Standard Terms and Conditions
These terms and conditions are applicable to all orders regardless of order processing procedures. In all cases, the term "Pro-face" shall include Pro-face, Pro-face America, Xycom Automation and its Parent and Parent's affiliates. This contract of sale shall be governed by, subject to and construed according to the laws of the State of Michigan without giving effect to conflict of laws provisions. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to these terms and conditions. Any dispute, claim or controversy arising out of, or related to, these terms and conditions shall have exclusive venue in the state and/or federal courts located in State of Michigan. Buyer hereby irrevocably consents to the personal jurisdiction of those courts for such purposes. If any of the provisions or portions of these terms and conditions are invalid under any applicable statute or rule of law, they are to that extent to be deemed omitted. Buyer acknowledges that he has read and understands these terms and conditions and agrees to be bound by them and, further, agrees that it is the complete and exclusive statement of the agreement between the parties and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter hereof. No waiver or breach of any provision of this order shall constitute a waiver or any other breach of such provision.
The terms and conditions set forth herein shall be deemed accepted by Buyer as expressly set forth if Buyer does not give written notification to Pro-face within ten (10) days of its receipt hereof advising Pro-face of any objections hereto or if Buyer accepts, or pays for, a portion or all of the goods delivered hereunder. Any provisions or conditions of Buyer's order which are in any way inconsistent with or in addition to these terms and conditions shall not be binding upon Pro-face and shall not be applicable, notwithstanding Pro-face's acceptance of Buyer's purchase order and/or delivery of products or services. If Pro-face receives from Buyer a purchase order that is in any way inconsistent with or in addition to these terms and conditions, these terms and conditions shall be deemed a counteroffer to Buyer's purchase order, which will be deemed accepted by Buyer if Buyer does not give written notification to Pro-face within ten (10) days after submitting its purchase order advising Pro-face of any objections hereto or if Buyer accepts, or pays for, a portion or all of the goods delivered hereunder. No addition to or modification of any of the provisions in this agreement shall be binding upon Pro-face unless made in writing by a duly authorized agent or Pro-face. Clerical and stenographic efforts are subject to correction.
In the event of Buyer's default hereunder for non-payment or otherwise, Buyer agrees to assume and pay any and all costs and expenses incurred by Pro-face in enforcing its rights under this contract, including but not limited to, reasonable attorneys' fees and court costs.
The retail list prices that pertain to orders for Pro-face or Xycom products placed by Buyer under this agreement will be the respective retail list prices in effect when the particular order is placed. PRICE INCREASES ARE SUBJECT TO CHANGE AT ANY TIME BY PRO-FACE UPON THIRTY (30) DAYS WRITTEN NOTICE. PRICE DECREASES ARE SUBJECT TO CHANGE AT ANY TIME BY PRO-FACE WITHOUT NOTICE AND EFFECTIVE ON THE PUBLISHED DATE. Any other prices and terms quoted by Pro-face are firm up to thirty (30) days from the date of quotation and will be quoted in US dollars and are subject to adjustment due to specifications, quantities, shipping arrangements or other terms or conditions not included in the price quote. All verbal quotations are not valid and binding unless confirmed in writing by Pro-face. Prices are exclusive of and will be increased by all applicable federal, state, municipal or other government excise, sales, use, occupational or like tax, tariffs, customs, duties and import fees, applicable at the time of sales or thereafter enacted, all of which Buyer shall be responsible for paying. Pro-face has the legal obligation to collect tax or taxes added by Pro-face to the sales price, which will be paid by Buyer unless Buyer at the time of order and at Buyer's expense provides Pro-face with a proper tax exempt certificate. Pro-face, at its discretion, reserves the right to accept or reject any such claims.
2. Terms and Method of Payment
Where Pro-face has extended credit to Buyer, terms of payment shall be net thirty (30) days from the date of the invoice. The amount of credit or terms of payment may be changed or credit withdrawn by Pro-face at any time. On any order on which credit is not extended by Pro-face, shipment or delivery shall be made at Pro-face's election, cash with order (in whole or part), COD, or Sight Draft attached to Bill of Lading or other shipping documents with all costs of collection for the account of Buyer. Until Pro-face receives payment in full for the goods, Pro-face shall retain a purchase money security interest in the goods and Buyer agrees to take all reasonable actions to perfect Pro-face's security interest in the goods shipped.
