Control System sw DETAILED TERMS AND CONDITIONS OF SALE
Effective 4/17/2017 SUPERSEDES ALL PRIOR TERMS AND CONDITIONS
The provisions of the quotation or acknowledgment form, or invoice, to which these Detailed Terms and Conditions of Sale are attached, including all of the terms and conditions in these Detailed Terms and Conditions of Sale, shall, unless otherwise specifically agreed to by Seller in writing, be the SOLE TERMS AND CONDITIONS GOVERNING ANY PURCHASE AND SALE contract evidenced by any such quotation, acknowledgment or invoice, or any order, and shall supersede any and all prior terms and conditions. There are no other representations or warranties, oral or written, expressed or implied, statutory or otherwise, which apply to the purchase and sale evidenced or contemplated hereby. No modification of or adding to or waiver of any such provisions, terms, or conditions will be effective unless agreed to in writing by Seller, and any written terms or conditions supplied by Buyer in respect to such purchase and sale which are not conforming with, or are contrary to, these Detailed Terms and Conditions of Sale are hereby rejected and considered void and of no force or effect.
1. PRICES: Prices are not guaranteed to Seller by the manufacturer and are subject to escalation. Therefore, Seller's prices are subject to adjustment to reflect costs in effect at the time of shipment. Current discounts are as set forth in the Control System sw Pricing Schedule. Payment shall not prejudice claims on account of omissions or shortages in shipment, but no such claim will be allowed unless made within 30 days after receipt of shipment by Buyer. Prices include ordinary pre-delivery packing only, and prices and specifications are subject to change without notice.
2. DELIVERY AND ACCEPTANCE: Unless Seller otherwise specifies in a pre-shipment writing, delivery will be made FCA (Incoterms 2010) and/or FOB Seller's manufacturing plant or branch. Title, possession, and risk of loss shall pass to Buyer from the point of acceptance by the carrier and at that point any risk of loss, destruction of, or damage to the product will be on Buyer and shall not relieve Buyer from any obligation hereunder. It is Buyer’s responsibility to advise Seller in writing on the Purchase Order any requests for the freight to be insured. Buyer shall be liable for costs of insurance and transportation and for all import duties, taxes and any other expenses incurred or license or clearance required at port of entry and destination. Seller shall have the right to choose means of transportation and to route shipments when specific instructions are not included with Buyer's order. Seller shall have no liability whatsoever, nor shall this order be subject to cancellation for delay in delivery due to act of God, fire, flood, natural disaster, or civil or military authority, labor disturbance (including, without limitation, strike, slowdown and lockout), war, terrorism, insurrection or riot, civil disorder, embargo, government regulations or restrictions of any and all kinds, expropriation of plant by international, federal or state authority, power failure, inability to obtain materials and supplies, accident, explosion, or any other causes, failure of or delay in transportation, unusually severe weather, default of a supplier or subcontractor, or due to any other cause beyond Seller's reasonable control. In the event of delay for any such cause, the scheduled delivery date shall be extended for a reasonable length of time, but not less than the period of delay. Buyer shall be deemed to have accepted all of Seller’s articles purchased by and delivered to Buyer and subject hereto if not specifically rejected, or any prior acceptance revoked, and notice of such rejection, or such revocation of acceptance, is delivered in writing by Buyer to Seller at Seller’s plant, no later than five calendar days following delivery or tender of delivery of the article to Buyer, whichever occurs first. Such five-day period following delivery or tender of delivery is specifically agreed to by Buyer and Seller as reasonable for rejection, or revocation of acceptance, of any of the articles and for reasonable notification to Seller of such rejection or revocation. Failure of Buyer to reject, or revoke a prior acceptance, and provide notice within the time period stated will waive any right of Buyer to reject the articles or revoke any acceptance thereof, such time period also being acknowledged and agreed by Buyer and Seller as sufficient time to enable Buyer to discover any basis for rejection, or revocation of acceptance, of such articles.
3. TERMS OF PAYMENT: All orders are taken subject to prior credit approval. Payment is to be made in US funds. Terms of payment shall be Net 30 days of the date of invoice, unless otherwise stated in quotation or on Seller's invoice. For invoices including service/on-site work, the terms will be NET 15 days of the date of invoice. All accounts older than thirty days may be subject to an interest rate of 1½% per month on the unpaid account balance. Payments made by credit card will incur a credit card transaction fee of 3% of the invoice total.
