a. Seller’s prices are based on the sales terms and this document, together with any additional writings signed by Seller, represents a final complete and exclusive statement between the parties and may not be modified, supplemented, explained or waived by parol evidence, Buyer’s purchase order, a course of dealing, Seller’s performance or delivery, or in any other way except in writing signed by an authorized representative of seller. These terms are intended to cover all activity of Seller and Buyer hereunder, including sales and use of products, parts, and all related matters. Any references by Seller to buyer’s specifications and similar requirements are only to describe the products covered hereby and no warranties or other terms therein shall have force or effect. Catalogs, circulars, and similar pamphlets of the Seller are issued for general information purposes only and shall not be deemed to modify the provisions hereof.
b. The agreement formed hereby, and the language herein shall be construed and enforced under the Uniform Commercial Code as in effect in the State of Missouri (Earth City, Missouri being the home office of Automation Service) on the date hereof.
Any sales, use or other similar type taxes imposed on this sale or on this transaction are not included in the price. Such taxes shall be billed separately to the Buyer. Seller will accept a valid exemption certificate from the Buyer if applicable, however, if an exemption certificate previously accepted is not recognized by governmental taxing authority involved and the Seller is required to pay the tax by such exemption certificate, Buyer agrees to promptly reimburse Seller for taxes paid.
Each quotation is valid for thirty (30) days from its date unless otherwise stated in the quotation. Quotes contain detailed descriptions of products or parts, and receipt of Purchase Order is considered acceptance of that description.
4. TERMS OF PAYMENT
Payment terms are Net 30 days unless specifically negotiated otherwise. Customer will be responsible for all bank/wire fees. Effective August 1, 2022, a 3% surcharge will be added to the gross total which includes freight, shipping, and sales tax for all orders and/or invoices being paid with credit cards.
5. DELAYED PAYMENTS
If payments are not made in accordance with these terms, a service charge will, without prejudice to the right of Automation Service to immediate payment, be added to the account of the purchaser in an amount equal to the lower of 1.5 % per month or the highest legal rate on the unpaid balance.
6. PERFORMANCE, INSPECTION AND ACCEPTANCE
a. All products shall be finally inspected and accepted within twenty (20) days after receipt at point of delivery. Products not covered by the foregoing shall be finally inspected and accepted within twenty (20) days after receipt at point of delivery. All claims whatsoever by Buyer including claims for shortages, excepting those provided for under the WARRANTY AND LIMITATION OF LIABILITY AND PATENTS. Clauses hereof must be asserted in writing by Buyer within said twenty (20) day period or they are waived. If this contract involves partial performances, all such claims must be asserted within said twenty (20) day period for each partial performance. There shall be no revocation of acceptance. Rejection may be only for defects substantially impairing the value of products and Buyer’s remedy for lesser defects shall be those provided for under the WARRANTY AND LIMITATION OF LIABILITY clause.
b. Seller shall not be responsible for nonperformance or delays in performance occasioned by any causes beyond Seller’s reasonable control, including, but not limited to, labor difficulties, delays of vendors or carriers, fires, governmental actions, or material shortages. Any delays so occasioned shall affect a corresponding extension of Seller’s performance dates which are, in any event, understood to be approximate. In no event shall Buyer be entitled to incidental or consequential damages for late performance or a failure to perform.
c. If Buyer wrongfully rejects or revokes acceptance of items tendered under this agreement or fails to make a payment due on or before delivery, or repudiates this agreement, Seller shall have a right to recover as damages the price as stated herein. Upon recovery of the price, the items involved shall become property of the Buyer.
7. TITLE AND RISK OF LOSS
Full risk of loss (including transportation delays and losses) shall pass to the Buyer upon delivery of products to the FOB point. However, Seller retains title for security purposes only to all products until paid for in full in cash and Seller may at Seller’s option repossess the same upon Buyer’s default in payment hereunder and charge Buyer with any deficiency.
8. WARRANTY AND LIMITATION OF LIABILITY
a. The Seller is a remanufacturer of certain instrumentation goods and parts from equipment originally manufactured by others, which is warrantied for (2) years from the date of installation. Some traditional instrumentation is also produced new by Automation Service as the original manufacturer, which is warrantied for (2) years from purchase. Seller warrants that it’s product and parts when shipped, will meet all applicable specifications and other specific product requirements (including those of performance), if any, of this agreement, will be of good quality and will be free from defects in material and workmanship under normal use and service. On new product, warranty made to the Seller by the original manufacturer extends to the Buyer, but then only to the extent that the Seller is able to enforce said warranty or guarantee. All claims for defective products or parts under this warranty must be made in writing immediately upon discovery and in any event, within one (1) year from shipment. All claims of defective products and parts must be made in writing no later than eighteen (18) months after shipment. Defective items must be held for Seller’s inspection and returned to the original FOB point upon request. THE FOREGOING IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES WHATSOEVER. EXPRESS, IMPLIED AND STATUTORY INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS.
b. Products manufactured by Automation Service are warranted to meet performance specifications published by Automation Service at the time of manufacture and Automation Service reserves the right to update or change these specifications as well as parts, materials, labels, colors, vendors, etcetera without prior notice. Automation Service makes every attempt to maintain likeness to and similarity with products previously manufactured; however, Automation Service will not warrant likeness or similarity.
c. Upon Buyers submission of a claim as provided above and its substantiation, Seller shall at its option either repair or replace its product or part at the original FOB point at delivery or credit an equitable portion of the purchase price.