If goods are delivered in installments, Buyer shall pay for each installment in accordance with the terms thereof. Payment shall be made for the goods without regard to whether Buyer has made or may make inspection of the goods. If Buyer delays shipments, payments are due from the date when Pro-face is prepared to make shipments. If Buyer delays manufacture, payment shall be the percent of completion of the goods at the scheduled shipping date multiplied by the contract price. Buyer shall be assessed a 1 1/2% per month late charge on any amounts due and owing over 30 days or the maximum rate allowed under applicable law, whichever is less.
3. Acceptance, Title, Delivery
Purchase orders for all Pro-face products must be received by Pro-face with sufficient lead time so that Pro-face can schedule normal delivery. Delivery will not be made until a binding purchase order is received from Buyer at Pro-face in Ann Arbor, Michigan.
Pro-face shall deliver to Buyer, and Buyer shall accept and pay for, all goods and services ordered by Buyer pursuant to an order which has been accepted by Pro-face. All orders are subject to acceptance by Pro-face either in writing or by shipping the goods. Pro-face may accept any order in full or in part, and Pro-face's shipment of less than all goods ordered shall constitute acceptance only as to those goods shipped.
The goods shall be delivered F.O.B. Pro-face, at which point title and liability for loss or damage shall pass to Buyer, provided that such loss or damage shall not relieve Buyer from any obligation hereunder. Shipping dates are approximate only. Pro-face shall have the right to make shipments in separate lots and each shipment shall constitute a distinct and separate contract. In the absence of specific instruction, Pro-face will select the carrier and ship pre-paid but shall not be deemed to assume any liability connected with the shipment nor shall the carrier be construed to be the agent of Pro-face. Special handling, insurance or other above normal costs at or beyond the port of embarkation or point of entry will be charged to the Buyer. Special packaging for marine shipping or required transport across foreign territory will be billed to the Buyer.
4. Contingencies, Equipment, Inspection
Pro-face will not be liable for any damages caused by delays in shipment. Pro-face's performance of any order shall be excused for the occurrence of any contingency beyond its control or the control of any of its subcontractors or suppliers including, by way of illustration, war (whether an actual declaration thereof is made or not), sabotage, insurrection, riot or other act of civil disobedience, epidemic, quarantine restrictions, act of public enemy, transportation embargoes or failure or delays in transportation, acts of any Federal, state or local government or any agency of subdivision thereof, judicial action, labor disputes, labor shortages, accident, fire, storm, earthquake, explosion, flood, draught or other act of God, short or reduced supply of fuel or raw materials or machinery or other excess cost thereof, or technical failures where Pro-face has exercised ordinary care in the prevention thereof. If any contingency occurs, Pro-face may at its election, allocate production and deliveries among Pro-face's customers. Similar causes shall excuse Buyer for failure to take goods ordered by Buyer, other than those already in transit or specially fabricated and not readily salable to other buyers. Materials, tools, dies and other equipment furnished Pro-face by Buyer is done so at Buyers risk and expense. Pro-face may modify the specifications of goods designed by Pro-face providing that the modifications will not materially affect the performance of the goods.
Buyer shall promptly inspect the goods upon receipt and either accept or reject them for failure to conform to applicable specifications. Buyer shall give Pro-face prompt written notice of rejection of nonconforming goods. Buyer shall be deemed to have accepted the goods if Buyer fails to give written notice of rejection within thirty (30) days of delivery of the goods.
(a) Standard Products Warranty and Adjustment. Pro-face warrants that the article to be delivered under this order will be free from defects in materials and workmanship under normal use and service during its full warranty period. For the specific warranty period, refer to our website at www.profaceamerica.com. All warranties are contingent upon proper use in the application for which the products were intended. The warranty does not cover products which have been modified without Pro-face's approval or which have been subject to testing for other than specified electrical characteristics or to operating and/or environmental conditions in excess of the maximum values established. In addition, items that have been the subject of mishandling, misuse, neglect, improper testing, repair, alteration, damage, assembly or processing that alters physical or electrical properties are not covered.
(b) Developmental Product Warranty. Developmental products of Pro-face are warranted to be free from defects in materials and workmanship and to meet the applicable preliminary specifications only at the time of receipt by Buyer and for no longer period of time.