4. LIMITED WARRANTY: Seller warrants that each article sold to Buyer under this order, quote, acknowledgment and/or invoice shall at the time of shipment (i) conform to applicable specifications, and (ii) be free from defects in material and workmanship during normal and ordinary use and service (the "Warranty"). Buyer's exclusive remedy and Seller's sole obligation under this Warranty shall be, at Seller's option, to repair, recondition, or replace (not install) any article or part thereof which has proven to be defective, or to refund the purchase price of such article or part thereof (at Seller’s discretion). Buyer acknowledges that Buyer is knowledgeable concerning the articles covered by this Warranty and sold in connection therewith which are being purchased, that Buyer has reviewed this Warranty and that the remedies provided hereunder are adequate and acceptable to Buyer. This Warranty shall expire one (1) year from the date the article is first shipped by Seller. Notice of claimed breach of this Warranty must be given by Buyer to Seller within the applicable period. Such notice shall include an explanation of the claimed warranty defect and proof of date of purchase of the article or part thereof for which warranty coverage is sought. No allowances shall be made by Seller for any transportation, labor charges, parts, "in and out" costs, adjustments or repairs, or any other work, unless such items are authorized in writing and in advance by Seller. Nor shall Seller have any obligation to repair or replace items which by their nature are expendable. If an article is claimed to be defective in material or workmanship, or not to conform to the applicable specifications, Seller will either examine the article at Buyer's site or issue shipping instructions for return to Seller. All freight charges associated are the responsibility of the Buyer. This Warranty shall not extend to any articles or parts thereof which have been installed, used, or serviced otherwise than in conformity with Seller's applicable specifications, manuals, bulletins, or instructions, or which shall have been subjected to improper installation, operation, or usage, misapplication, neglect, incorrect installation, overloading, or employment for other than normal and ordinary use and service. This Warranty shall not apply to any article which has been repaired, altered or disassembled, or assembled by personnel other than those of Seller. This Warranty shall not apply to any article upon which repairs or alterations have been made (unless authorized in writing and in advance by Seller). This Warranty shall not apply to any articles or parts thereof furnished by Seller to Buyer's specifications and/or furnished by Buyer or acquired from others at Buyer's request. SELLER MAKES NO EXPRESS WARRANTIES AND NO IMPLIED WARRANTIES OF ANY KIND, OTHER THAN THE WARRANTY EXPRESSLY SET FORTH ABOVE. SUCH WARRANTY IS EXCLUSIVE AND IS MADE AND ACCEPTED IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The remedies for this Warranty shall be only those expressly set forth above, to the exclusion of any and all other remedies of whatsoever kind. The limited remedies set forth above shall be deemed exclusive, even though they may fail their essential purpose. No agreement varying or extending the foregoing Warranty, remedies, exclusions, or limitations shall be effective unless in a writing signed by an executive officer of Seller and Buyer. This Warranty is non-transferable. If a party who had purchased articles from Buyer, or from persons in privity with Buyer, brings any action or proceeding against Seller for remedies other than those set forth in this Warranty, Buyer agrees to defend Seller against the claims asserted in such action or proceeding at Buyer’s expense, including the payment of attorneys’ fees and costs, and indemnify Seller and hold Seller harmless of, from and against all such claims, actions, proceedings or judgments therein. Buyer also agrees to defend and indemnify Seller of, from and against any loss, cost, damage, claim, debt or expenses, including attorneys’ fees, resulting from any claims by Buyer or third parties to property, or injury or death to persons resulting from faulty installation, repair or modification of the article and misuse or negligent operation or use of the article, whether or not such damage to property or injury to persons may be caused by defective material, workmanship, or construction. Under no circumstances shall Seller be liable (i) for any damage or loss to any property other than the warranted article or part thereof, or (ii) for any special, indirect, incidental, or consequential damage or loss, including but not limited to those arising from loss of profits, loss of production, increased cost of operation or spoilage of material arising in connection with the sale or use of, or inability to use, equipment or products, even though such expenses, damages, or losses may be foreseeable. The foregoing limitations on Seller's liability in the event of breach of warranty shall also be the absolute limit of Seller's liability in the event of Seller's negligence in manufacture, installation, or otherwise, with regard to the articles covered by this Warranty, and at the expiration of the Warranty period as above stated, all such liabilities shall terminate. Buyer’s purchase of any article(s) covered by this Warranty shall constitute acceptance of the terms and conditions hereof and shall be binding upon Buyer and Buyer’s representatives, heirs and assigns. The laws of the State of Illinois, USA, shall govern Buyer’s rights and responsibilities in regard to this Warranty and the transaction(s) subject thereto, and the state or federal of competent jurisdiction located in Illinois, USA, shall be the exclusive forum and jurisdiction for any action or proceedings brought by Buyer in connection herewith or any dispute hereunder. If any of the terms and conditions contained within this Warranty are void, the remaining provisions thereof are and shall remain valid and enforceable. This warranty covers only products of Control System sw; including products replaced, repaired or reconditioned by Control System sw; products of other manufacturers are covered only by such warranties as are made by their manufacturer. Control System sw neither assumes nor authorizes any other person to assume for it any other liability in connection with such equipment.
