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HomeMy WebLinkAboutTerms & Conditions of SaleEmerson Network Power, Energy Systems. North America, Inc. TERMS AND CONDITIONS OF SALE (Rev, 1 /07) Emerson Network Power, Energy Sysiems. North America Inc, is herein referred to as the "Seller" and the customer or person or eerily purchasing goods and/or services ("Goods") and er Remising suflwore and/or firmware which are preleaded. or to be loaded Into floods t"Soflwarc') from Seller is referred to as the "Buyer" These Terms and Condition, any pea rise or schedule. quotation, acknowledgment, Seller's scope of work or invoice From Seller relevant nee the sale endear license of the Goods and licensing of Software and all documents incorporated by specific reference herein or therein. constitute the complete and exclusive seamen of the terms or the agreement governing the seta of Goads and/or license of Software by Seiler to Buyer. Seller's acceptance of Buyer's purchase order is expressly conditional on Buyer's assent to all of Seller's lame and conditions of sale, including tents and conditions Leer are different from or additional to the terms and conditions of Buyer's purchase order. Buyer's acceptance of the Goods aidear Soflwarc will manifest Buyer's assent to these Terms and Cond)Dens. Seller reserves the right in its sole discretion to refine orders. I. PRICES: Unless °Lhenvin specified in writing by Seller. the price quoted or specified by Seller for the Goods and/or software shall remain in effect for thirty (30) days after the dale of Sellers quotedne provided nn unconditional aulhorieation from Buyer for the shlpmeet or the Goods and/or Software is received and accepted by Seller within such time period. Vag aulhoriontion is not received by Seller within such thin}' (30) day period. Seller shall have the righn to change the puce for the Goods and/or Software et the time of shipment. All prices and license fees are exclusive of laves. Iransponatlon and insurance. which are to be borne by Buyer- Unless otherwise specified by Seller. pans ('-Paris') that arc required for the performance of services will bee furnished at Seller's then-provoiling prices. 2. 7AXE5: Any current or firma lax or governmental charge ter increase to same/ affecting Sellers casts of production sale. or delivery or shpmeni or which Seller is otherwise required to pay or coiled in connection with the sate. purchase. delivery. storage, processing, use or conmmption of Gads. Puns and/or Software, shall be for Buyer's aerount and shall be added to the price. 3. TERMS OF PAYMENT: Unless alhemise specified by Seller. tarns are net thirty (30) days from date of Sellers invoice in U.S. currency. Seller shall have the right among other remedies. either to terminate this agreement or to assp1td Anther performance under this and/or other agreements with Boyer in rho event Buyer fails 10 make any payment when due, which other agreements Buyer and Seller hereby emend accordingly. Buyer shall be liable for all expenses. including reneges' fees, relating to the collection of pall due amounts- limy pervem owed to Seller is not paid when due. it shalt bear Interest re a rate Lo be determined by Seller. which sine nor exceed the maximum rate permitted by law. from the dale on which it is due until it is paid. Should Buyer's financial responsibility become uaeatisfectory to Seller. cash payments or aeeariry satisfactory to Seller may be required by Seller for future deliveries of Goods and/or Software. if such cash payment or security is not provided. in addition to Sellers other rights and remedies. Seller may discontinue deliveries. Buyer hereby grants Sallee a security interest in all Goode and/or Software sold to Buyer by Seller. which eecurily interest shall continue until all such Goods end/or Software ate fully paid for in can and Buyer, upon Sellers demand. will execute end deliver to Seller such instmeenu as Seller rcquesrs to protect and perfect rush security Interest. 