Terms & Conditions
AutomateIT, LLC (“Seller”) Additional Terms and Conditions:
(January 1, 2023)
I. Terms and Conditions Applicable to Each Seller Quotation.
1.1. SALE, SERVICE AND TRAINING AGREEMENT. The goods or products sold, services provided and Training provided are sold or provided in accordance with the terms and conditions in Seller’s Quotation or SOW, and these additional terms and conditions (‘Terms”), and such other terms as Seller agrees to in writing, all of which shall be the Agreement of the parties with respect to the subject matter of Seller’s Quotation. In the event of any conflict in the terms stated in the Quotation or SOW, and these Terms, the Quotation or SOW shall control.
1.2. ACCEPTANCE. This sale is conditioned upon Purchaser’s written acceptance of all terms and conditions of the Quotation or SOW and these Terms, and Purchaser’s issuance of a purchase order in response to the Quotation or SOW shall be Purchaser’s written acceptance. Seller rejects any and all terms in any purchase order or other document of Purchaser which are in addition to, different from, or inconsistent with the Quotation, SOW or these Terms. This Quotation or SOW is an offer, subject to final approval by Seller. The offer may be withdrawn at any time prior to Seller’s final approval, and shall expire automatically if not accepted within 30 days from the date hereof, unless otherwise agreed to by Seller.
1.3. PAYMENT AND PRICING. Payment is due at the time of the order unless credit terms are provided on the face hereof, or otherwise provided by Seller in a SOW or other order document. Any balance not paid when due shall draw interest at the rate of 1.5% per month (18% A.P.R.) on the average daily balance until paid or the highest rate allowed by applicable law, whichever is less. Notwithstanding paragraph 1.9 hereof, the parties agree that Seller may bring suit to collect any unpaid balance due from Purchaser (or arbitrate at Seller’s option), and Purchaser shall pay all attorney fees and court costs incurred by Seller in connection with the suit to collect such unpaid balance, and all of Purchaser’s defenses, avoidances and counterclaims (other than the defense of payment) shall be submitted to arbitration as provided in paragraph 1.9. All payments shall be made in U.S. currency. Pricing shall be as provided in Seller’s Quotation or SOW. Purchaser’s delay in making payments, providing required information, and providing access to its facilities if applicable, may increase the Pricing and delay the Seller’s delivery schedule.
1.4. CREDIT APPROVAL. If Seller allows credit terms to Purchaser, the obligations of Seller hereunder, shall be subject to the condition precedent that Seller’s credit department approves the credit of Purchaser.
1.5. FORCE MAJEURE. Seller shall not be liable for any delay in shipment of the goods, provision of services or training due to delays caused by its suppliers, and causes beyond its control, including without limitation, acts of God, pandemics, epidemics, wars, terrorism, sabotage, casualties, accidents, labor disputes or shortages, governmental restrictions, laws, ordinances, rules or regulations (such as priorities, requisitions, allocations and price adjustment restrictions), or an inability to obtain personnel, material, equipment or transportation.
1.6. TAXES AND DUTIES, ETC. Purchaser shall pay, in addition to the purchase price, all sales, use and excise taxes, tariffs, duties and other charges imposed by any country, state, locality or other political subdivision in connection with the sale of the goods or provision of the services or training, and the cost of freight, delivery and insurance.
1.7. LIMITATION OF LIABILITY AND CYBER SECURITY. The parties’ exclusive remedy for claims arising hereunder shall be for damages. Under no circumstances shall either party be liable to the other party for special, indirect, incidental, punitive, exemplary, or consequential damages, such as including, but not limited, loss of profits or revenue, loss of use of equipment, loss or data. Purchaser understands that Seller cannot insure that the products and services will operate without interruptions. The remedies of the Purchaser, and any other party, arising out of or related to the goods, services, or training set forth herein are exclusive, and the liability of the Seller with respect to the goods, services, or training or anything done in connection therewith, or from the manufacture, sale, delivery, resale, installation or use of any of the goods sold by Seller, services or training provided, whether arising out of contract, negligence, strict liability, tort, or under any warranty, statute, regulation, or otherwise, shall not, exceed the price charged by Seller for the portion of the goods services, or training giving rise to such liability. Seller and Purchaser shall use best reasonable practices to protect against the transmission of malware and viruses in their electronic transmission of data and information to the other. Seller’s goods or products sold, services provided and Training provided do not include creating, modifying or ensuring compliance with Purchaser’s cyber security policies, unless expressly provided in Seller’s Quotation. The Purchaser is responsible for the creation, implementation, enforcement and adequacy of its cyber security policies, and the risk of data loss, theft, destruction, and damages caused by malware, ransomware and other viruses, whether arising from Seller’s access to the Purchaser’s systems or otherwise. The Purchaser shall defend, indemnify and hold harmless Seller and its subcontractors, agents and employees from and against all claims, losses, and expenses of any nature, including but not limited to reasonable attorneys’ fees, arising out of or related to any actual or alleged improper access to or use of the Purchaser’s systems, except to the extent the relevant security breach was determined to be caused solely by Seller intentionally gaining improper access or use of the Purchaser’s systems.