d. The foregoing warranty shall be void and shall have no further force and effect whatsoever in the event Seller’s product should be disassembled, recalibrated, reset or otherwise tampered with or repaired or modified by other than Seller, unless such work shall have been conducted in the presence of, and under procedures approved by Seller, in order to maintain validity of final product testing.
e. In the event certifications are required, certifications are based on adherence to rigid fabrication, assembly and test procedures during assembly and attest to the condition of the product at the time of shipment. Any disassembly, modifications, testing, tampering or inadequate storage of products covered by the certifications will void the certifications. Should disassembly or resetting of this product be necessary, such work must be conducted in the presence of, and under procedures approved by Seller, in order to maintain validity of the certifications.
f. The foregoing is Sellers only obligation and Buyers only remedy for breach of warranty and except for gross negligence, willful misconduct and remedies permitted under the PERFORMANCE, INSPECTION AND ACCEPTANCEclauses hereof,theforegoingisBuyersonlyremedyhereunderbywayofbreachofcontract,tort or otherwise. In no event shall Buyer be entitled to incidental or consequential damages. Any action for breach of this agreement must be commenced within two (2) years after and cause of action has accrued.
9. EXPORT CONTROLS; FCPA; UKBA; ANTIBOYCOTT AND UKCFA
a. Buyer shall not make any disposition of the Products, by way of transshipment, re-export, diversion or otherwise, except as applicable U.S. export laws and regulations may expressly permit, and other than in and to the ultimate country of destination specified on Order(s) or declared as the country of ultimate destination on Seller’s invoices or in the End Use Statement that Buyer supplies Seller. Seller shall submit export clearance filings based on end use and end user information that Buyer provided to Seller. Failure of Buyer to comply with the requirements specified in this section shall constitute a material default allowing Seller to cancel related Order(s) without liability.
b. Buyer warrants that it shall not violate or cause the Seller to violate the U.S. Foreign Corrupt Practices Act of 1977 (FCPA), as amended, the United Kingdom Bribery Act (UKBA) of 2010, as amended, or their respective implementing regulations in connection with Buyer’s sale or distribution of the Products and/or Services. Buyer also warrants that Buyer does not know or have reason to believe that any consultant, agent, representative or other person retained by Buyer in connection with the sale and/or distribution of products/Services has violated, nor caused Seller to violate the FPCA and/or the UKBA. Where Buyer learns of or has reason to know of any violation of FCPA and/or or UKBA in connection with the sale or distribution of Products/Services, Buyer shall immediately advise Seller.
c. Buyer further warrants that Buyer shall not violate or cause Seller to violate the U.S. Antiboycott Provisions of the U.S. Export Administration Regulations issued pursuant to the U.S. Export Administration Act of 1979, as amended, in connection with Buyer’s purchase of Products/Services and that Buyer shall not request or require Seller to make statements or certifications against countries that are not subject to boycott by the U.S.
d. Buyer shall not facilitate tax evasion or fail to prevent tax facilitation in the UK or other countries in accordance with the requirements of the UK Criminal Facilitation Act (UKFCA).
10. Excusable Delays
a. Seller shall not be liable for delays in delivery or failure to perform due directly or indirectly to causes beyond Seller’s reasonable control including but not limited to: acts of God; war; terrorism; civil commotion; riots; embargoes; government regulations, export license denials, port congestion; acts of or failure to act on the part of Buyer or its agents/employees; fires; floods; sabotage; nuclear incidents; earthquakes; storms; epidemics; pandemics; government action or orders; strikes; lockouts or other labor difficulties; shortages of or inability to timely obtain proper labor, materials, components, shipping space or transportation, fuel, supplies or power at current prices; or due to limitations imposed by the extent of availability of Seller’s normal manufacturing facilities.
b. If a delay excused per the above extends for more than 90 days and the parties have not agreed upon a revised basis for continuing providing Products/Services at the end of the delay, including adjustment of the price, then either party (except where delay is caused by Buyer, in which event only Seller) upon thirty (30) days’ notice may terminate the Order with respect to the unexecuted portion of the Products/Services, whereupon Buyer shall promptly pay Seller its reasonable termination charges upon submission of Seller’s invoices thereof.
11. Compliance with Laws
Export Laws. Seller agrees to observe and comply with all applicable federal, state and local laws, rules, regulations, including but not limited to all applicable laws, regulations, treaties, and agreements relating to the export, re-export, and import of any Product or part of Product. Buyer shall not, without first obtaining any required license to do so from the appropriate U.S. government agency; (i) export or re-export any Product or part of a Product, or (ii) export, re-export, distribute or supply any Product or part of a Product to any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the U.S. government. At Seller’s request, Buyer will provide information on the end user and end use of any Product or part thereof exported or to be exported by Buyer. Buyer shall cooperate fully with Seller in any audit or inspection related to applicable export or import control laws or regulations, and shall indemnify and hold Seller harmless from, or in connection with, any violation of this section by Buyer or its employees, consultants, or agents.
Automation Service values highly the confidence and good will of its customers and suppliers. We offer our products only on their merit and we expect our customers to judge and purchase our products and services solely on the basis of quality, price, delivery and service. Likewise, Automation Service buys only on merit and we judge and purchase solely on the basis of quality price, delivery and service. The Automation Service corporate policy applies in all relationships with our customers and suppliers.