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HomeMy WebLinkAboutTerms & Conditions of Sale 2Emerson Network Power. Energy Systems, North America. lnc. is herein referred to as the "Seller' and the customer or person or entity purchasing goods and/or services ("Goods") and/or licensing software and/or firmware which are pralonded. arm be loaded into Goods ("Soflnere") from Seller is referred to as the "Buyer" These Terms and Conditions. any price list or whcduk. quotation. admowledgment. Seller's scope of work or invoice from Seller relevant to the sale and/or license of the Gads and licensing of Software and all documents Incorporated by specific reference herein or therein constitute the complete and exclusive-a=Mment of the terms of the agreement governing the sale of Goods and/or license of SUM are by Seller to Buyer, Seller's acceptance of Buyer's pumheae ardor Is expressly conditional on Buyer's assent to all of Seilei s terms and conditions of sale. including tams and conditions that are different from or additional la the terms and conditions of Buyer's purchase order. Buyers acceptance oldie Goode and/or Software will manifest Buyer's aasam to these Terms and Conditions. Seller reeerv'ee the right in its sok discretion to refuse orders, 1. PRICES: Unless otherwise speolfied in writing by Seller. the price quoted or specified by Seller for the Goods and/or Software shall remain in effect for thirty 130) days after the date of Selkra quotation provided an uncondi4mua auNariration from Bayer for the shipment of the Goods anelor Software is received and accepted by Seller within such lion period. If such authoriaatior is not received by Seller within luck thirty (30) day period. Seller shall have the right. to change the price for the Goods and/or Software at the time of shipment All prices and Vicente fees ere exclusive of Loxes. transportation tarsi insurance. which are to he borne by Buyer. Unless otherwise apcelfied by Seller, parts (`Pana'i Wei are required for the performance of services will be furnished at Seller's then -prevailing prices- 2. M> AO: Any current or futon tax or governmental charge for increase In same) affecting Sellers ask of production. sale, or delivery or shipment or which Seiler Is otherwise required to pay or collect In connection with the sale. purchase. delivery, storage, processing. use or consumption of Goods. Pans and/or Software, shall be for Buyers gement and shall be added to the price. 3. TERMS OF PAYMENT Unless otherwise specified by Seller. terms are net thirty (10) days from date of Seller's invoice in U.S. currency, Seller shill have the eight twang other remedies. either to terminate this agreement or to suspend further performance under this and/or other ngrameras with Buyer to the event Buyer falls to make any payment when due. which other agreements Buyer and Seller hereby amend accordingly. Bayer .hall be liable for ali avenue. including attorneys' fees relating to the collection of pact due anwunu. 1f eny' payment owed to Seller is not paid when due. it shall hear Interest at a tam to be determined by Seiler. which shall not exceed she maximum ram permitted by law, from the dale on which it is due until it Is paid. Should Buyers financial responsibility became unsatisfactoy to Seller, cash payments or security Miamian. to Sella may be required by Seller far future deliveries of Goods and/or Software, if such cash payment or marshy is not provided, in addition to Sellers other rights and remedies, Seller may discontinue deliveries. Buyer hereby grange Seller a security interest in all Goode and/or Software sold to Buyer by Seller, which security Interest shell continue until all such Goods and/or Software are fully paid foe in ash. and Buyer. upon Sellers demand. will execute and deliver to Seller each Insrumems as Seller requests to protect and perfect each security interest. 4. SHIPMENT AND DELIVERY: White Seller will use all reasonable commercial effona to maintain the delivery claims) and/or performance dalolst acknowledged or quoted by Seller. all shipping data and/or performance dates arc approximate and not guaramxd. Seller reserves the right to make partial shipments. Seller, at its option. shall not be bound to tender delivery of any Goode Pans and/or Software for which Buyer but not provided shipping Instructions and other required information. If the shipment of the Goode. Pans and/or Software is postponed or delayed by Buyer for any reason Buyer agrees to reimburse Seller for any and ail stomp costs end ether additional expenses resulting therefrom. For sales in which the end destination of the Goods. Pans and/or Software Is outside of the United States, risk of loss and legal title to the Goods, Parts ondlar Software shell lrnnsfer to Buyer immcdktcly after the Goods. Parts and/or Software lave passed beyond the territadal limits of the United States. Fat all other shipments, risk of loss and legal !ilk shall pass from Seller to Buyer upon delivery to rind receipt by carrier at Seder's chipping point A11 shipments are F.O.B. Seller's shipping point Any claims for shortages or damages suffered to transit are the responsibility of Bayer and shall be 1ubmilled by Buyer directly to the carrier. Shortages or damages musl.be identified and signed for al the time of delivery. 