CONDITIONS OF QUOTATION AND SALE
Form 0-722 08/2020 Rev. H
- OTHER CONDITIONS OR CHANGES:
Any provisions or conditions of Buyer’s order which are in any way inconsistent with, or in addition to, Seller’s terms and conditions shall not be binding on Seller, and shall not be applicable, except with Seller’s written permission. No changes to or modifications or additions to the terms and conditions on the face or reverse of this form shall be binding upon Seller unless made in writing and signed by a representative of Seller duly authorized for that purpose.
All orders are subject to acceptance by a duly authorized representative of Seller.
Prices do not include Federal, State, or local taxes, now or hereafter enacted, applicable to the goods sold, which tax or taxes will be added by Seller to the sales prices and will be paid by Buyer unless Buyer provides Seller with proper tax exemption certificate.
- BUYER TRAINING:
If Services to be provided by Seller include Buyer training, Buyer shall be responsible to select from its employees those trainees who possess the requisite technical skill, experience, and language fluency appropriate for comprehension of the training and associated training materials (“Attendees”). Training curriculums and associated materials are general in nature and are intended only to supplement Attendees’ prior knowledge. Trainings do not replace Buyer’s existing practices and procedures regarding equipment operation, safety, and maintenance. The equipment discussed during trainings and in training materials may differ from or may only partially represent the equipment which Buyer or its Attendees operate, service or maintain. It is Buyer’s responsibility to ensure that Attendees shall not operate or work on or around any specific Buyer equipment without first familiarizing Attendees with all applicable safety, operating and maintenance instructions and procedures relating to Buyer’s specific equipment.
- SOFTWARE LICENSE:
Seller shall retain all ownership rights and title to software incorporated in or provided for use with the Goods. Buyer is hereby granted a non-exclusive, Non-transferrable, royalty-free, perpetual license (without the right to sublicense) to use ordered software on a single unit of product solely for the operation and maintenance of the Goods. Buyer shall not to remove, obliterate, or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on any of the software or output generated by the software. Buyer agrees not to modify, reverse engineer, disassemble, or decompile the software, or any portion thereof. The license may be terminated if Buyer discloses the software to others without Seller’s consent.
- FITTING-UP CHARGES:
Where fitting-up charges are specified, all dies and tools manufactured especially for this work will be retained by Buyer’s use, but remain Seller’s property. Seller assumes full responsibility for the upkeep and repair of tools as long as they remain unaltered and in continuous use. If Buyer does not order for a period of one (1) year goods manufactured from such dies and tools, Seller shall have the right to dispose of such dies and tools as Seller’s sole discretion.
- TITLE AND DELIVERY:
Unless otherwise specified on the face of the order, the goods shall be delivered Ex Works. Seller’s plant, and title thereto and liability for loss, damage or destruction in transit or thereafter shall pass to Buyer upon Seller’s delivery of the goods to a common carrier for shipment to Buyer.
Seller shall not be responsible for any delay or failure to perform due to causes beyond its reasonable control. These causes shall include, but shall not be restricted to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war rebellion, labor disputes, labor shortages, transportation, embargoes, or failure or delays in transportation, inability to secure raw materials or machinery for the manufacture of its devices, acts of God, acts of the Federal Government or any agency thereof, acts of any state or local government or agency thereof, and judicial action. Similar causes shall excuse Buyer for failure to take goods ordered by Buyer, other than those already in transit, or those especially fabricated and not readily salable to others.
- LIMITED WARRANTY.