4. SHIPMENT AND DELIVERY: While Seller /rill use all reasonable commorclel effort, to maintain the delivery date(sl and/or performance deters) acknowledged or quoted by Seller. all shipping dates and/or performance dates are approximate and not guaranteed. Seller novenas the right to make partial shipments Seller. at its option. shall not be bound to lender delivery of any Goods, Parts and/or Software for which Buyer as not provided shipping instmetions and other required infmtnation. If the shipment of the Goods. Parts and/or Software is porlponed or delayed by Buyer for any reason. Buyer ham to re1mburse Seller for any and all storage costs and other additional expenses resulting therefrom. For sales in which the end deettnatl0n of the Goods. Pans and/or Software is ou1sido of the Unilcd States, risk of loss and legal line to the Crowds. Parts and/or Software shall nearer to Buyer immediately after the Goads. Parts and/or Software have passed beyond the imitated limits of the United Slates. Far all other shipments. risk of loss end legal title shell pass from Seller to Buyer upondelhery to end receipt by carrier at Seller's 'hipping point. All shipments arc F.O.B. Seller's chipping paint. Any claims for shortages or damages suffered in transit are the responsibility of Buyer and shell be snhmitled by Buyer directly so the crier. Shortages or damages must be identified and signed for at the lime of delivery, 3. BUYER'S INSPECTION: Buyer shoe ieepect Goods and/or Software delivered to it by Seiler Immedlately upon receipt, and. any coure of dealing to the contrary notvithslanding. failure of Buyer la give Seller notice of any claim within 30 days after receipt of such Goods and/or Software shall be an unqualified acceptance of such Goods and/or Software. layer. al its option and exam. may inspect and absent the teeing by Seller of the Goods and/or Software for compliance with Seller's standard ten procedures prior to shipment which Inspection and costing ,hall be conducted at Seller's plan) at such easonable time as k ,pacified by Seller, Any rejection of the Goods and/or Software must be made promptly by Buyer before shipment. Tens shall be deemed te be satisfanorile campleed and the test fully met when the Goods und/or Software meet Sellers crilena for such procedures, G. I TURL'1Fe11G0ODS: Advance written permission re ream Goods and/or Software must be obtained from Sake Such Goods must be anent, unused. catalogued Goods and must be shipped. lrunsponetion prepaid. to Seller. Returns made without proper written permission will not be accepted by Seller. If appliabte, credit for such retuned Goods will be Maw billing peke or current price. whichever is lower. from which will be deducted an inspection and repaeldng charge and the con of any reconditioning, Seller reserves the right to inspect Goods prior to authorizing return. 7. LIMITED WARRANTY: Subject to the limitations of Saclion 11, Seiler warrants that the Goods and/or Software sold by Seller will be free from defects In material and workmanship and meet Sellers published specifications at the rime of shipment or performance under normal use and regular service and mainteranee for a period of one (II year from the dale of shipment or performance by Seller. unless othorniu specified by Seller to writing. Consunables. including. 1rith0ut Iimitaton glass parts and electrodes. membranes. liquid junction, electrolytes and reagents. wrings, plastic tubes. elegantere. etc, are warranted robe free from deicers in material and sarkrnenskp under normal. use and service fora period of ninety (90) days from the dale of shipment by Seller. Goods purchaec4 by Seller from a third party for resale to Buyer ('Resale Products') shall carry only the warranty extended by the original manufacturer. Seller assigns to Buyer any warranties that arc made by manufacturers and suppliers of Parts and which are anignobte. Goode and/or Software repntred or replaced during the applicable warranty period will be returned to R11)or sr Se11er's expense and will be covered by the forcgain5 warranties for the remainder of the original warranty period or ninety 1901 days from the date of shipment. whichever is longer. Except as specified nave, Pans fbrnirhed amender ere furnished AS -IS, WHERE•IS, WITH NO WARRANTY WHATSOEVER. THE WARRANTY 5£T FORTH 1N THIS SECTION 7 AND THE WARRANTY SET FORTH IN SECTION 11, ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY SELLER WITH RESPECT TO THE GOODS AND/OR SOFTWARE AND ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO SELLER IN SPECIFICATIONS, DRAWINGS OR OTHERWISE, AND WHETHER OR NOT SELLER'S PRODUCTS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR HINER'S USE OR PURPOSE. There warranties do not emend to any losses or damages due to