Terms and Conditions of Sale
Terms and Conditions of Sale
These terms and conditions, the related quotation or acknowledgment, and all documents incorporated by reference therein, bind Equipment & Controls, Inc. (hereinafter Seller) and the buyer (hereinafter Buyer) and constitute the entire agreement (Agreement) between Buyer and Seller for the provision of technical services (Services) and consulting services (Consulting Services) and/or the sale of goods (Goods).
1. PRICES. Unless otherwise specified by Seller, Seller’s price for the Goods and/or Services shall remain in effect for 30 days after the date of Seller’s quotation or acceptance of the order for the Goods/Services, whichever is delivered first, provided an unconditional, complete authorization for the immediate manufacture and/or shipment of the Goods and/or provision of Services pursuant to Seller’s standard order processing procedures is received and accepted by Seller within such time period. If such authorization is not received by Seller within such 30-day period, Seller shall have the right to change the price for the Goods/Services to Seller’s price in effect at the time the order is accepted. Prices for Goods do not cover storing, installing, starting up or maintaining Goods unless expressly stated in Seller’s quotation. Notwithstanding the foregoing, the price for Goods/Services sold by Seller, but manufactured by others, shall be Seller’s price in effect at the time of shipment to Buyer.
2. DELIVERY, ORDER ACCEPTANCE AND DOCUMENTATION. All shipping dates are approximate and are conditioned upon Seller’s prompt receipt of all necessary information from Buyer to properly process the order. Notwithstanding any provisions in this Agreement, and regardless of how price was quoted (whether FOB, FAS, CIF or otherwise), legal title to the Goods and risk of loss thereto shall transfer to Buyer as follows: for sales in which the end destination of the Goods is within the United States, upon delivery to the freight carrier at the shipping point; for sales in which the and destination of the Goods is outside of the United States, immediately after the Goods have passed beyond the territorial limits of the United States. Seller shall provide Buyer with that data/documentation which is specifically identified in the quotation. If additional copies of data/documentation or non-standard data/documentation are to be provided by Seller, they shall be provided at Seller’s prices then in effect. Data/documentation marked as “confidential” or “proprietary” may not be reproduced or used for any purpose other than the purpose for which it was provided and may not be disclosed to third parties without the prior written permission of Seller.
3. EXCUSE OF PERFORMANCE. Seller shall not be liable for delays in performance or for non-performance due to failure or interruption of computer or telecommunication systems, unavailability of materials or components, , goods manufactured by others, war (whether declared or not), armed conflict or the serious threat of the same (including but not limited to hostile attack, blockade, military embargo), hostilities, invasion, act of a foreign enemy, extensive military mobilization; civil war, riot, rebellion, revolution, military or usurped power, insurrection, civil commotion or disorder, mob violence, act of civil disobedience; act of terrorism, sabotage or piracy; plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions; act of authority whether lawful or unlawful, compliance with any law or governmental order, rule, regulation or direction, curfew restriction, expropriation, compulsory acquisition, seizure of works, requisition, nationalization; act of God or natural disaster such as but not limited to violent storm, cyclone, typhoon, hurricane, tornado, blizzard, earthquake, volcanic activity, landslide, tidal wave, tsunami, flood, damage or destruction by lightning, drought; explosion, fire, destruction of machines, equipment, factories and of any kind of installation, prolonged break-down of transport, telecommunication or electric current, general labor disturbance such as but not limited to boycott, strike and lock-out, go-slow, occupation of factories and premises; shortage or inability to obtain critical material or supplies to the extent not subject to the reasonable control of the subject Party, or other unforeseen circumstances or causes beyond Seller’s reasonable control. In the event of any such delay, the time for performance or delivery shall be extended by Seller by a period of time reasonably necessary to overcome the effect of the delay.
4. CHANGES, TERMINATION AND SUSPENSION. Buyer may terminate or suspend its order for any or all of the Goods/Services covered by the Agreement only upon Seller’s written consent or pursuant to Seller’s applicable policy or practices covering such termination or suspension. Any changes affecting the Goods or Services must be accepted by Seller, and resulting adjustment to price and/or schedule shall be mutually agreed in writing.
5. LIMITED WARRANTY. Subject to the limitations contained in Section 6 hereof, Seller warrants that any licensed firmware embodied in the Goods will execute the programming instructions provided by Seller, and that the Goods manufactured by Seller will be free from defects in materials or workmanship under normal use and care, and the Services will be performed by trained personnel using proper equipment and instrumentation for the particular Services provided. The foregoing warranties will apply until the expiration of the applicable warranty period. Except as specified below, Goods are warranted for 12 months from the date of initial installation or 18 months from the date of shipment by Seller, whichever period expires first. Except for CSI-brand Models 4500 and 9200 Series products, which shall be warranted for the period specified above, CSI-brand products are warranted for twelve (12) months from the date of purchase. Consumables and Services (except as specified below) are warranted for a period of 90 days from the date of shipment or completion of the Services. CSI-brand Services and PlantWeb Services are warranted for a period of twelve (12) months from the date of provision of the Services. Goods purchased by Seller from a third party for resale (‘Resale Products”) shall carry only the warranty extended by the manufacturer. Buyer agrees that Seller shall have no liability for Resale Products beyond making a reasonable commercial effort to arrange for procurement and shipping of the Resale Products. If Buyer discovers any warranty defects and notifies Seller thereof in writing during the applicable warranty period, Seller shall, at its option, correct any errors that are found by Seller in the Goods or Services or repair or replace F.O.B. point of manufacture that portion of any Goods found by Seller to be defective, or refund the purchase price of the defective portion of the Goods/Services. All replacements or repairs necessitated by inadequate maintenance, normal wear and usage, unsuitable power sources or environmental conditions, accident, misuse, improper installation, modification, repair, use of unauthorized replacement parts, storage or handling, or any other cause not the fault of Seller are not covered by this limited warranty, and shall be at Buyer’s expense. Seller shall not be obligated to pay any costs or charges incurred by Buyer or any other party except as may be agreed upon in writing in advance by Seller. All costs of dismantling, reinstallation and freight and the time and expenses of Seller’s personnel and representatives for site travel and diagnosis under this warranty clause shall be borne by Buyer unless accepted in writing by Seller. Goods repaired and parts replaced by Seller during the warranty period shall be in warranty for the remainder of the original warranty period or 90 days, whichever is longer. This limited warranty is the only warranty made by Seller and can be amended only in a writing signed by Seller. THE WARRANTIES AND REMEDIES SET FORTH IN THIS SECTION ARE EXCLUSIVE. THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS to MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR ANY OTHER MATTER WITH RESPECT TO ANY OF THE GOODS OR SERVICES. Warranty – Consulting Services. Seller warrants that the Consulting Services shall be performed in accordance with the terms of the Agreement, in a professional manner and in accordance with sound, generally accepted engineering and professional practices in effect at the time the Consulting Service is performed. If within ninety (90) days after performance of a Consulting Service, such Consulting Service is found to be deficient to the standards set forth above, Buyer shall notify Seller in writing of the deficiency and Seller shall thereupon re-perform such Consulting Services, which are shown to be deficient at no cost to Buyer. The warranty shall not apply to defects resulting from (i) software modifications performed by the Buyer, (ii) Buyer specifications, or (iii) Buyer’s directions. THE WARRANTIES AND REMEDIES SET IN THIS SECTION ARE EXCLUSIVE. THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS to MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR ANY OTHER MATTER WITH RESPECT TO ANY OF THE GOODS OR SERVICES.
