in any way affect, limit or waive its right thereafter to enforce strict compliance with every term and condition hereof.


None of Buyer or any of its officers, directors or employees is on any list of prohibited countries, individuals, organizations or entities that is administered or maintained by the U.S. Office of Foreign Assets Control (“OFAC”), including but not limited to the List of Specially Designated Nationals and Blocked Persons, or on any similar list not maintained by the OFAC. Buyer has and will maintain a process to ensure compliance with this Section 23

BlueSens Corporation, 1001 Mittel Drive, IL 60191 Wood Dale

§ 2 Data privacy protection

The person-related data revealed by the Customer in the scope of concluding a contract is solely utilised by BlueSens gas sensor GmbH for the conclusion of the contracts between BlueSens gas sensor GmbH and the Customer in connection with the supply of goods and/or the provision of services and in compliance with the provisions of the German data privacy laws.

§ 3 Presentation of goods and contract conclusion

(1) The presentation of goods and/or services via the Internet on websites of BlueSens gas sensor GmbH is not equal to a binding offer of said BlueSens gas sensor GmbH.

(2) Contracts between the Customer and BlueSens gas sensor GmbH are concluded upon contract confirmation drawn up by BlueSens gas sensor GmbH. Modifications and supplements made to the contract drawn up between BlueSens gas sensor and the Customer shall be drawn up in writing. The same applies to amendments in connection with the written form requirement.

§ 4 Terms of delivery

(1) Provided not expressly otherwise agreed upon with the Customer, all deliveries are effected costs and risks borne by the Customer, the risk is transferred to the Customer upon surrendering the goods to the forwarder commissioned by BlueSens gas sensor GmbH. Forwarding and handling expenses are drawn up separately by BlueSens gas sensor GmbH on the invoice for their deliveries.

(2) The prerequisite for deadlines to be kept in connection with deliveries is that all the specifications in connection with the deliveries are received in time from the Customer and not least that the agreed upon terms of payment and other obligations are observed by the Customer. Should these prerequisites not be complied with, the delivery period is extended appropriately, irrespective of further demands of BlueSens gas sensor GmbH.

(3) Rights are reserved to correct own deliveries made on time.

§ 5 Release from liability in connection with sales messages

The Customer releases BlueSens gas sensor GmbH from all and any liabilities which a consumer of the Customer asserts based on sales messages of BlueSens gas sensor GmbH, of the manufacturer in the terms of § 4 I or II of the Product Liability Act, or of a vicarious agent and which would not exist, or to this extent, without the sales message. This regulation applies irrespective of whether the advertising message is made prior to or after concluding this contract.

§ 6 Terms of payment

The settlement of the total sum is due upon delivery, upon acceptance and/or upon provision of the services. The Customer is in default 7 days after due date without the latter requiring any further notice from BlueSens gas sensor GmbH should due date not have been complied with. Should defects have been detected, the Customer is not entitled to retention, unless the delivery is obviously defective, or the Customer is evidently entitled to refuse acceptance of the work respectively. In such a case the Customer is only entitled to retention to such an extent as the sum withheld is in a pertinent relation to the defects and the expected expenses for subsequent fulfilment (particularly elimination of defects). The Customer is not entitled to assert claims and rights for defects if said Customer has not settled due accounts and in as far as the sum due (including possible settlements) is in a pertinent relation to the value of the delivery, or the services respectively, subject to the defects.

§ 7 Retention of title

(1) BlueSens gas sensor GmbH retains its title to the delivery item until all the latter's claims in connection with the business relation have been fulfilled and complied with by the Customer.

(2) Should the delivery item be sold, the Customer hereby assigns the claim arising from the further sale to the consumer with all the ancillary rights by way of security to BlueSens gas sensor GmbH. This action requires no special declaration. The assignment applies including possible payment balance claims. However, the assignment only applies to the amount of the price invoiced for the delivery item by BlueSens gas sensor GmbH. The share assigned to BlueSens gas sensor GmbH is subject to preferential settlement.

(3) Up until cancellation, the Customer is entitled to collect the receivables assigned to BlueSens gas sensor GmbH. The Customer shall transfer the payments made in connection with the assigned receivables - up to the amount of the receivables under security to BlueSens gas sensor GmbH without delay. In the case of eligible interests, particularly in case of default, suspension of payment, institution of insolvency proceedings, notes of protest or a founded suspicion for excessive indebtedness or pending insolvency of the Customer, BlueSens gas sensor GmbH is entitled to cancel the collection entitlement of the Customer. Furthermore, BlueSens gas sensor GmbH may, while complying with an appropriate period of grace, reveal the assignment of securities, exploit the assigned receivables and demand the disclosure to the consumers of the assignments of security by the Customer.

(4) Upon substantiation of a vested interest, the Customers shall submit the required information on the rights to consumer rights and submit the necessary documents to BlueSens gas sensor GmbH.

(5) While the retention of title is in force, the Customer is prohibited from pledging it as security or from assigning the security. In the case of seizure, confiscation, or other acts of disposal or the claims of third parties, the Customer shall inform BlueSens gas sensor GmbH immediately, without any further delay whatsoever. The resale of the item of delivery is only permitted in the orderly course of business and on the condition that payment of the current value of the item of delivery is effected to the Customer. The Customer shall also agree with the purchaser that the latter only acquires the title upon settlement of payment.