mlmu, accident, abuse. neglect. normal wear and tear. negligence (other than Seller'U. unauthorized modification or alteration use beyond rated capacity. unsuitable power sources or environmental conditions. Improper installation repair. hanAiing mnintelmeee or application or any other cause Mina fault of Seller. To the extent that Buyer or its agents have supplied epeciflcallons, information representation of operating condition or other data to Seiler in the selection or design of the Goods and/or Software and the preparation of Seller's quainter!. and In the stem that actual operating conditions or other conditions differ from those represented by Buyer. my warranties or other provietons contained herein which are affected by such conditions shell be null and void. Buyer assume all other responsibility for any goes, damage. ar injure' to persons er properly arising on of, connected with, of resu1Ang from the use of Goods andor Software, either alone or incambinnion with other products/components. B. LIMITATION OF REMEDY AND LIABILITY: THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER (OTHER THAN THE WARRANTY PROVIDED UNDER SECTION 11) SHALL BE LIMITED TO REPAIR, CORRECTION OR REPLACEMENT, OR REFUND OF THE PURCHASE PRICE UNDER SECTION 7. SELLER SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE AND THE REMEDIES OF BUYER SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE. IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE. STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL SELLER'S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC GOODS, PARTS AND/OR SOFTWARE PROVIDED BY SELLER GIVING RISE TO THE CLAThI OR CAUSE OF ACTION. BUYER AGREES THAT 1N NO EVENT SHALL SELLER'S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXTEND TO INCLUDE INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. The term "consequential damages" slab include, bur not be limited to. loss of attlicipaled profits. business Intc«uptan loss of use. revenue, reputation and dera, cons incurred. including wallow. limitation, for aphid. fuel. power and loss or damage la property or equipment. It is expressly understood that any rechntcal advice hwnished by Seller uilh respect no to use of the Goods and/or Software is Stun without charge, and Seiler assumes no obligation or liability for ;lie advice given, or resells obtained. all such advice being given sad accepled at Buyefi risk. 9. DRAWINGS: Seller's prints and drawings !including without limitation lbe underlying Technology} furnished by Seller to Buyer in connection nab this aerecmenr arc the property of Seller and Seller retains all rights. including without Mandan. cxclosie rights ease. licensing and mile. Possession of such priuts or drawings does not convey to Buyer any rights or license, and Buyer still ream all copies (in whatever medium) of such prima or drawings to Seller tmnherhately upon segues! therefor. I0. SOFTWARE: Norwitheronding any other provision herein to the contrary. Seller or epplleable third party licensor to Seller shall reustn all rights of ownership and tide in its respective Software. including without ItankaUon ail rights of Ownership and lisle in its respective copies Of such Software. Except as otherwise provided herein. Buyer Is hereby Weal 1 nonexclusive. nontransferable royalty free license to use the Software Incorporated inro the Oaade solely for purposes of Buyer properly utiliang such Goods purchased from Seller. All other Software shall be Ihratllled to and used by. Buyer only rifler execution of Seller's (or Ric licensor sl applicable standard license agreenrenL the terms of which are incarpomled herein by reference. 11. PATENTS AND COPYRIGHTS: Subject to the Limitations of the second pempaph of Scotian 0, Seiler warinnn that the Goods and/or Software sold, except as ere mode specifically for Buyer according to Buyers speclficouon4. do not Infringe any valid U.S. patent or copyright in existence as of the date of rhipmem. This warranty Is given upon the audition Iha1 Buyer promptly notify Seller of any data or suit involving Sneer In which such infringement is alleged and cooperate fully with Seller and perm Seiler to control completely the defense. settlement or compromise of any ouch allegation of Infringement. Seller's wanamy as to utility patents only applies to infringement arising solely out of the inherent operation Worming