6. LIMITATION OF REMEDY AND LIABILITIES.NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR EACH PURCHASE ORDER OR PROVIDED FOR UNDER ANY APPLICABLE LAW, SELLER SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE. THE REMEDIES OF BUYER SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE. IN NO EVENT, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR EACH PURCHASE ORDER OR PROVIDED FOR UNDER ANY APPLICABLE LAW, AND REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT (INCLUDING BREACH OF WARRANTY), INFRINGEMENT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE), SHALL SELLER’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXCEED THE PRICE TO BUYER OF THE SPECIFIC GOODS MANUFACTURED OR SERVICES PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. BUYER AGREES THAT IN NO EVENT SHALL SELLER’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS INCLUDE INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLIED, INDIRECT, SPECIAL OR PUNITIVE DAMAGES. THE TERM “CONSEQUENTIAL DAMAGES” SHALL INCLUDE, BUT NOT BE LIMITED TO, LOSS OF ANTICIPATED PROFITS, REVENUE OR USE, AND COSTS INCURRED INCLUDING, WITHOUT LIMITATION, FOR CAPITAL, FUEL AND POWER, AND CLAIMS OF BUYER AND BUYER’S CUSTOMERS. THIS SECTION 6 SHALL SURVIVE TERMINATION OR CANCELLATION OF THIS AGREEMENT.
7. PATENTS. Subject to the limitations contained in Section 6, Seller shall defend any suits brought against Buyer based on a claim that use of the Goods manufactured by Seller constitutes an infringement of a valid United States patent, and shall pay any damages awarded therein against Buyer, provided that Buyer promptly notifies Seller in writing of the filing of such suit or the threat thereof, permits Seller to control completely the defense or compromise of such claim of infringement, and provides all reasonable assistance and cooperation requested by Seller for the defense of such suit. In the event that only the Goods manufactured by Seller are held to be infringing in such suit and their use is enjoined, Seller shall, at its sole option and expense, provide a commercially reasonable alternative, including, but not limited to, procuring for Buyer the right to continue using the Goods, replacing them with non-infringing products or modifying them so they become non-infringing. Buyer agrees that Seller shall not be liable for infringement, and that Buyer shall fully indemnify Seller therefore, if infringement is based upon the use of Goods in a manner for which the Goods were not designed by the Seller or if the Goods were modified by or for the Buyer in a manner to cause them to become infringing.
8. TAXES. Any tax or governmental charge payable by the Seller because of the manufacture, sale or delivery of the Goods or provision of Services may, at Seller’s option, be added to the price herein specified. The foregoing shall not apply to taxes based upon Seller’s net income. Prices do not include any sales, use, excise, value added or similar taxes. Taxes shall be the responsibility of Buyer and Seller shall include them on all invoices, absent the receipt of an appropriate exemption certificate from Buyer.
9. TERMS OF PAYMENT. Unless otherwise agreed by Seller, and subject to the approval of Seller’s Credit Department, payment terms are net 30 days from date of Seller’s invoice in U.S. currency, except for applicable milestone payments or export shipments for which Seller may require other arrangements. Seller reserves the right to modify payment terms (including by requiring payment in advance of delivery) at any time if Seller has reasonable grounds for insecurity concerning timely payment. Freight charges may include shipping and handling charges, and Buyer shall pay all such charges. If any payment owed to Seller hereunder is not paid when due, it shall bear interest, at a rate equal to the lesser of 1.5% per month or the maximum rate permitted by law, from the date on which it is due until it is received. Seller shall have the right, among other remedies, either to terminate this Agreement or to suspend further deliveries under this and/or other agreements with Buyer in the event Buyer fails to make any payment hereunder when due. Buyer shall be liable for all expenses attendant to collection of past due amounts, including attorney’s fees.
10. SOFTWARE AND FIRMWARE. Notwithstanding any other provision herein, Seller (or the applicable owner) shall retain all rights of ownership and title in its firmware and software, including all copyrights. Buyer is hereby granted a nonexclusive, royalty free license to use firmware and software incorporated into the Goods only in conjunction with such Goods. Buyer’s use of certain firmware (as specified by Seller) and software shall be governed by the terms of any applicable license.
11. BUYER SUPPLIED DATA. To the extent that Seller has relied upon any data or information supplied by Buyer to Seller (“Data”) in the selection or design of the Goods and/or provision of the Services or the preparation of Seller’s quotation, and such Data is inadequate or inaccurate, any related warranties or other provisions contained herein shall be null and void.
12. EXPORT/IMPORT. Buyer agrees to comply with all applicable import and export control laws, regulations, orders and requirements, including, without limitation, those of the United States and the European Union, and the jurisdictions in which the Seller and Buyer are established or from which Goods may be supplied. Notification of destination and end user is required of all Goods to be shipped overseas.
13. RESTRICTIONS ON RESALE. Goods are sold hereunder for Buyer’s use or resale to customers of Buyer that are not in the business of reselling the Goods. Buyer is not authorized to appoint any distributors or resellers of the Goods.