3. BUYER'S INSPECTION: Buyer shall inspect Goode and/or Software delivered to it by Seller immediately upon receipt and. any course al dealing to she contrary nolwilhstanding. failure of Buyer to give Satter notice of any claim within 30 days after receipt of such Goods and/or Software shall be an unqualified acceptance of each Goods and/or Software. Buyer. st its option and expense, may rooter and observe the testing by Seller of the Goads and/or Software far compliance with Seller's standard lest procedures prior to shipment, which Inspection and testing shall bo conducted at Sellers plant al such reasonable limo a. le specified by Seller. Any rejection of the Goods and/or Software must be node prempdy by Buyer before shipment. Tess shall be deemed to be satisfactorily completed and the test folly met when the Goods end/or Software meet Sellers criteria for such procedures. 6. REJURN]%D GOODS: Advance written permission to mum Goads and/or Software must be obtained from Seller. Such Goods must be current, unused. catalogued Goods and must be shipped lranaporadan prepaid. to Seller. Returns mad: without proper written pemissionwill not be accepted by Sallee. If applicable. credit for wch returned Goods will beat the billing price or current price, whichever is lower, from which will be deducted an inspection and repaaldng charge and the coil of any reconditioning. Seller reserves the right la Inspect Goods prior to authorizing return. 7. LIMITED WARRANTY. Subject to the limtauons of Section 8, Seller warrants that the Goods and/or Software sold by Seller Hill be free from defals In material and workmanship and meet Seller's published specifications at the time of shipment or performance undo normal use and regular service and maintenance for a period of one it) your from the date of shipment or performance by Seller. Was otherwise specified by Seiler in waiting. Conrmneblea. including. without limitation gloss pans and eleclrodee. membranes. liquid junctions. electrolytes and reagents o•rings plastic tubes, elastomers. etc. are wanmaled to be free from defects in material and workmanship under normal use and sans for a period of ninety i901 day. from the dare of shipment by Seller. Goods purchased by Seller from a third pang for resale to Buyer ("Resale Products"1 shall carry only the warranty extended by the original manufacturer. Seller assigns to Buyer any warranties that are made by manufacturers and monitors of Pans and which are assiganb1. Goods and/or Saftwore repaired or replaced daring the applicable warranty period will be removed to Buyer al Seller's expense and will bc covered by tie foregaiog warranties for the remainder of the original warranty period Or ninety (90) days from the date of shipment, whichever is longer. Bx1opl of specified above. Pans furnished hereunder arc furnished AS•IS. WI-ERE•IS. WITH N0 WARRANTY WHATSOEVER. THE WARRANTY SET FORTH IN 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 BUYER'S USE OR PURPOSE. These warranties do not extend to any losses or damages due to atiewee, accident. alum. neglect. normal wear and tear, negligence (other than MUMS). usamhonzed modification or 'Remain, use beyond rand capacity, unsuitable power sources or enaironmenul conditions. improper installation repair. handling. lnalmertmee or application or any other cause not the (mull of Seller. To the extent that Buyer or its agents have supplied specifications. Information representation of operating conditions or other data to Seiler in the selection or design of the Goods ondar Software and the prepnmlion of Saller'e quotation and in the event that actual operating condition. Or outer conditions differ from Woae represented by Buyer. any warranties or other provisions contained herein which are affected by such conditions otm11 be null end void- Buyer assumes all other reapomlbility for any loss. damage. or injury t0 persons or property arising out of, connected with. or resulting from the use of Goode arldror Software. either alone or in combination with other products/components. 0. ),IMITATION OF REMEDY AND LIABILITY: Ta3E SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER (OTHER THAN THE WARRANTY PROVIDED UNDER SECTION 111 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 POR THE SPECIFIC GOODS, PARTS AND/OR SOFTWARE PROVIDED BY SELLER GIVING WSE TO THE CLAIM 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" •hall include. but net be limited to. Sus of anticipated profits. Mistimes interruption lass of use, revenue, reputation and dam. oasts incurred, including without limitation. for espial. fuel. power and lass or damage to property or equipment 11 is expressly understood that any technical advice furnished by Seller with seeped to the use of the Goode and/or Software is given without charge, and Seiler assumes no obligation or liability far the advice given. or results obtained. all such advice being given and accepted at Buyers risk • 9. DRAWINGS: Seller, prink and dmwlogs (including nilhaul limitation the nn4erl0ng technology) furnished by Seller to Bayer in connection with die agre0mem are the property of Seller and Seiler retains all rights, including without limitation exclusive rights of use. 