5. PATENTS; INTELLECTUAL PROPERTY RIGHTS: Seller will defend any suit or proceeding against Buyer, insofar as it is based on a claim that any article or part thereof furnished under this order constitutes an infringement of any patent of the United States, if Seller is notified promptly in writing and given authority, information, and assistance (at Seller's expense) for the defense or settlement of the same, and Seller will pay all damages and costs which by final judgment (or by settlement agreed to by Seller) are awarded therein against Buyer, provided, however, that no obligation or liability shall result from the foregoing provision if (a) any such article or part is manufactured in accordance with any design, drawing, or specification that is furnished to Seller by or for Buyer and that it is not based upon Seller's design, drawing, or specification, or (b) such infringement or alleged infringement arises out of or is based upon the use of the article or part with another article or material or in a particular manner. If, in a suit or proceeding in respect of which Seller is liable, as above provided, the article or part is held to constitute infringement and the use thereof is enjoined (or Seller consents to the non-use thereof), Seller will, at Seller's expense and at Seller's option, procure for Buyer that right to continue using such article or part, or replace it with a non-infringing article or part, or modify it so that it becomes non-infringing, or refund the purchase price and the transportation costs upon return to Seller of the infringing article or part. The foregoing provisions sets forth Seller's entire liability for, or resulting from, patent infringement or claim thereof. No right or license is granted to the Buyer under any patent, copyright, registered design, trademark or other industrial property right except the right to use or resell the goods (unless otherwise specifically granted).
6. TAXES: Prices do not include any present or future federal, state, or local sales, use, excise, manufacturing, processing, or importation tax, or any other tax or charges, that is/are or may be imposed on the articles or services covered by this order or on subsidiary articles or material incorporated therein, unless otherwise stated on quotation or current published price lists. Any such taxes or charges will be added to the invoices as separate items, unless appropriate exemption certificates are furnished to Seller.
7. COMPLIANCE WITH LAWS: Seller, to the best of Seller's knowledge and belief, is complying with all state and federal laws, orders, and regulations applicable to the manufacture of the articles ordered.
8. PARTIAL SHIPMENTS: Seller reserves the right to make and to invoice for partial shipments of completed articles.
9. CANCELLATION: Orders are not subject to cancellation, complete or partial, without Seller's prior written consent. Any reduction in quantities ordered shall constitute a partial cancellation subject to this clause. Where Seller consents to cancellation, settlement will be made on the following basis: Buyer will pay to Seller, upon delivery, the full purchase price of all articles completed at the time Seller agrees to cancellation, and if Seller elects to complete any part or all of the articles scheduled for delivery within 30 days from such time, the full purchase price of all such articles so completed. Buyer will further pay to Seller a percentage of the purchase price of all other articles equivalent to the percentage of completion thereof as determined by Seller's normal cost accounting methods. Buyer will also pay the full unamortized costs of materials, dies, tools, patterns, and fixtures made or contracted specifically for Buyer's order. Invoices for all cancellation charges are payable promptly upon presentation. If within 90 days from the presentation of such invoice Buyer does not instruct Seller as to the disposition of the material, etc., arising from the cancellation, Seller may sell the same, crediting Buyer for the proceeds. Buyer will also pay the reasonable costs and expenses incurred by Seller in making a settlement and in protecting property in which Buyer has an interest. Where United States Government contracts are involved, cancellation shall be in accordance with the appropriate armed services procurement regulations. Seller will defer manufacture or delivery of any articles only if and to the extent agreed to in writing. Any labor/programming fees associated will the order will not be refunded.
10. RETURN OF MATERIAL FOR CREDIT CONSIDERATION: All returns shall be made at the sole discretion of Seller. All items returned must have an authorized RMA (Returned Material Authorization) number which shall be referenced on documentation with the returned product. When applying for the RMA number, Buyer should be prepared to provide the product serial number, date of original shipment, and any other details requested. Material returned, whether for the purpose of a customer’s inventory balancing, resulting from the customer’s error in ordering or for any reason beyond the control of Seller, will be subject to a handling and restocking fee of $100.00, or 30% (thirty percent), whichever is greater. A time limit of six months from the date of shipment will be enforced in these situations. All items returned to Seller must be shipped freight prepaid, DDP (Incoterms 2010) and/or FOB Seller's plant. The return of any non-standard items may be subject to higher restocking fees. All items returned must be in new and unused condition and will be inspected prior to credit being issued. No obsolete parts may be returned. Collect shipments, any other shipment deviating from the DDP Incoterms and/or FOB Destination, and shipments without clearly marked RMA numbers will be refused. Any labor/programming fees associated will the order will not be refunded. Any freight charges and/or duty/customs fees will not be refunded.