14. GENERAL PROVISIONS. (a) Buyer shall not assign its rights or obligations under the Agreement without Seller’s prior written consent. (b) There are no understandings, agreements or representations, express or implied, not specified in the Agreement. (c) No action, regardless of form, arising out of transactions under the Agreement, may be brought by either party more than two (2) years after the cause of action has occurred. (d) Any modification of these Terms and Conditions must be set forth in a written instrument signed by a duly authorized representative of Seller. (e) The Agreement shall be construed, performed and enforced under the laws of the Commonwealth of Pennsylvania, without regard to its principles of conflicts of law. Buyer and Seller agree that the exclusive venue for all actions arising under the Agreement shall be only in the United States in the state courts of Allegheny County, Pennsylvania and the United States District Court for the Western District of Pennsylvania. (f) UNLESS OTHERWISE SPECIFICALLY PROVIDED IN SELLER’S QUOTATION, GOODS AND SERVICES HEREUNDER ARE NOT INTENDED FOR USE IN ANY NUCLEAR OR NUCLEAR-RELATED APPLICATIONS. Buyer (i) accepts Goods and Services in accordance with the restriction set forth in the immediately preceding sentence, (ii) agrees to communicate such restriction in writing to any and all subsequent purchasers or users, and (iii) agrees to defend, indemnify and hold harmless Seller from any and all claims, losses, liabilities, suits, judgments and damages, including incidental and consequential damages, arising from use of Goods and Services in any nuclear or nuclear-related applications, whether the cause of action be based in tort, contract or otherwise, including allegations that the Seller’s liability is based on negligence or strict liability. (g) The 1980 United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. (h) If any provision of the Agreement is invalid under any statute or rule of law, such provision, to that extent only, shall be deemed to be omitted without affecting the validity of the remainder of the Agreement (i) Seller specifically objects to the application of any Federal Acquisition Regulation (“FAR”) or other governmental procurement provision or clause to the Agreement. (j) The rights, remedies and protections afforded to Seller under this Agreement, including but not limited to indemnification of Seller, limitation of remedy and liability and limited warranty shall extend to Seller and to its affiliates, subsidiaries or related companies performing or supplying work, services or products under this Agreement or any agreement into which it is incorporated by reference.
15. BUYER’S RESPONSIBILITIES. Buyer shall provide Seller ready access to the site where Consulting Services or Services are to be performed and adequate workspace and facilities to perform same as provided in these terms and conditions. Buyer shall not require Seller or its employees, as a condition to site access or otherwise, to further agree or enter into any agreement, which waives releases, indemnifies or otherwise limits or expands any rights or obligations whatsoever. Any such agreements shall be null and void. Buyer shall inform Seller, in writing, at the time of order placement, of any known hazardous substance or condition at the site, including, but not limited to, the presence of asbestos or asbestos containing materials, and shall provide Seller with any applicable Material Data Safety Sheets regarding same. Buyer shall appoint a representative familiar with the site and the nature of the services to be performed by Seller to be present at all times that Seller personnel are at the site. Seller shall not be liable for any expenses incurred by Buyer in removing, replacing or refurbishing any Buyer equipment or any part of Buyer’s building structure that restricts Seller access. Buyer personnel shall cooperate with and provide all necessary assistance to Seller. Seller shall not be liable or responsible for any work performed by Buyer. Goods are sold hereunder for Buyer’s use or resale to customers of Buyer that are not in the business of reselling the Goods. Buyer is not authorized to appoint any distributors or resellers of the Goods.
16. COMPLIANCE WITH LAWS AND SAFETY RULES. Seller shall comply with and make known to its employees all safety, security, and health rules issued to Seller by Buyer.
17. HIRING OF EMPLOYEES. Buyer agrees that during the execution of the Consulting Services by Seller, and for a period of twelve (12) months after performance of the Consulting Services, it shall not hire any employee(s) of Seller or its project team and shall not entice or counsel any such employee(s) to leave Seller’s employ. Buyer agrees that this covenant shall extend to its agents and affiliates. In the event that an employee of Seller is hired or leaves the employ of Seller in such circumstances, the Buyer shall pay Seller, as compensation for the cost incurred by Seller in recruiting and training the employee, the sum equivalent to six (6) months salary for each employee hired from or leaving the employment of Seller said lump sum payment to be paid to Seller in full within twenty (20) days after the employee’s effective date of severance from employment with Seller.
18. CANCELATION POLICY. Unless the equipment has been shipped, Buyer may cancel its order by written notice sent to Seller subject to the following. Contract cancelation charges are based on the time the cancelation is made with respect to work in progress and shall be no less than 10% of the value of the PO. This includes but is not limited to: 1.) Actual cancelation charges imposed by Seller's suppliers and 2.) Actual production status of Seller or Seller’s manufactured parts and assemblies. At the time of system or product staging, a 100% cancelation charge shall be applied to all canceled items.
19. RETURN POLICY. New and unused inventory returns will only be accepted within 90 days of the shipment of the product. Refunds will be issued back to the original form of payment, less a TWENTY-FIVE PERCENT (25%) restocking fee. Buyer will be responsible for all return shipping charges. If any component of the returned product is missing or damaged, Seller reserves the right to reject the entire return. The condition of the product will be determined at Seller’s discretion. Products sent back with damaged or missing packaging will be refused or returned at Buyer’s expense. Non-stock inventory and special-order items are not returnable or refundable. Seller reserves the right to change or amend this Return Policy at any time without notification. Seller reserves the right to refuse any return.
20. CONTAMINATED EQUIPMENT. Buyer is responsible for ensuring that any equipment presented for repair, modification or maintenance which has been exposed at any time to any hazardous or potentially hazardous material (collectively the “Equipment”) is properly decontaminated prior to the commencement of any work on said Equipment by Seller’s employees, agents or subcontractors, in any location. Prior to delivery of the Equipment to Seller, the Buyer will complete and issue a written certificate (the “Certificate”) to Seller (in a form approved by Seller) detailing the nature of the contaminant(s) in respect of the Equipment and the procedures used to ensure adequate decontamination of the Equipment. Subsequent to Seller’s review of the Certificate and any additional inspection as requested by Seller, Seller will either accept the Equipment or request that additional decontamination work be performed by Buyer, any work to be done by Buyer to be at Buyer’s exclusive cost.
Notwithstanding the fact that Seller decides to accept the Equipment, Seller reserves the right at any time to either (i) charge Buyer any additional costs and expenses incurred as a result of Seller subsequently ascertaining that the Equipment was not properly decontaminated (including but not limited to the costs of Seller or its employees and/or agents decontaminating the Equipment itself), or (ii) cancel the any applicable contract with Buyer with respect to the Equipment. In all events, the Buyer accepts full liability for any and all damages, losses, claims, expenses and/or costs, including legal fees associated therewith (collectively the “Claims”) which is caused by Equipment contamination, whether directly or indirectly, and shall fully indemnify Seller and any of its employees, agents, subcontractors, representatives and/or customers from any and all such Claims, including damage to any and all property arising from such contamination.