'laming and sale. Possession of such prints or drawings does not convey to Buyer any rights or license. and Buyer shall return ell topics lip whatever nediuml of such prints or drawings to Seller immediately upon request therefor. Emerson Network Power, Energy Systems, North America, Inc. - TERMS AND CONDITIONS OF SALE (Rev. 1/07) - 10, SsimirA t', Noluilhstanding any °thee provision herein to the contrary, Seller or applicable third pony licensor to Seller shall retain all rights of ownership and lisle in its respective Software. Mandist/ without limitation all nghta of ownership and tide its its respective copies of such Software- Except as otherwise pmvlded herein, Buys is hereby grassed a nonexclusive. nomlrunsferable royalty free license to use the Software Incorporated into the Coo& wily for purposes of Buyer properly utilizing such Goods purchased from Seller. MI other Software shall be &rldahed to, aril used by. Buyer only after execution of Seller's for the licensor's)appiirnble standard license agreement the terms of which are Incorporated herein by reference. • 11. PATENTS AND COPYRIfej(TS: Subject to the limitations of second paragraph of Section S, Setter wamnte that the Geode and/or Software sold. exam as are made specifically for Buyer according to Buyer's speelfleetions, do not infringe any valid U.S. patent or copyright in existence as of the date of shipment. T1111 warranty le given upon the condition that Buyer promptly natlfl Seller of any claim or soil invoking Buyer in which soch.lnfdogo want Is alleged and cooperate fully with Seller and penult Seller to control completely the detente. aoldmneat or compromise of any Inch allegation of Infringement. Sellers sternum as co utility patents only appliestoinfringement arising wlely put of the inherent operation according to Sellers epecificaliona and instructions of such Goods and/or Software. In the event (i) such Goode and/or Software are laid to infringe sack a U.S. patent or copyright in each suit, and the case of such Goads anti°, Software is enjoined, or Iti) u comprondae or settlement is made by Seller. Seller. shall have the sight et ik option sad expense. to premiere for Buyer the right to continue using such Goode andar Software, or replace them with non -infringing Goods and/or Software, or modify same macrame mini infringing. or grant Buyer a credit for the depreciated value of such Geode and/or Software and accept return of them. In the event of the foregoing. Seller may else, et Ita option, cancel the agnm9nt as to future deliveries of such Goods and/or Software. without Itabilit3'. - 12_ LI E OP PERFORMANCE: Sella shall not be liable for delays lea performance or for norprrfohtmuce due to acts of God; nets of Buyer; war: epidemic', lire flood: weather. sabotage, Hrikee or labor disput a; civil dialtubances or rills. govemmentnl requests. restrictions allocations, lows, regulations orders on actions; unavailability of or delays in transportation. default of suppliers; or unforeseen circumrtmuces or any events or calms beyond S.Ilere reasonable control. Peliveries or other perlonnancc may he suspended for an eppropdMe period of time or canceled by Seller upon notice to Bayer in the event of any of the foregoing, but the balance of the agreement shall otherwise remain unaffected es a result of the foregoing. If Seiler determines that its ability to supply IM laal demand for the Goods. Parts and/en Software. or to obtain material used directly or indirectly in the manufacture of the Goode. Prole anti° Software is hindered. limited or made Impracticable due to causes let forth nbuve. Seller may allocate its avallnble supplyof the Goods, pate and/or Software or such material lwilboul obligators to acquire other supplies of any such Goads. Perla Software or material) anteing Its pnrchease on such bails as Sella determines to be equitable without liability for any failure of performance which may resulltherefrom. • 13. CANCELLATION.: Buyer may cancel orders only upon rnsorable advance written Notice and upan payment fo Seller of Seller's cancellation charges which include, among other things. all outs and expense. hmurred'end to over commitments made. by the Seller and a reaaonable profit thereon. Sellers determination tionn of sift sarmlrulion charges shall he conclusive. 0rdert for eon -standard Geode and/or custom Goads are final end non<meeimble. 14. CHAP{GES: Buyer may request changes or additions to the Goads sadder Software consistent wllh Sed)ors specifications and criteria. In the event such changes or additions are accepted by Sena, Saltwater), revise the pries license fees end data of delivery Or performance. Seller racemes the right to change deeiges and upeeitleelkna for the Coeds, Parte and/or Software without prior notice to Buyer. except with respect to Goods and/or Software Wine enadcemlder fdr Buyer. Seller shall lase no obligation to install or make such change in any Goods and/or Software manufactured prim m the due of such change. . 