to Seller's specifications and instruction of web frauds and/or Software. In the event (i) exit Goods and/or Software arc held to infringe such a U.S. peteot or copyright in such suit, and the use of such Goods and/or Software le enjoined. ar ail a compromise or settlelnem is made by Seller. Seller- shall have the right at its option and a0penre. to procure for Buyer the right to continue using such Goods and/or Software. or replace them with noreinfringieg Goadsand/or Software. or modify same to become non - infringing, or grad Buyer a credit for the depreciated value of such Goods eldlor Software and accept reruns of them. In the event of the foregoing, Salter may also, at its option, cancel the agreement e100 italue deliveries of such Goods and/or Software, without liability. 12. EXCUSE OF PERFORMANCE,: Seller shall nor be liable for delays la performance or for non-performance due to acts of God: acre of Buyer, eats epidemic, fire: flood: weather) IObatag0: Rakes er Iobor disputes: civil disturbances or riots: governmental requests, restriction. allocations. laws, regulations. Ordeal Or actions; uruvoilability of or delays in uoasponation, default of suppliers; or unforeseen clrcumslancei or any tans r attuln beyond Solenn reewnable control. Deliveries or other performance maybe suspended for an appropriate period of time or Mingled by Seller 0p0a notice to Buyer to the even) of any of the foregoing, but the balance of the agreement shall otherwln amain unaffected e/ a result of the foregoing. If Seller determines that its Weeny to supply the total demand for the Goads. Peels aledror Software. or 1a obtain mortal used directly or indirectly in the monufpelure of the Goods. Parts end/or Software le hindered. Halted er snide intpacdcable due to causes set forth above. Sella: may allocate Its available supply' of the Gnosis. Pam aedlor 5aftware or such material (without obligation to acquire other applies army such Goods. Pans. Saftwnre or MAWS!) among its purchasers an loch basis es Sailer de1ennincs to be equitable without liability for any failure of performance which May result therefrom. 13. CANCELLATIONS: Buyer may canal orders only upon teawnable adsanre wanan Dodo and upon payment re Seller of Seller's cancellation charges which itrclnde, entail other things, all Costa .and expanses incurred, and, to enter commitments made, by the Seller and a ru'rsonable profit thereon. Seder's determination of ouch temminallon charges shall be oonclushn.. Orders for non-standard Goods and/or custom Goods we final end nano eellble. • la. )rHANGF5: Buyer may request changes or additions to the Goods a0Nor Soflwe a consla(ane with Sellers ipecificalion and criteria. In the aenl such changes or addition are sooepted by Seller. Seller may mile the price. license fees and dates of delivery or performance. Seller reserves the right la chase design end specifications for the Grads, Pans endear Software without prior notice to Buyer. except with respect to Goods and/or Software being fnaia-to-order for Buyer. Seller shall have no obligation Ice install ee make such change In any Goode and/or Software manufeeltued prior to the dote of such change. 15. NUCLEAR/hIEDICAL. GOODS. PARTS AND SOFTWARE SOLD HEREUNDER ARE NOT FOR USE IN CONNECTION WITH ANY NUCLEAR MEDICAL. LIFE-SUPPORT AND RELATED APPLICATIONS. Buyer accepts Goods. Pads and 5aftware with the foregoing understanding. agrees to comm0Ncate the same In writing to any,' subsequent purchasers or users and to defend. indemnify and hold heruleu Seller from any grime lase& wits, judgments and damages, including Incidental and consequential damages, miring Rom ouch use. whether the ewe of action be baud in ton. aontrud or otherwise, including allegations that the Seller's liability is bad on negligence er and Ilebiltty. IS. TOOLING' Tool, die. and pattern charges, if any, are In addiion to the price of the Goods and are due and payable upon complelton of the tooling. All such teak, dies and proms shall be and remain the property of Seller. Charge' for tools, dies. wed patterns de not convey to Buyer, ride ownership interest in or righi to possession aT removal. or prevent (heir use by Seller for other purchasers. except as olhanvtic expressly provided by Sella and Buyer in writing with reference to this provision l7, ASSIGNMENT: Buyer shall not assign its risks or delegate its dudes hereunder or