21. INDEMNITY. SELLER SHALL RELEASE, PROTECT, DEFEND, INDEMNIFY AND HOLD HARMLESS BUYER, ITS PRINCIPALS, SUBSIDIARIES AND RELATED OR AFFILIATED COMPANIES, ITS AND THEIR CONTRACTORS AND SUB CONTRACTORS OF EVERY TIER (EXCEPT FOR SELLER AND ITS SUBCONTRACTORS OF EVERY TIER), AND ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVANTS AND UNDERWRITERS (COLLECTIVELY, "BUYER GROUP"), FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION AND LAWSUITS OF EVERY KIND AND CHARACTER (WHETHER MERITORIOUS OR NOT) BROUGHT BY ANY PERSON OR ENTITY, AND ALL RELATED LOSSES, DAMAGES, COSTS AND EXPENSES, INCLUDING ATTORNEYS’ FEES AND COURT COSTS, FOR LOSS OR DAMAGE TO PROPERTY, OR PERSONAL OR BODILY INJURY, DEATH, DISEASE OR ILLNESS, WHENEVER OCCURRING, SUFFERED OR INCURRED BY ANY MEMBER OF “SELLER GROUP” (DEFINED AS SELLER, ITS PARENT, SUBSIDIARY, AND AFFILIATED ENTITIES, ITS AND THEIR SUBCONTRACTORS OF EVERY TIER , AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND SERVANTS OF ANY OF THEM), ARISING OUT OF OR IN ANY WAY DIRECTLY OR INDIRECTLY RELATED TO THE WORK RENDERED UNDER THIS AGREEMENT OR ANY PURCHASE ORDER, HOWSOEVER CAUSED, INCLUDING THE NEGLIGENCE OF ANY MEMBER OF BUYER GROUP (WHETHER SOLE OR CONCURRENT, ACTIVE OR PASSIVE) OR OTHER LEGAL FAULT (INCLUDING STRICT LIABILITY) or any presence on any premises (whether land, building, vehicle, platform, aircraft, vessel or otherwise) owned, operated, chartered, leased, used, controlled or hired by ANY MEMBER OF BUYER Group or ANY MEMBER OF SELLER GROUP.
BUYER SHALL RELEASE, PROTECT, DEFEND, INDEMNIFY AND HOLD HARMLESS SELLER GROUP FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION AND LAWSUITS OF EVERY KIND AND CHARACTER (WHETHER MERITORIOUS OR NOT) BROUGHT BY ANY PERSON OR ENTITY, AND ALL RELATED LOSSES, DAMAGES, COSTS AND EXPENSES, INCLUDING ATTORNEYS’ FEES AND COURT COSTS, FOR LOSS OR DAMAGE TO PROPERTY, OR PERSONAL OR BODILY INJURY, DEATH, DISEASE OR ILLNESS, WHENEVER OCCURRING, SUFFERED OR INCURRED BY ANY MEMBER OF BUYER GROUP ARISING OUT OF OR IN ANY WAY DIRECTLY OR INDIRECTLY RELATED TO THE WORK RENDERED UNDER THIS AGREEMENT OR ANY PURCHASE ORDER, HOWSOEVER CAUSED, INCLUDING THE NEGLIGENCE OF ANY MEMBER OF SELLER GROUP (WHETHER SOLE OR CONCURRENT, ACTIVE OR PASSIVE) OR OTHER LEGAL FAULT (INCLUDING STRICT LIABILITY) or any presence on any premises (whether land, building, vehicle, platform, aircraft, vessel or otherwise) owned, operated, chartered, leased, used, controlled or hired by ANY MEMBER OF BUYER Group or ANY MEMBER OF SELLER GROUP.
Notwithstanding the previous provisions of this section, and except as provided in this Agreement to the contrary, Seller shall release, defend, protect, indemnify and hold harmless Buyer Group to the extent that any third party claims arising out of or resulting from, directly or indirectly, the performance of this Agreement for personal injury, illness, death, property (whether real or personal or owned or leased) damage and other loss are contributed to or caused by the sole or concurrent, negligence, gross negligence or other intentionally tortious conduct of any member(s) of Seller Group.
Notwithstanding the previous provisions of this section, and except as provided in this Agreement to the contrary, Buyer shall release, defend, protect, indemnify and hold harmless Seller Group to the extent that third party claims arising out of or resulting from, directly or indirectly, the performance of this Agreement for personal injury, illness, death, property (whether real or personal or owned or leased) damage and other loss are contributed to or caused by the sole or concurrent, negligence, gross negligence or other intentionally tortious conduct of any member(s) of Buyer Group.
The indemnities in this Agreement shall only be effective to the maximum extent permitted by applicable law. If any law is enacted in any state that limits in any way the extent to which indemnification may be provided to an indemnitee and such law is applicable to this Agreement, then this Agreement shall automatically be amended to provide that the indemnification provided hereunder shall extend only to the maximum extent permitted by applicable law, but shall extend to such maximum extent.