15. NUCLEAR/MEDICAL. GOODS. PARTS AND SOFTWARE SOLD HEREUNDER ARE NOT FOR USE IN CONNECTION WITH ANY NUCLEAR. MEDICAL. LIFE-SUPPORT AND RELATED APPLICATIONS. Buyer accepts Goads. Pans and Software with the foregoing understanding agrees le communicate the sumo in wilting to any subsequent purchasers or users and to defend indemnify and hold harmless Sella from may claims, loess, nits. judgments and damages. including incidental and caniequenrial damages, arising from such Wes. whether the cause of action be based In tort, contract 0 a1hcnvisr, including allegations Ilan the Seller s lkblllly ie based on negligence or prlal Ua1U4y, la, ,TOOLIrjg Toot die, and pattern charges, If any, am in addition to the price of the Goods and eve due and payable upon completion of the tooling. All such tools, dies and patterns shall be and remain the property of Seiler. Charges for tools. dies. and patterns do net convey to Buyer. tide, ownership intemt in or right§ to possession or removal. or prevent Weir tree by Seller for other purchasers, except es othrnvise expressly provided by Salkr an4 Buyer in writing width refarc1Ce to this provlsten 17. ASSIGNMENT: Buyer shall not assign its rights or delegate Its dudes hemlmdea or any intern) herein without the prior written consent of Seller. and any such ueignment without such consent shell be void. IS. BILLABLE SERVICE$: Additional charges will be billed to Buyer at S 1llr's then -prevailing labor rates and Peru prices for any of the Cottoning: a) any services not specified in Seller's quotation. Seller's order acknowledgement or other documents referenced herein or therein; bl any services performed at time outer than Seller's normal service hours: c) if reasonable aim end/or equipment access is dented the Seller'. swims repreaenudve; or d) if it k necessary. due to local circumstances, m use union labor or hire an outside contractor. Seller orrice pummel will provide supervision only and the con of such union or contract labor will be charged to Buyer. la. NON SOLICITATION. Bum shall not solicit, directly or indirectly, or employ any employee of Seller during the period ony Goods and/or Software are being provided to Buyer and for a period of one ill year efts the last provision of Goods and/or Software. 20 EXPORTHMPORTI Buyer agrees that all applicable impart and export control laws, regulations. ardom and requirements. including without limitation those of the United Stotts and the European Union and the jurisdictions in which the Seller and Bayer are established or from which Golds. Parts ender Software nay be supplied, will apply to their receipt and use. In no event shall Buyer use, transfer. release. import. tarpon. Goods, Pans or Software in violation of such applicable lava. regulations. orders or requirements. 21. ®UYER SUPPLIED DATA* To the extent that Seller has been provided by or on behalf of Buyer any specifications, description of operating conditions or other data and information io emulation with the IeleCtfo1 or design of the Goads cod/or Software or the provision of services, and the actual operating conditions or other circumnaxes differ from blue provided by Buyer and relied upon by Seller. any nananties or otter provisions contained herein which are affected by such Conditions shall be null and void, - 22. grENERAL PROVISIONS: These terns and conditions supersede a)1 other communications negotiations and prim oral or written statements resading the subject miller of those terms end conditions. No change. modification reoclesioa, discharge. abandonment. or waiver of these terms and conditions shag be binding upon the Seller unless nude 0 writing and slgncd on its behalf by a duly authorized repm-senmtlse of Seller. No conditions, uaege of Trade, merle of dealing or performance. understanding or agreement purporting to modify, vary. explain, or supplement these tercet and conditions shall be binding unless hereafter made in venting and signed by the party to be bound, and no modification or additional terms shall be applicable to this agreement by Seller's receipt, acknowledgment, or acceptance of purnllale orders shipping imuuoUon forme, or other documentation containing termi al variance with or In addition to those set forth herein My such modifications or additional terms arc specifically rejected and deemed a material Aleutian hereof. If this document Will be deemed en acceptance of a prior offer by Buyer. such acceptance Is expressly conditional upon Boyers resent to any sddlllonsl or different terms set fort herein. No waiver by either party with respect to any breach or default or of any right orremedy, sad no course of dealing, shall be deemed 4w constitute a continuing waiver of any other breach Or default or of any other right at remedy, unless such waiver be expressed to writing and eigned by the party to be bound. All typographical or clerical errors pude by Seller in any quotation. acknowledgment or publication are subject to correction. • The validity. performance. and all other metiers relating to the interpretation mad effect of this sgmmea shall be governed by the Law of the suite of Ohio, without regard to its conflicts of laws principles. Buys and Seller agree that des proper venue for all actions arising in connection herewith shall be only in Ohio and the prinks agree to submit to such jurisdiction. No action regadless of form, arising out of tnenacliont retaing to this concoct. maybe brought by either party more than two 12) years after the eamae of action has accrued. The U.N. Comentlan on Coadrm'le for the International Sakes of Goods shall no apply to thi. agreement.