11. EQUIPMENT RETURNED FOR EVALUATION OR REPAIR: Seller will provide detailed estimate for repair. Under circumstances where there is no response from the Buyer, after 30 (thirty) days, the property will be considered abandoned and will be disposed of according to standard company procedure and Illinois State Law.
12. DEFAULT: If Buyer shall fail to pay promptly when due any sum owing to Seller or to perform any agreement under this order or under any other order heretofore or hereafter placed with Seller, or if Buyer shall become insolvent or shall make an assignment for the benefit of creditors or if there shall be instituted by or against Buyer any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, or insolvency law of any jurisdiction, or for the appointment of a receiver or trustee in respect of any of Buyer's property, and if any such proceeding shall be instituted against Buyer, it shall not be dismissed within 20 days, or if Seller shall reasonably believe that Buyer is unable to meet Buyer's debts as they mature, then, and in any such event, Seller may, in addition to exercising any or all other rights and remedies that Seller may have, require payment of cash upon delivery, and Seller may at any time and without notice to Buyer, cancel any or all of Seller's unperformed obligations under any one or more of such orders. Upon any cancellation under this clause, Buyer shall thereupon become obligated to pay to Seller the same sum in respect to each such order as if such order had been cancelled by Buyer with Seller's consent and settlement had been made on the basis set forth in Paragraph 9 of these Detailed Terms and Conditions of Sale. In the event legal action or other proceedings are instituted to collect any sums due to Seller hereunder, Buyer agrees to pay Seller all of Seller’s reasonable attorneys’ fees and expenses incurred in connection with such action or proceeding.
13. INDEMINIFICATION DEFENSE: It is understood that Seller has relied upon data furnished by and on behalf of Buyer with respect to the safety aspects of the products supplied hereunder and /or representations by or on behalf of Buyer and that such products will not be applied or used by Buyer or its customers in such a way as to detract materially from their safety in use, including, without limitation, in the manufacture of a product of which Seller’s products will be a component and that it is Buyer’s responsibility to assure that such products, when installed and put to use, will be in compliance with safety requirements fixed by applicable law and will be otherwise legally adequate to safeguard against injuries to persons or property. Buyer agrees to defend and indemnify and hold harmless Seller, and its directors, officers, employees and agents of, from and against any and all loss, damage, cost, claim, liability or expense including but not limited to reasonable attorneys’ fees arising out of or resulting from any claims made by Buyer or by third parties for damage to property, or injury or death to persons resulting from faulty or improper installation, use, repair, alteration or negligent operation of the article(s) sold hereunder, whether or not such damage to property or injury to persons may have been caused or be caused by defective material, workmanship or construction or inadequacy for the buyer’s intended use of the safety features, devices or characteristics of the products specified herein, or in the installation, use or operation of such products, except claims solely for repair or replacement of defective parts covered by the warranty set forth in Paragraph 4 hereof.
14. GOVERNING LAW: All transactions covered by this order shall be construed and enforced in accordance with, and shall be governed by, the laws of the State of Illinois (excluding rules on conflicts of laws and excluding the Convention on Contracts for the International Sale of Goods), and the state or federal court of competent jurisdiction located within Illinois, USA, shall be the exclusive forum and jurisdiction for bringing any action with respect to disputes regarding this order or items sold hereunder.
15. EXPORT: Buyer and Seller agree to comply with all applicable U.S. Government export regulations,
including but not limited to the Export Administration Regulations, as may from time to time be amended (15 CFR Parts 730-774)("EAR"). Buyer covenants and agrees that Buyer will not, directly or indirectly, export or re-export any software, associated documentation, or other items to any area to which such export or re-export is forbidden by EAR.
16. MODIFICATION: THESE TERMS AND CONDITIONS CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES RELATING TO THE SALE OF THE GOODS DESCRIBED ON THE FACE HEREOF, AND NO ADDITION TO OR MODIFICATION OF ANY PROVISION HEREIN SHALL BE BINDING UPON SELLER UNLESS MADE IN WRITING AND SIGNED BY A DULY AUTHORIZED REPRESENTATIVE OF SELLER LOCATED AT SELLER’S APPROPRIATE ORDER ENTRY LOCATION.