Terms and Conditions of Purchase
Submission by Equipment & Controls, Inc. (“Buyer”) of any purchase order or other offer (“Order”) to purchase products or services (collectively, the “Products”) from Seller is expressly conditioned on Seller’s assent to the following terms and conditions (“these terms and conditions”), which assent shall be deemed to have been given by Seller’s acceptance of any such Order, including by filling such Order. 1. OFFER AND ACCEPTANCE. Only these terms and conditions shall govern Orders. Any terms and conditions which are included in any Order or other documentation of Seller (or which are posted on Seller’s website or included in an email transmission are communicated by Seller orally, in writing, electronically, or through any other medium) which oppose, deviate from or add to these terms and conditions shall be void and unenforceable unless Buyer has duly approved the same in writing. 2. GENERAL. These terms and conditions shall apply to all Orders issued to Seller for Products. 3. DELIVERIES. Buyer and Seller shall agree on the delivery method with respect to each other. Unless otherwise agreed in writing, all deliveries of products will be made FOB Buyer’s plant. 4. PACKING, MARKING, AND SHIPPING. (a) Seller will pack, mark and ship Products in accordance with all applicable packaging standards as agreed by Seller and Buyer and, as appropriate, the carrier transporting such Products to enable Buyer to secure the most economical transportation rates. 5. WARRANTIES. Seller warrants that the Products shall meet all specifications agreed to by the parties or published by Seller, and the products shall be of good and merchantable quality and fit for their intended purpose. Seller also warrants title to the Products, free and clear of all liens, security interests, encumbrances or restrictions. All warranties shall survive any test, inspection, delivery, acceptance, payment or use of the Products. Buyer at its option may reject and return at Seller’s risk and expense Products that fail to conform to the requirements of the Order. 6. INVOICES, PAYMENT. Seller and Buyer may agree on applicable payment terms and procedures. In the absence of such agreement, payment terms shall be net 60 days. 7. APPLICABLE TAXES. The total price specified for Products will include all elements of freight, duty and tax with the exception of value added tax (VAT), if applicable, which will be shown separately on Seller’s invoice. 8. REMEDIES, DEFENSE AND INDEMNITY. To the fullest extent permitted by law, Seller agrees to indemnify, hold harmless and defend Buyer and its affiliated companies, their directors, officers, employees and agents (“Indemnities”) from and against any losses, liabilities, costs, expenses, suits, actions, claims and all other obligations and proceedings, including, without limitation, all judgments rendered against, and all fines and penalties imposed upon, Indemnities and all reasonable attorney’s fees and any other cost of litigation (collectively, “Liabilities”) that are in any way related to Seller’s performance or obligations hereunder, including claims arising out of breech hereof, warranty claims, injuries to persons, including death, or damage to property caused by Seller, its employees, agents, subcontractors, or any way attributable to the performance of Seller, including, without limitation, breach of contract or breach of warranty. Seller’s obligation to defend and indemnify under this Section will apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability or otherwise, except for claims that arise as a result of the negligence of Buyer, but in such event only to the extent of such negligence. 9. INFRINGEMENT AND PROPRIETARY RIGHTS. Seller shall indemnify, defend, and hold Buyer harmless and shall pay all damages, fees, penalties and costs awarded or incurred by Buyer in any claim, suit or proceeding brought against Buyer that is based on a claim that the Products constitute an infringement of a valid US patent (an “Infringement Claim”). 10. INFORMATION AND DATA. Unless otherwise indicated in writing by Buyer, Seller will not disclose to others and will use only for the benefit of Buyer (i) any confidential technical information and data furnished by Buyer, and (ii) confidential information relating to any portion of Buyer’s business that Seller may acquire in the course of Seller’s activities hereunder. 11. INSURANCE INDEMNITY. Before performing any services on the premises owned or controlled or used by Buyer or Buyer’s customer, Seller shall provide and shall require its subcontractors to provide the following types of insurance in amounts not less than indicated below or such additional coverage or higher limits as required by the Buyer’s customer(s).
Worker’s Compensation Insurance in accordance with the statutory requirements of the location in which the services are performed. Employer’s Liability Insurance (including a waiver of subrogation in favor of Buyer and Buyer’s customer) shall have a minimum limit of $1,000,000 each occurrence. Commercial General Liability Insurance (including coverage for Premises Operation, Underground, Undermining, Explosion and Collapse Hazard, Product Completed Operations, Broad Form Property Damage, and Blanket Contractual Liability Coverage endorsed to cover Seller’s contractual liability assumed under paragraph B above) with minimum limits of $1,000,000 per occurrence. Comprehensive Automobile Liability Insurance including coverage owned, hired and non-owned automobiles with minimum limits of $1,000,000 each occurrence. The following is required if the services involve such exposure: Independent Contractor’s Liability Coverage (if Seller uses contractors) with the same limits as (3) above. Property Insurance covering all property under the care, custody and control of Seller on a full replacement cost basis. Such coverage will not have a deductible larger than $100,000 without Buyer’s written approval. 12. APPLICABLE LAW AND VENUE. Each Order shall be governed by the laws of the Commonwealth of Pennsylvania without regard to conflict of laws provisions thereof. Exclusive venue for any litigation relating to or arising out of an Order shall rest with the state or federal courts of Pennsylvania. The UN Convention for the International Sale of Goods is expressly excluded. 13. SEVERABILITY. Should any provision of these terms and conditions be or become illegal or unenforceable, the remaining provisions shall remain in force and be binding upon the parties. 14. ASSIGNMENT. Seller shall not assign its rights or obligations under any Order, whether by operation of law or otherwise, without the express prior written consent of Buyer. 15. HIRING OF EMPLOYEES. Seller agrees that (a) from the date that Buyer’s Order is accepted by Seller and for a period of twelve (12) months after said acceptance date, or (b) during the period Seller is providing services (if applicable) to Buyer and for a period of twelve (12) months after the final date of the performance of said services, Seller shall not hire any employee(s) of Buyer (whether full-time, part-time or as a contractor and notwithstanding if the starting date of the employee is deferred to a later time) and shall not entice or counsel any such employee(s) to leave Buyer’s employ in any manner. Seller agrees that this covenant shall extend to Seller’s agents and affiliates. In the event that an employee of Buyer is hired or leaves the employ of Buyer in such circumstances, the Seller shall pay Buyer, as compensation for the cost incurred by Buyer in recruiting and training the employee, the sum equivalent to six (6) months’ salary previously paid by Buyer (or six times the previous month’s salary for the month before the departure of the employee if he has worked with Buyer less than six months at the time the employee left Buyer) for each employee hired from or leaving the employment of Buyer.