(6) Upon violation of obligations by the Customer, particularly in the case of default of payment, BlueSens gas sensor GmbH is entitled, even without setting a deadline, to demand surrender of the item of delivery, or new goods respectively and/ or - if necessary upon setting a deadline – to withdraw from the contract; the Customer is obliged to surrender the item of delivery concerned. The demand to surrender the item of delivery does not stand for a notice of withdrawal by BlueSens gas sensor GmbH, unless this is expressly declared.

§ 8 Warranty claims

(1) BlueSens gas sensor GmbH gives no guarantee in connection with properties of the items delivered to Customers. It may be particularly mentioned that the descriptions on the website of BlueSens gas sensor GmbH may not be considered to be of the character of a guarantee

(2) There are no warranty obligations for only slight deviances from the agreed upon properties or for inconsiderable impairment of usability/serviceability.

(3) In the scope of a supplementary performance BlueSens gas sensor GmbH is by no means committed to effect replacements, re-productions. The demand of the Customer for supplementary performance shall be drawn up in writing. BlueSens gas sensor GmbH shall be granted a period of 4 weeks for supplementary performance. A failure of supplementary performance is only given after the second attempt at remedy has failed. If supplementary performance fails, the Customer is entitled to reduce the price or at own option – if a construction item is not subject of the liability for defects –to withdraw from the contract. The legal cases of in which setting a deadline may be dispensed with remain unaffected. The expenses involved for the supplementary performances are borne by the Customer should they increase due to the deliveries and or/services having to be shipped to another location than the place of business of the Customer. Irrespective of further claims of BlueSens gas sensor GmbH the Customer shall compensate the expenses of an unjustified notice of defect claim for the inspection and – if required and demanded – the expenses involved in eliminating the defect. The expenses of §§ 478, 479 German Civil Code (right of recourse of the businessman) remain unaffected.

(4) Claims for damages may only be demanded if the prerequisites drawn up in §9 are given.

§ 9 Limitation of liability

(1) BlueSens gas sensor GmbH is liable in case of intent or gross negligence (particularly also of a representative or vicarious agent) and in case of injury to life, body or health according to the legal provisions. Otherwise BlueSens gas sensor GmbH is only liable pursuant to the Product Liability Act or for reason of culpable violation of essential contractual obligations or in as far as BlueSens gas sensor GmbH maliciously concealed the defect or a guarantee for the property of the item of delivery. The claim for damages for the violation of essential contractual obligations is, however, limited to the typical contract, predictable damage if another exceptional case as drawn up in this section has not arisen.

(2) The rules and regulations of the preceding Section 1 apply to all claims for damages (particularly for claims in addition to the performance and claims for damages instead of performance), and indeed for no matter what legal reason, particularly for defects, violation of obligations from the contractual obligation or for reason of impermissible action. They also apply to the claim for compensation of futile expenditures.

(3) An amendment of the onus of proof to the detriment of the Customer is not connected to the preceding rules and regulations. nus of proof to the detriment of the Customer is not connected to the preceding rules and regulations.

§ 10 Period of limitation

(1) The period of limitation for claims and rights arising from defects – for no matter what legal reason – is one year. This, however does not apply to the cases of § 438 Section 1 No. 1 German Civil Code (Defects of title in connection with immovables), § 438 Section 1 No. 2 German Civil Code (Buildings, Items for Buildings), § 479 Section 1 German Civil Code (Claim under right of recourse of the businessman) or § 634 a Section 1 No. 2 German Civil Code (Buildings or plants the success of which is in the provision of planning or surveillance services in such connection). The exceptional cases drawn up in preceding S. 2 cases are subject to a period of limitation of three years.

(2) The limitation periods according to Section 1 also apply to all claims for damages against BlueSens gas sensor GmbH which are in connection with the defect – irrespective of the legal basis of the claim. In as far as there are claims for damages of any kind against BlueSens gas sensor GmbH which are not in connection with a defect, the period of limitation drawn up under section 1, p. 1. applies.

(3) The periods of limitation according to Section 1 and Section 2, however, apply under the following premises
a) The periods of limitation generally do not apply in the case of a deliberate act of malice or fraudulent concealment of a defect or should and in as far as BlueSens gas sensor GmbH have offered a guarantee for the consistency of the delivery item.
b) Furthermore, the limitation periods do not apply to claims for damages resulting from a grossly negligent breach of obligations, in the cases of injury to life, body or health or to claims according to the Product Liability Act. The limitation periods for claims for damages also apply to all the replacement expenses for endeavours in vain.

(4) The limitation period for all claims begins upon delivery, in the case of plant services upon acceptance.

(5) Provided not expressly determined otherwise the legal directives on the beginning of the limitation period, the suspension of limitation and the recommencement of limitation periods remain unaffected.

(6) A reversal of onus of proof to the disadvantage of the Customer is not connected to the preceding rules and regulations.

§ 11 Final provisions

(1) The law of the Federal Republic of Germany applies to all the contracts concluded between BlueSens gas sensor GmbH and the Customer, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

(2) If the Customer does not have a general address for service in Germany, the venue for all the disputes between the Customer and BlueSens gas sensor GmbH shall be determined by the registered office of BlueSens gas sensor GmbH.

(3) Variations in connection with these Terms of Business shall be drawn up in writing. The same applies to amendments in connection with the written form requirement.

(4) Should individual or several provisions of these Terms of Business be, or become, inoperative the overall validity of the remaining Terms of Business is not affected