The aforementioned provisions do not extend the original warranty period of any article which has been repaired or replaced by Pro-face. All freight charges for equipment under warranty, and for repair or replacement of a defective product, will be borne by Buyer.
6. Warranty Application to Products Sold But Not Manufactured by Pro-face
All Pro-face standard products are qualified to function within published specifications. Pro-face makes no guarantee as to the performance or reliability of any product substituted for or used in conjunction with any Pro-face component or system. Products sold but not qualified by Pro-face are sold under such warranty as assigned to it by the maker and as is enforceable by Pro-face. The warranty is not guaranteed by Pro-face. Any non-standard product returned for service shall be excluded from the normal repair period. All costs incurred in the repair or replacement of non-Pro-face product will be paid by the customer.
7. Limitation of Warranties
EXCEPT AND ONLY TO THE EXTENT EXPLICITLY PROVIDED UNDER SECTIONS 5 AND 6, THE GOODS AND ANY COMPONENTS THEREOF PROVIDED BY PRO-FACE OR ITS SUPPLIERS OR LICENSORS ARE PROVIDED ON A "AS IS" BASIS WTHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OUT OF A COURSE OF DEALING OR USAGE, TRADE OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OR MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE OR NONINFRINGEMENT. PRO-FACE NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR PRO-FACE ANY OTHER LIABILITIES IN CONNECTION WITH THE SALE OF SAID ARTICLE.
Pro-face, or its supplier or licensor, if applicable, retains title to all software, computer programs and other software furnished with any goods. Buyer will use such software only in conjunction with the use or operation of such goods and only in accordance with applicable instructions and manuals furnished by Pro-face, or its suppliers or licensors, if applicable. Further, Buyer will not reverse engineer, decompile or attempt to discover or recreate any source code to any such software.
9. Intellectual Property Rights
The goods involve valuable patent, copyright, trademark, trade secret and other intellectual property rights of Pro-face. Pro-face reserves all such rights. No title to or ownership of any intellectual property rights related to any goods is transferred to Buyer pursuant to these terms and conditions. Buyer will not attempt to reverse engineer any goods or any component thereof or to otherwise misappropriate, circumvent or violate any of Pro-face's intellectual property rights.
10. Buyer's Obligations
(a) The following terms used in this Section shall have the following meanings:
(i) "Prohibited Driver" means the following communication protocols and/or drivers: GE EGD, GE CCM, GE CCM-2, GE Genius, GE SNP, GE SNP-X, GE SRTP and GE TCP/IP and successor and replacement protocols and/or drivers, each of which are sold by GEF.
(ii) "GEF" means GE Fanuc Automation North America, Inc. and its subsidiaries
(iii) "GEF Connectivity" means the ability to connect, interface, load, use or communicate with or through any Prohibited Driver.
(iv) "QD Software" means the Quick Designer software and associated drivers and related documentation provided therewith.
(v) "Operator Interface Products" means (i) all graphic display devices; and (ii) programmable display units incorporating Windows CE sold by Pro-face to Buyer, including, in each case, spare parts for any of the foregoing (except when included as part of repair or service activity) and components therefore and associated accessories and communication modules such as cables, backlights, overlays, flash cards, Simmcards, profibus, DeviceNet and Ethernet.
(b) Buyer agrees to communicate the restrictions contained herein to all of its customers; and use reasonable commercial efforts to ensure that its customers adhere to the restrictions contained herein
(c) Buyer acknowledges that all Operator Interface Products and/or QD Software sold to Buyer hereunder shall not provide GEF Connectivity.
(d) Buyer shall not modify or alter any Operator Interface Product, or aid any other third party in modifying or altering any Operator Interface Product, to provide GEF Connectivity.
(e) Buyer shall not modify or alter the QD Software or create any derivative works based thereon.
(f) Buyer shall not aid or assist any third party to, create, develop, market, distribute, license or sell, any software driver for any QD Software that contains GEF Connectivity.
(g) Buyer shall not, nor shall it assist any third party to, reverse engineer, disassemble, decompose, decompile, modify, enhance, create derivative works, amend or similarly manipulate all or any portion of the compact disks on which the QD Software is sold.
(h) Notwithstanding anything contained herein to the contrary, Pro-face may terminate this order and all other orders between the parties immediately, with or without notice, if Buyer violates any of the provisions of this Section 10.