Emerson Terms and Conditions
These Terms govern Emerson’s quotation and any resulting Contract for Emerson to supply Goods, Documentation, Software and Services. 1. Quotation & Contract: Emerson's quotation is valid for acceptance for 30 Days after its date, unless Emerson has stated a different period or withdraws it earlier. The PO must be in writing and has no effect until Acknowledgement. Emerson is not obliged to accept any PO. If there are any conflicts, discrepancies or ambiguities, the following order of priority applies: (1) the Acknowledgment, (2) these Terms, (3) the PO and (4) Emerson’s quotation. Clauses 5 and 16 of these Terms take priority over the rest of these Terms. All communications about the Contract must be in English and state the Customer PO number and Emerson order number. 2. Customer Duties: Customer must in a timely manner supply the information, documents and instructions Emerson reasonably needs to proceed with its Contract duties. Customer is responsible for the accuracy and completeness of all information it supplies. If Emerson performs Services at Site, Customer will not ask Emerson or Emerson Personnel to enter any agreement which imposes, waives, releases, indemnifies or otherwise limits or expands any rights or obligations in respect of Emerson or Emerson Personnel. Any such agreement is void. 3. Delivery: 3.1 Delivery and Performance Periods. Delivery and performance periods begin on Acknowledgment. All delivery periods and dates stated are approximate. Emerson will not be liable for any damages caused by its failure to deliver or perform on time. 3.2 Delivery Terms. Unless the Contract says otherwise, Emerson will deliver the Goods, Documentation and Software from its, its Affiliate’s or third party’s factory or warehouse (the point of delivery), Carriage Paid To (CPT) the place of destination named in the Contract (Incoterms® 2010). Customer will pay for freight, packing and handling at Emerson’s then current rates. 3.3 Partial Shipments. Emerson may make partial shipments. Emerson may ship batteries separately from the rest of the Goods. Hard copies of Documentation may be shipped separately from the Goods. 3.4 Storage. Emerson may place Goods, Documentation and Software into a third party warehouse chosen by Emerson, at Customer's expense if Customer, by its acts or omissions, delays their shipment. On placing Goods, Documentation and Software in the warehouse, delivery is complete and risk and title in Goods and Documentation passes to Customer. This Clause 3.4 does not apply to Goods, Documentation and Software which Emerson or its Affiliate is to export from the United States. 4. Title & Risk. Even if the Contract says otherwise and except as stated in Clauses 3.4 and 5: (a) for any Goods and Documentation which Emerson or its Affiliate is to export from the United States, title and risk of loss will pass to Customer when they pass the territorial limits of the US; (b) for all other Goods and Documentation, title will pass to the Customer on delivery and risk of loss will pass to Customer under the Incoterms® 2010 rule stated in the Contract. 5. Documentation, Software, Firmware and Intellectual Property: Emerson and other owners will each keep all rights, interest and title in their respective Documentation, Software, and Firmware. Customer’s use of Software and Firmware is governed exclusively by the Software License Agreement with Emerson (or its Affiliate) if there is one or, in any other case, by the license terms of the owner. Software or Firmware is not governed by a separate Software License Agreement, Customer is granted a non-exclusive, royalty-free license to use that (a) Software only in conjunction with the Goods; and (b) Firmware in the Goods, only as incorporated in the Goods. In both cases, the license applies only at the Site where the Goods are first used. Customer may only copy Documentation (with its copyright notices unchanged) as needed to install, operate, re-calibrate, de-install, maintain and repair the Goods for its reasonable internal business purposes. Unless the Contract says otherwise, Documentation will consist of one copy only of Emerson’s, its Affiliates’, or the manufacturer’s standard documents in English. Emerson is only required to supply third party documents if authorized to do so by the third party. Emerson may choose to supply Documentation by hard copy, by CD-ROM or other suitable media, or by download from a website. 6. Compensation: 6.1 Prices/Rates. Unless the Contract says otherwise, the prices, Software license fees and rates:(a) are fixed for Goods, Documentation and Software licenses delivered and for Services performed within the period(s) stated in the Contract; (b) exclude all taxes (such as sales, use, value added and similar taxes), duties, levies and similar charges. Emerson will invoice all these taxes, duties, levies and charges unless it has received an appropriate exemption from Customer; (c) exclude freight, packing and handling; and (d) exclude the storage, installation, start-up and maintenance of the Goods and Software. 6.2 Payment Terms. (a) Customer will pay Emerson: (i) in full without set-off, counterclaim or withholding (except deductions required by Law); (ii) in the currency of Emerson's quotation; and (iii) within 30 days of the invoice date. (b) Emerson will invoice: (i) Goods (including part shipments), Documentation and Software license fees: on delivery. (ii) Services and storage costs under Clause 3.4: monthly in arrears. (a) Customer will pay Emerson by check or direct bank transfer to the Emerson bank account stated in the Contract or invoice, paid in either case from Customer’s account with a bank in Customer’s country. Emerson may reject payment by any other method. (b) Customer waives the right to dispute any invoiced amount unless Customer tells Emerson of the dispute (with detailed reasons) within 10 Days from the invoice date. All undisputed amounts are payable as set out in Clause 6.2(c). (c) Emerson may end the Contract or suspend performance (including withholding shipment and suspending performance of Services) if Customer fails or, in Emerson’s reasonable opinion, appears likely to fail to make payment when due under the Contract or any other contract. This action will not subject Emerson to any penalty or affect its other rights. (d) Emerson may at any time demand such security for payment as Emerson may think reasonable, and Customer will provide the security within 10 Days after the request. This action will not affect any other right of Emerson. (e) Customer must pay all expenses (including attorneys' fees) incurred by Emerson in collecting late payments, up to the maximum amounts permitted by Law. 7. Warranties: Emerson warrants that: Emerson will transfer title to the Goods (excluding Software and Firmware) to Customer under Clause 4; (a) Goods, Documentation and Services will conform with the Specification; (b) Goods made by Emerson or its Affiliates will, under normal use and care, be free from defects in materials or workmanship; and (c) Emerson and its Affiliates’ Personnel delivering Services are trained and will use reasonable skill and care. 7.2 Warranty Periods. Unless otherwise specified by Emerson, the warranties in Clause 7.1 apply as follows: (a) Goods: until the earlier of 12 months from the first installation or 18 months from delivery (90 days from delivery in the case of consumables and PolyOil® products). (b) Services: for 90 days from completion of the Services. (c) Goods repaired, replacement items and Services re-performed: from delivery of the replacement or completion of the repair or re-performance, for 90 days or until the end of the original warranty period (if later). 