- Goods: Seller represents and warrants that any Goods supplied under these standard terms and conditions will be free from defects in material and workmanship under normal use, service, and operating conditions. The warranty period for Goods will be twelve (12) months and begins on the date of shipment. This warranty extends only to the original buyer and does not apply to fuses, disposable batteries, or to any Goods that, in Seller’s opinion, have been misused, altered, neglected, contaminated, or damaged by accident or abnormal conditions of operation or handling. If, within twelve (12) months of the date Goods are shipped such Goods prove to be defective in material or workmanship under normal use, service, and operating conditions upon examination and verification by Seller, this limited warranty for Goods will apply. Seller’s warranty obligation for Goods is limited, at Seller’s option, to free of charge repair or replacement of a defective or non-conforming Good, which is returned to a Qualitrol authorized service center within the warranty period. Any replacement Goods will be warranted against defects in material or workmanship for the unexpired portion of the warranty applicable to the Goods. Warranty claims must be filed by Buyer within the time period stated above. Seller warrants Asset Production (AP) Products of its own manufacture against faulty workmanship or the use of defective materials for a period of five (5) years from the date of sale by Seller to Buyer Buyer’s remedies under this warranty are specifically limited to repair or replacement of the defective goods or services that were purchased and are exclusive of all other remedies. Seller will not be responsible for and assumes no liability for any costs or expenses associated with removal and reinstallation of goods, including any opening, uncovering or dismantling of Buyer’s property or any closing, recovering or other tasks required to return Buyer’s property to service. Should these remedies be found inadequate or to have failed of their essential purpose for any reason whatsoever, Buyer agrees that return of the amounts received by Seller for said goods or services shall prevent the remedies herein from failing of their essential purpose and shall be considered by Buyer as a fair, adequate and exclusive remedy. This warranty applicable to the Goods will be voided if, in Sellers opinion, either: (a) the Goods have not been stored, installed, maintained or operated in accordance with accepted industrial practice or any specific instruction provided by Seller; (b) the Goods have been subjected to any accident, misapplication, abuse or misuse; (c) the Goods have been exposed to the elements or environmental conditions beyond acceptable operating conditions for electrical and electronic equipment, or were permitted to become wet/damp or freeze ; (d) Buyer has used, repaired or modified the Goods after discovery of the defect without Seller’s prior written consent; (e) Buyer refused to permit Seller to examine the Goods and any pertinent operating data to determine the nature of the defect claimed; or (f) Buyer engaged, employed, or used a third party to repair or replace Seller’s defective goods without Seller’s prior written consent. Prior to the return of any goods to the Seller, the Buyer must obtain authorization and shipping instructions from the Seller. The goods must be returned with complete identification in accordance with Seller’s instructions. In no event will the Seller be responsible for goods returned without proper authorization and identification. The Buyer is responsible or all shipping costs when returning any goods. Goods, components and parts from any site which may have been exposed to radiation or hazardous chemical contamination cannot be returned to the Seller under any circumstances.
- Services: Seller represents and warrants that the Services provided under these standard terms and conditions will be performed by qualified individuals in a professional and workmanlike manner, and that the Services will conform to industry standards and practices. This warranty extends only to the original buyer. Seller shall not be liable for a breach of this warranty regarding Services unless Buyer gives written notice of the defective Services, reasonably described, to Seller within twelve (12) months from the date of service. Seller’s warranty obligation regarding Services is limited to re-performance of the Services to the extent required to correct such defect. Any re-performance of Services will be warranted against defects in material or workmanship for the unexpired portion of the warranty applicable to the Services. Warranty claims must be filed by Buyer within the time period stated above. This warranty applicable to Services will be voided if, in Seller’s opinion, either: (a) the subject of any Services has been altered, repaired or modified following commissioning/installation by Seller without the prior written agreement of the Seller; or (b) Buyer engaged, employed or used a third party to commission or install Seller’s equipment, or do corrective services, without Seller’s prior written consent. This warranty applicable to Services only applies to the original customer and original site where the work was performed and cannot be assigned to a different site or location, without the express written consent of the Seller. Notwithstanding this warranty will not apply to mobilization and logistics associated with the delivery of warranty at a 3rd party site.
- Monitoring Devices: Seller’s monitoring devices are intended to enhance the availability and reliability of Buyer’s electrical equipment by enabling Buyer to more readily diagnose and assess the condition of Buyer’s equipment. While such monitoring devices, if used as intended, perform scheduled measurements, record data and plot measurement trends that characterize the general condition of the equipment, SELLER, IN ADDITION TO SUCH OTHER LIMITATIONS AS ARE CONTAINED IN THESE STANDARD TERMS AND CONDITIONS, DOES NOT WARRANT, GUARANTEE OR REPRESENT THAT THE USE OF SUCH MONITORING DEVICES WILL PREVENT FAILURE OR DETECT ALL HARMFUL CONDITIONS IN BUYER’S EQUIPMENT AND THE BUYER ACKNOWLEDGES THE SAME. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT THEMONITORING DEVICES WILL ONLY BE USED ON BUYER’S EQUIPMENT MATCHING THE SELLER DEFINED APPLICATION AND/OR WRITTEN RECOMMENDATIONS. PURCHASE OF ANY PORTABLE OR DEDICATED MONITORING DEVICE IS FOR USE ONLY IN CONNECTION WITH SELLER’S SENSORS MOUNTED ON EQUIPMENT LOCATED AT SITES OWNED OR LEASED BY BUYER, UNLESS OTHERWISE AGREED TO BY SELLER IN WRITING.