(i)To the extent that Buyer violates and/or breaches any of the provisions of this Section 10 of this Agreement, Buyer agrees damages for such breach will be difficult to ascertain and therefore, Buyer shall be liable to Pro-face for an additional fee equal to 50% of the purchase price of the product sold in violation of this Agreement plus reasonable costs of collection (including reasonable attorney's fees). Buyer further agrees that Pro-face may assign any claim under this Section 10 to any third party beneficiary, who shall be able to directly enforce such provisions and sue Buyer for any damages caused by Buyer's violation of such provisions.
11. Patent Indemnity
Pro-face shall defend any suit or proceeding brought against Buyer by a third party insofar as such suit or proceeding is based on a claim that any goods manufactured and supplied by Pro-face to Buyer constitutes direct infringement of any duly assigned United States Patent, and Pro-face shall pay all damages and costs finally awarded therein against Buyer, provided (i) Pro-face is promptly informed and furnished with a copy of each communication, notice or other action relating to the alleged infringement, (ii) Buyer allows Pro-face to assume control of the defense and settlement of the claim, (iii) Buyer assists and cooperates with Pro-face in connection with the defense and settlement of the claim, (iv) Buyer complies with any court order or settlement made in connection with the claim (e.g., as to future use of any infringing good), and (v) Buyer does not settle the claim without Pro-face's prior written consent. At Pro-face's option, Pro-face may procure for Buyer the right to continue using the goods, replace the same with noninfringing goods, or modify the same so that their use becomes noninfringing. Pro-face shall have no obligation or liability hereunder if the infringement results from compliance with Buyer's specifications or from a combination with, an addition to, or a modification of the goods after delivery by Pro-face, or from use of the goods, or any part thereof, in the practice of a process. Pro-face's obligations above enumerated shall not apply for any infringement occurring after Buyer has received notice alleging the infringement unless Pro-face has given Buyer written permission therefore.
If infringement is alleged prior to completion of delivery of the goods, Pro-face may decline to make further shipments without being in breach of this contract.
The foregoing states the sole and exclusive liability of Pro-face for patent infringement and is in lieu of all warranties, expressed or implied, in regard thereto.
12. Product Limitations and Buyer's Specifications and Indemnification
The products sold by Pro-face hereunder are not intended for use in any nuclear, chemical or weapons production facility or activity, aircraft control devices, aerospace equipment, central trunk data transmission (communication) devices or medical life support equipment or any other activity where failure of the products could lead directly to death, personal injury or severe physical or environmental damage. If so used, Pro-face and its Affiliates disclaim all liability for any damage arising as a result of the hazardous nature of the business in question, including nuclear, chemical or environmental damage, injury or contamination, and Buyer shall indemnify, hold harmless and defend Pro-face, its Affiliates and their officers, directors, employees and agents against all such liability, whether based on contract, warranty, tort (including negligence), or any other legal theory, regardless of whether Pro-face had knowledge of the possibility of such damage.
Where the goods are supplied according to Buyer's specifications, Buyer shall defend any suit or proceeding brought against Pro-face, and its affiliates, officers, directors, shareholders, managers, agents employees, suppliers, subcontractors, successors and assigns, by a third party insofar as such suit or proceeding is based on a claim that such goods infringe any patent, copyright, trademark, trade secret, design or other intellectual property right or proprietary or similar right, and Buyer shall pay all damages and costs finally awarded therein against Pro-face and all costs incurred by Pro-face to defend any such action, including, without limitation, all attorneys fees and court costs.
13. Non-Waiver of Default
Each shipment made under any order shall be treated as a separate transaction, but in the event of any default by Buyer, Pro-face may decline to make further shipments without in any way affecting Pro-face's rights under such order. If, despite any fault by Buyer, Pro-face elects to continue to make shipments, Pro-face's action shall not constitute a waiver of any default by Buyer or in any way affect Pro-face's legal remedies for any such default.