7.3 Warranty Procedure. Clause 7.3 applies if, within the warranty period, Customer discovers any non-conformity with a warranty in Clause 7.1, tells Emerson in writing and, in the case of Goods, returns the non-conforming items at Customer’s cost, freight and insurance pre-paid, to the repair facility chosen by Emerson. Where this Clause applies, Emerson will, at its sole option, either: (a) correct any non-conforming Documents and Services; or (b) repair or replace non-conforming Goods FCA (Incoterms® 2010) at the repair location; or (c)instead refund the price of the non-conforming item. 7.4 Exclusions from Warranty. (a) The warranties in Clause 7.1(b), (c) and (d) exclude and Customer will pay the cost of all repairs and replacements caused by any of the following: normal wear and use; inadequate maintenance; unsuitable power sources or environmental conditions; improper handling, storage, installation, or operation; misuse or accident caused by anybody except Emerson; a modification or repair not approved by Emerson in writing; materials or workmanship made, provided or specified by Customer; contamination; the use of unapproved parts, firmware or software; Cyber Attack; any other cause not the fault of Emerson. (b) Emerson will not pay any costs relating to non-compliance with a warranty in Clause 7.1, except where agreed in writing in advance. Unless accepted in writing by Emerson, Customer will pay: ((i) all costs of dismantling, freight, reinstallation and the time and expenses of Emerson Personnel for travel under Clause 7; and (ii) all costs incurred by Emerson in correcting nonconformities for which Emerson is not responsible under Clause 7 and in examining items that comply with the warranties in Clause 7.1. (c) If Emerson relies on wrong or incomplete information supplied by Customer, all warranties are void unless Emerson agrees otherwise in writing. (d) Customer alone is responsible for the selection, maintenance and use of the Goods. (e) Resale Products carry only the warranty given by the original manufacturer. Emerson has no liability for Resale Products beyond making a reasonable commercial effort to arrange procurement and shipping of the Resale Products. 7.5 Disclaimer. The limited warranties set out in this Clause 7 are the only warranties made by Emerson and can be changed only with Emerson’s signed written agreement. THE WARRANTIES AND REMEDIES IN CLAUSE 7 ARE EXCLUSIVE. THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ABOUT MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR ANYTHING ELSE FOR ANY OF THE GOODS, DOCUMENTATION OR SERVICES. 8. Changes: No change to the Contract applies unless agreed in writing by Emerson and the Customer. 9. Termination: 9.1 Termination for Default and Insolvency. (a) Either party (Injured Party) may end the Contract wholly or partly by written notice to the other (Defaulting Party), if an Insolvency Event or Default Event affects the Defaulting Party. Termination under Clause 9.1 will not affect other rights of the Injured Party. (b) A Default Event occurs if all the following conditions are met: (i) Defaulting Party breaches a material duty under the Contract; (ii) Injured Party sends Defaulting Party a notice identifying the breach in sufficient detail; 10 Days after receiving the notice, Defaulting Party has not corrected the breach; and (i) if the breach cannot reasonably be corrected in 10 Days, Defaulting Party has not acted diligently to fix the breach. (c) An Insolvency Event means any of the following: (i) a meeting of creditors of Defaulting Party. (ii) a proposal for an arrangement or composition with or for the benefit of creditors of Defaulting Party. (iii) a charge holder, receiver, administrative receiver or similar person is appointed over or takes possession of material assets of Defaulting Party. (iv) a legal enforcement process is taken (and not discharged within 5 Days) against material assets of Defaulting Party. (v) Defaulting Party stops trading or cannot pay its debts. (vi) anyone gives notice of intention to appoint an administrator, or applies to court to appoint an administrator, in relation to Defaulting Party. (vii) a petition is presented (and not discharged within 20 Days) or a resolution is passed or an order made for winding-up, bankruptcy or dissolution of Defaulting Party. (viii) an event similar to any of (i) to (vii) in a jurisdiction where Defaulting Party is incorporated or resides or carries on business or has assets. (d) On termination under Clause 9.1(a), Customer will pay Emerson the price of Goods, Software, Documentation and Services already delivered. If Emerson was the Injured Party, Customer will also pay Emerson for work in progress under Emerson’s then current policies and cancellation charges. 9.2 Termination for Customer Convenience. Customer may end the Contract in whole or in part for its own convenience only with Emerson’s written agreement and following Emerson’s then current policies and cancellation charges. 9.3 Termination after 90 Days’ Force Majeure. Either party may end the Contract without liability by written notice to the other if performance of the Contract is delayed or prevented by a cause listed in Clause 12 for 90 Days. Unless prevented by a cause listed in Clause 12, Customer will pay Emerson for all Goods, Documentation, Software licenses and Services delivered before the notice was given and for work in progress. 10. Customer Information: Emerson may use and share Customer Information in accordance with data protection Law, as necessary to fulfil the Contract and to communicate with Customer for marketing purposes, including sharing: (a) Customer Information to its suppliers, for use in product registration and support and to comply with import and export control Law: (b) Customer Information and copies of the Contract to its agents and sales representatives, as necessary to fulfill the Contract. 11. Intellectual Property Claims: In Clause 11, an Intellectual Property Claim is a claim that Goods made or Documentation produced by Emerson infringe a valid intellectual property right (including patent, copyright, design right and trade mark) of the United States or of a country where the Contract states the Goods will be used. Clause 11 applies only while Customer does all the following: (a) promptly tells Emerson in writing that an Intellectual Property Claim has been threatened or filed; (b) allows Emerson complete control of the defense and settlement of the claim; and (c) gives all reasonable help and cooperation requested by Emerson for the defense. Emerson will indemnify and defend Customer against any Intellectual Property Claim brought by legal action. Emerson will only pay any final judgment or settlement resulting from the action. If the action results in an injunction against the use of any Goods or Documentation, Emerson will, at its sole option and expense, provide a commercially reasonable alternative. This may include procuring for Customer the right to continue using the Goods or Documentation or replacing them with a non-infringing item or changing them to become non-infringing or refunding their price. Emerson will not be liable for infringement, and Customer will indemnify Emerson, in each of these cases: (a) the infringement relates to goods not made by Emerson. (b) Emerson did not design the Goods or Documentation, or Emerson did not design them for use in the way or for the purpose that infringed intellectual property rights. (c) the Customer caused the Goods or Documentation to become infringing. 12. Force Majeure: Neither party is liable for non-performance or delay due to unforeseen circumstances or causes beyond its reasonable control, including acts of God; war; armed conflict; terrorism; fire; flood; accident; weather; failure or interruption of public and private computer or telecommunication systems, networks, and infrastructure; Cyber Attacks; sabotage; strikes or labor disputes; civil disturbances or riots; governmental decisions, requests, restrictions, Law (including the denial, failure to issue or loss of export or re-export licenses); unavailability of or delays in transport; or shortage of materials or parts. 