any interest herein without de prior written consent o[Seller. and any such assignment without such Mont shall be void. • • IS. BILLABLE SERVICES: Additional charges will be billed to Buyer al Seller's than-proyalling labor rotes and Para prices for any of the kneeing: al any serelces not specified in Seller's quotation. Seller's order -acknowledgement or other documents referenced herein ar therein: b1 any wolves performed al times ashen than SeIkr'a normal unite hour: c1 if reasonable sale and/or equipment access is denied the Seller's services reprewnmtive: or dl 1111 is neenetary, due 10 lace! clrcuntances. to arc union labor or hire an outside contactor. Seller service perionnei will provide rupee ision only and the coat of such union or contract labor will be cher5ed to Buyer, 19. NON-SOLICIT/el-ION- Buyer shall not irritate directly or Indincetly, er employ any employee of Seller during the period any Goods end/or Software are being provided to Buyer and rot A period of ant I II year after the last provision of Goode on eVor Software, 2d. EXPORT/IMPORT[ Buyer agrees that all applicable import and export control lawe regulation. orders and equitements, including wilhoul limitation thew of the United Suttee and the European Union and thejurisdicdms In which the Seller and Buyer are established or from which Crowds, Parts and/or Software maybe supplied. will apply to their receipt and use. In no men/ shall Buyer use. trader. release,:mpon, export, Goads. Pans or Sohxare in violation of such applicable laws, regulalione orders or requirements, 21. BUYER SUPPLIED DATA. To the exunt that Seller has been provided by or on behalf of Buyer any specifications, description of aprmling conditions or other data and information in connection with the wleasi0n or design of the Goods and/or Software or the provision of een'ices, and the actual operating conditions or other clmustenees differ from those provided by Buyer and relied upon by Seller. any warranties or other prodigal contained herein which are effected by such conditions shell • be null and void. • 22, GENERAL PROVISIONS: These term, and condltlwn supereede all othercommunlcallmne. negotiations and prior Oral or warren statements regarding the subject molar of these arms and andiron. No change, modification reeelsaion, dlsehnrge, abandonment- or Waiver of these terms and conditions rati be binding upon the Seller unless wade In xTi(istg and signed an its behalf by a duly authodzed ropresentallln of Seller. No conditions. usage of trade, course of ducting or parfor artee, understanding or agreennem purporting to modify, vary, explabs, or supplement these /emu and conditions shall be binding unless hereafter made in ninny! and signed by the party -to be bound. and no eadlllealoner Weirton] perms shall be applcable to this agreement by Seller's receipt. acknowledgment. or aeoeptallee of Ruralist orders, Nipping loan -don forms. or Other docsmonlaiion containing terms as variance with ar in addition 10 }hose sd (arils herein. Any such rnodificatldu or additionsl lama are specifically r0Jected an deemed a material atleralian leueer If 'hie acumen! shall to deemed an aaepance of e prior offer by Buyer. such acceptaace is expressly conditional upon Bµytr'' assent to any additional or different tenors see forth herein. Na waiver by either party with respect to any breach or default or of rely -right or remedy. and no comae of dealing, shall be deemed to candlelit a continuing waiver of any other breech or default or of any other right or remedy, unless web waiver be expressed in writing and signed by the parry to be amid. An typographical or clerical errors wade by Seller to any quotation. acknowledgment or publication arc subject to correction. The validlly. performance. and all other molten+ relating to the interpretation and axed of His agreement shell be governed by the law of the state of Ohio, without regard to be conflicts of lawn principles. Buyer and Seller spa that the proper venue for all oceona seising in comedian herewith Shall be only in Ohio and the prinks agree to submit to euee Jurisdiction, No action- rcgardteas of farm, arising out of tronsection elating to this contract, maybe brought by either party mare Than two (21 years after the cause oration has accrued- The U.N. Convention an Contacts for the International Sales of Goods dull nor apply to dile agreement.