14. Remedies and Damages
If the goods furnished by Pro-face fail to conform to this contract, including but not limited to Pro-face's warranty, Pro-face's sole and exclusive liability to Buyer shall be, at Pro-face's option, to repair, replace or credit Buyer's account for any such goods which are returned by Buyer to Pro-face during the applicable warranty period set forth above, provided that (a) Pro-face is promptly notified in writing upon discovery by Buyer that such goods failed to conform to this contract with a detailed explanation of any alleged deficiencies; (b) such goods are returned to Pro-face, F.O.B. Pro-face's plant; and (c) Pro-face's examination for such goods shall disclose to Pro-face's satisfaction that such alleged deficiencies actually existed and were not caused by accident, misuse, neglect, alteration, improper installation, repair, improper testing or any other cause as detailed in Article 5 hereof. If such goods fail to conform to this contract, Pro-face shall have a reasonable time to make such repairs or replace such goods.
15. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PRO-FACE, ITS SUPPLIERS OR LICENSORS, BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, RELIANCE, PUNITIVE OR OTHER DAMAGES OR EXPENSES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOSS OF PROFITS OR REVENUE, LOSS BUSINESS OR BUSINESS OPPORTUNITY, LOST DATA, LOSS GOODWILL, LOSS FROM WORK STOPPAGE, COSTS OF COVER, ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF PRO-FACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. PRO-FACE'S LIABILITY TO BUYER IN ALL CIRCUMSTANCES SHALL BE LIMITED TO THE PURCHASE PRICE PAID BY THE BUYER TO PRO-FACE FOR THAT PORTION OF PRODUCTS THAT ARE SUBJECT TO THE MATTER OF ANY DISPUTE. Pro-face is not responsible for misuse or misapplication of its products, intentional or otherwise. Improper application, installation, failure to provide for safety devices for protective measures, or operation above rated capacity are all beyond the control and responsibility of Pro-face.
16. Cancellation and Termination
(a) No cancellation by Buyer shall be effective unless and until Pro-face shall have failed to correct such alleged default within a reasonable period of time after receipt by Pro-face of a written notice specifying such default (as noted above). Pro-face shall not be liable for any delay in or failure of performance hereunder due to any cause beyond its control. As stated in Article 4 hereof, the delivery schedule hereof shall be considered extended by a period of time equal to the time lost because of any delay which is excusable under said clause. In the event that Pro-face is unable wholly or partially to perform because of any cause beyond its control, Pro-face may terminate this order without further liability to Pro-face or Buyer. Pro-face may wholly or partly terminate any sale of goods hereunder if Buyer makes any assignment or trust for the benefit of creditors, becomes insolvent or otherwise is unable to pay its debts as they become due, or if proceedings are commenced by or against Buyer alleging bankruptcy, or insolvency, or involving the appointment of a receiver.
(b) Buyer may terminate this order only upon payment of all Pro-face's costs incurred for and reasonably allocated to the terminated portion of the work in accordance with generally accepted accounting principles and practices, plus a reasonable profit on such costs.
(c) Unless otherwise agreed and confirmed in writing by Pro-face, items scheduled for shipment are not subject to revision, reschedule or termination within seven (7) days prior to shipment.
Any contract made hereunder shall be binding upon and-to-the-benefit of the successors and assign of the entire business and goodwill of either Pro-face or Buyer or of that part of the business used in the performance of such contract, but shall not be otherwise assignable (by operation of law or otherwise) without the prior written consent of the nonassigning party.
19. Export Controls
Any product or technical data supplied by Pro-face under these Terms and Conditions are subject to United States Export Administration Act and regulations thereunder, which includes the licensing of certain products. It is the responsibility of Buyer and any exporter contracted/used by Buyer to comply with the Act and Regulations. Buyer certifies that it will not export or re-export the product and/or technical data furnished hereunder, unless it fully complies with all laws and regulations of the United States, including but not limited to the United States Export Administration Act and Regulations.
20. Government Contracts and Clauses
No government contract regulations or clauses shall apply to any product or service provided by or rendered to Buyer, unless specifically agreed in writing by Pro-face's executive management.
21. Confidential Information
All software and hardware, drawings, diagrams, manuals, specifications and other material furnished by Pro-face relating to the use and service of articles furnished hereunder have been developed at great expense and are considered to be trade secrets of and proprietary to Pro-face. Buyer may not reproduce in any way such software, hardware, diagrams, drawings, manuals, specifications and other materials. All documents and/or materials aforementioned relative to the articles, supplied directly by Pro-face (except information as may be established to already be in the public domain) shall be received in confidence and Buyer will take every reasonable precaution to protect the confidentiality of such information.