13. Export Controls and Compliance: Customer and Emerson will comply with all: (a) export, import and other trade compliance Laws of the territories in which Customer and Emerson are established, from which the Goods, Firmware, Software, Services and any technical data are supplied or shipped, and to which the Goods, Firmware, Software, Services and any technical data will be taken or eventually used; and (b) Laws against bribery, corruption and money-laundering. Customer agrees not to use, transfer, release, export or re-export any Goods, Firmware, Software, Services or Emerson-supplied technical data contrary to trade compliance Law or to any license or required government authorization. Customer will give Emerson: (a) details of financial institutions and other parties involved in the transaction; (b) details of the end-destination, end-user and end-use of the Goods, Firmware, Software, Documentation and Services; (c) all information needed by Emerson to: (i) apply for necessary export and import licenses and government authorizations and (ii) comply with Laws against bribery, corruption and money-laundering and Emerson’s policies on them; and (d) any trade compliance certification or letter of assurance requested by Emerson in relation to trade compliance Law. Neither Emerson nor Customer will engage in any activity that exposes the other party or an Affiliate to a risk of penalties under Laws forbidding improper payments, including bribes. 14. Laws and Regulations: Both parties will comply with all Laws, except to the extent a party is prohibited from doing so based upon a conflict of Laws. The Contract does not require Emerson to collect, treat, recover or dispose of anything Law treats as 'waste'. If the Law on waste requires Emerson to dispose of something it supplied, Customer will, if allowed by Law, pay Emerson to dispose of it at Emerson's standard charge. If Emerson has no standard charge, Customer will pay Emerson's costs incurred in the disposal (including handling, transport and a reasonable mark-up for overhead). Each party must ensure that its Personnel will, while on the premises of the other party, comply with the other party’s reasonable site rules on HSSE that are communicated in writing to the visitor before its arrival, and with the other party’s reasonable instructions relating to HSSE. Emerson objects and does not agree to the application of any governmental procurement provision to the Contract. 15. Nuclear and Medical End-use: GOODS, FIRMWARE, SOFTWARE, DOCUMENTATION, SERVICES AND THE PRODUCTS OF SERVICES SUPPLIED UNDER THE CONTRACT MUST NOT BE USED (i) IN CONNECTION WITH ANY MEDICAL, LIFE-SUPPORT OR RELATED APPLICATIONS, or (ii) UNLESS OTHERWISE AGREED IN WRITING BY BOTH PARTIES AND COMBINED WITH AN EXECUTED NUCLEAR DEFENSE & INDEMNIFICATION AGREEMENT, IN CONNECTION WITH ANY NUCLEAR OR NUCLEAR-RELATED APPLICATION(S). Regardless of whether Customer is the owner/operator of the nuclear, medical or other facility, Customer: (a) accepts all Goods, Software, Documentation, Services and products of Services with these restrictions; (b) agrees to communicate these restrictions in writing to all later buyers or users; and (c) agrees to defend and indemnify Emerson and Emerson Affiliates from all claims arising from such use of Goods, Firmware, Software, Documentation, Services and products of Services.
This indemnity covers every sort of claim, including allegations of negligence, strict liability or product liability. 16. Limitation of Liability: EMERSON AND ITS AFFILIATES WILL NOT BE LIABLE FOR DAMAGES AUSED BY DELAY IN PERFORMANCE. THE REMEDIES OF CUSTOMER STATED IN THIS CONTRACT ARE EXCLUSIVE. REGARDLESS OF THE TYPE OF THE CLAIM (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), EMERSON’S AND ITS AFFILIATES’ LIABILITY TO CUSTOMER AND ITS AFFILIATES WILL NEVER EXCEED THE CONTRACT PRICE. NEITHER PARTY WILL EVER BE LIABLE FOR(A) DAMAGES FOR LOSS OR CORRUPTION OF DATA OR CYBER ATTACKS, OR (B) INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. “CONSEQUENTIAL DAMAGES” INCLUDE BUT ARE NOT LIMITED TO LOSS OF ANTICIPATED PROFITS, REVENUE, PRODUCTION OR USE AND COSTS INCURRED INCLUDING WITHOUT LIMITATION FOR CAPITAL, FUEL AND POWER, REPLACEMENT PRODUCT AND CLAIMS OF EACH PARTY’S AFFILIATES. No action, regardless of form, relating to this Contract, may be brought more than 2 years after the claim arose. 17. Applicable Law, Disputes, Notices: Missouri law governs the Contract and its interpretation. The parties agree to exclude any effect on that law of the 1980 United Nations’ Convention on Contracts for the International Sale of Goods and, so far as legally possible, any rules which might apply the laws of another jurisdiction. The State of Missouri’s courts or the U.S. federal district courts in Missouri have exclusive jurisdiction over all disputes arising out of the Contract. All notices and claims connected with the Contract must be in writing. 18. Entire Agreement: The Contract is the exclusive and entire agreement between the parties on its subject matter. At Acknowledgment, the Contract supersedes all previous or existing agreements, negotiations, representations and proposals, whether written, oral, express or implied, on that subject matter. 19. Definitions: In these Terms. Acknowledgement is Emerson’s written acceptance of the PO by means of Emerson’s standard order acknowledgement form, including all text on the form and its attachments. Affiliate of an entity is any body that entity controls, is controlled by or is under common control with. ‘Control’ of an entity means the direct or indirect beneficial ownership of more than half the shares, or other participating interest with the right to vote or to receive profits of that entity. Contract is the agreement between Customer and Emerson for the supply of the Goods and any Documentation, Software and Services. The Contract consists of: Emerson’s quotation, the PO, the Acknowledgement, these Terms, and all other documents contained or referred to in the agreement. (See Clause 1.3 for the order of priority of these documents.) Contract Price is the total price the Customer must pay Emerson for the Goods, Documentation, Services and Software licenses. Customer is the buyer of the Goods, Documentation, Services and Software licenses. Customer Information is: (a) Customer’s name, address, phone number, ship-to recipient and address; (b) similar details for the end-user (if that is not the Customer); and (c) Customer’s primary contact’s name, address, phone number, and email address. Cyber Attack: Means cyber attack, intrusion attempt, unauthorized third party access, and other malicious activity. Day: Is any day except Saturdays, Sundays and public holidays at Emerson’s office named in the Contract. Documentation: Means any manuals, drawings and other documents Emerson must supply with the Goods, Software and Services. Emerson: Is the Emerson Automation Solutions group company which issues the Acknowledgement. Firmware: Is any firmware incorporated into Goods Emerson must supply under the Contract. Goods: Are the goods Emerson must supply under the Contract. HSSE: Is health, safety, security and the environment. Law: Is applicable law, including statutory rules and regulations, decrees, directives, orders, by-laws and ordinances having the force of law. Personnel: Is anyone who works for a party (or for an Affiliate or subcontractor of that party). It includes both employees and contract staff. PO: Is Customer’s purchase order or acceptance of Emerson’s quotation, for the supply of the Goods, Software, Documentation and Services. Resale Products: Are Goods Emerson buys from anyone except an Emerson Affiliate for resale to Customer. Services: Are any services Emerson must perform under the Contract. Site: Means the places not belonging to Emerson or to an Emerson Affiliate, which are identified in the Contract as where the Goods are to be installed, and the Services performed. Software: Is any software Emerson must supply under the Contract.
Specification: Is the agreed specification of the Goods, Documentation and Services identified in the Contract or, if none is identified, Emerson’s standard published specification.