- Software: Goods may contain or operate through the use of computer software. SELLER, IN ADDITION TO SUCH OTHER LIMITATIONS AS ARE CONTAINED IN THESE STANDARD TERMS AND CONDITIONS, DOES NOT WARRANT ANY SOFTWARE LICENSED BY IT WILL OPERATE OR BE COMPATABLE WITH ANY GOODS OR PLATFORMS OTHER THAN THOSE THAT ARE SOLD OR SPECIFIED BY SELLER. EXCEPT AS MAY BE EXPRESSLY WARRANTED IN WRITING BY SELLER, SELLER DOES NOT WARRANT THAT SOFTWARE WILL OPERATE OR INTERFACE WITH PLANT OR FACILITY COMPUTER SYSTEMS. SELLER SHALL NOT BE RESPONSIBLE FOR DAMAGE TO BUYER’S COMPUTER SYSTEMS, INCLUDING ANY DOWN-TIME OR DEGRADATION IN PERFORMANCE, UNLESS RESPONSIBILITY FOR SUCH DAMAGES IS EXPRESSLY ASSUMED BY THE SELLER IN WRITING. SELLER DOES NOT WARRANT THAT SOFTWARE IS ERROR OR BUG-FREE OR WILL OPERATE WITHOUT INTERRUPTION. SELLER SHALL, WITHOUT COST, MAKE AVAILABLE TO BUYER THOSE PATCHES AND SOFTWARE UPGRADES DEVELOPED BY SELLER FOR A PERIOD OF TWELVE (12) MONTHS FOLLOWING SOFTWARE DELIVERY.
- All warranty claims asserted by Buyer must be in writing to Seller. Seller may request that the Buyer submit sufficient information to reproduce a Good defect. Seller may charge Buyer a reasonable fee for a visit to the Buyer’s site made in connection with an asserted warranty claim. Under no circumstances will Seller be liable for any costs and expenses incurred by Buyer (through a third party or otherwise), in the event Buyer does not first comply with its obligations herein giving Seller the opportunity to verify any claim.
- THIS WARRANTY IS BUYER’S SOLE AND EXCLUSIVE REMEDY AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. SELLER, ITS AFFILIATES AND ITS VENDORS DISCLAIM ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, SATISFACTORY QUALITY, TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR THEIR EQUIVALENTS IN ANY JURISDICTION. SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSSES, INCLUDING LOSS OF DATA, ARISING FROM ANY CAUSE OR THEORY.
- NON-WAVER OF DEFAULT:
Each shipment made under any order shall be treated as a separate transaction, but in the event of any default by Buyer, Seller may decline to make further shipments without in any way affecting its right under such order. If, despite any default by Buyer, Seller elects to continue to make further shipments, its action shall not constitute a waiver of any default by Buyer or in any way affect Seller’s legal remedies for any such default.
- FINANCIAL CONDITION:
Seller may cancel this order if, in Seller’s sole judgement, Buyer’s financial condition does not justify the terms of payment specified, in which case, Seller may cancel any unfilled orders unless Buyer shall, upon written notice, immediately pay for all goods delivered or shall pay in advance for all goods ordered but not delivered, or both, at Seller’s option.
Any contract made in respect to the sale of goods identified on the face hereof shall be binding upon and ensure to the benefit of the successors and assigns of the entire business and good will of either Seller or Buyer, or that part of the business of either used in the performance of such contract, but shall not be otherwise assignable.
- COMPLIANCE: WITH FEDERAL, STATE AND LOCAL LAWS
In the performance of this order, or the order resulting from this quotation, Seller has complied with and will comply with all applicable Federal, State and local laws and ordinances and all lawful orders, rules and regulations thereunder, including but not by way of limitation, the applicable provisions of the Fair Labor Standards Act of 1938 as amended (29 U.S.C Sec. 201-219), the Walsh-Healy Public Contract Act and amended (41 U.S.C. Sec. 35-45), and the Eight Hour Law of 1912 as amended (40 U.S.C. Sec. 324-326). Seller agrees that this statement may be considered as the written assurance contemplated by the Fair Labor Standards Act of 1938 as amended that all items delivered hereunder were produced in compliance with applicable provisions of such Act.
- PAYMENT TERMS:
Net 30 days from date of invoice, pending credit approval INTEREST CHARGES: On accounts not paid within 30 days from the end of the month in which invoices are rendered, interest may be charged at the per annum rate of 1% over the New York Bank’s prime rate from time to time in effect, beginning on the first of the month following date on which payment is due.