1.8. REMEDIES. The remedies provided herein are exclusive and in lieu of any other remedies allowed by law or in equity. The failure of a party to exercise any right or remedy shall not constitute a waiver of the right to exercise that, or any other remedy; and no waiver of any breach or non-compliance of any provision herein shall operate as a waiver of any other breach or non-compliance of the same or any other provision.
1.9. APPLICABLE LAW, ARBITRATION. This Agreement is be governed by the internal laws of the State of Missouri. The parties agree that any proceedings in court or hearings in arbitration shall be brought exclusively in Springfield, Missouri. THE PARTIES EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY. Except as provided in paragraph 1.3 hereof, any dispute, controversy or claim arising out of or relating to this Agreement or any purchase order issued by Purchaser and accepted by Seller hereunder (including, but not limited to, any dispute relating to the existence, interpretation, breach or termination hereof or thereof, and the validity and enforceability of this agreement to arbitrate claims) that cannot be resolved by the parties shall be resolved by binding arbitration administered by, and in accordance with the Construction Industry Rules of the American Arbitration Association. The arbitration award may be reduced to judgment by any court having jurisdiction thereof. The cost of the arbitration and the arbitrator(s) shall be shared equally between the parties, and each party shall bear its own attorney fees and expenses.
1.10. MISCELLANEOUS. This Agreement is a complete and exclusive statement of the terms of the Parties’ agreement. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any term used herein, and no modification shall be binding unless made in a writing and signed by the party to be charged. No claim or right arising out of a breach of this Agreement can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by separate consideration and is in a writing signed by the party to be charged. Neither party shall assign its rights or delegate its duties under this Agreement. Facsimile and E-mail signatures of the parties shall constitute original signatures for all purposes. The invalidity of any portion of this Agreement shall not affect the validity of any remaining portions thereof. The parties at all times shall be independent. Neither party is an employee, joint venturer, agent or partner of the other, and neither party may create or bind the other or create obligations or liabilities, express or implied on behalf of or in the name of the other. Certain goods may be accompanied by OSHA required MSDS prepared by the Seller’s vendor, and Seller makes no warranty or recommendation with respect to the information contained in any MSDS, and the Purchaser is responsible for any reliance on such information and the use or application of such goods.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION, WHICH MAY BE ENFORCED BY THE PARTIES.
II. Terms and Conditions Applicable to the Sale of Goods and Products, in Addition to Section I. Above.
2.1. DRAWINGS, ACCESS TO INFORMATION. Any Seller drawings approved by Purchaser and its agents and representatives, shall be deemed to be in conformance with all project drawings and specifications provided by the Purchaser. Purchaser shall provide Seller with all information necessary for Seller to provide its goods, including, but not limited to, current versions of Purchaser’s software and system documentation. Any delay by Purchaser in approving drawings submitted by Seller, or providing necessary information, may delay the shipment date and may increase the price of the goods
2.2. SHIPMENT, PERFORMANCE DATES. Any shipment or performance dates designated on the face hereof or in any SOW, are estimated and not guaranteed. Seller may ship the goods by any mode, and in full or partial shipments. Seller shall not be liable for any delay in shipment of the goods or performance of services due events of Force Majeure, or delays caused by Purchaser.
2.3. TITLE, RISK OF LOSS. The goods shall be shipped FOB Seller’s plant or drop shipped from the vendor/OED, and title to the goods and all risks of loss with respect to the goods shall transfer to the Purchaser after they have been placed in the possession of a carrier.
2.4. INSPECTION. Purchaser shall inspect the goods at the time and place of delivery and Purchaser agrees that such occasion shall constitute a reasonable opportunity for its full inspection. The parties agree that Purchaser’s failure to reject the goods within three (3) business days shall constitute acceptance of the goods.
2.5. WARRANTIES. Seller makes no representation and disclaims all warranties, express or implied, for any product manufactured by a third party which may be sold by Seller, such products are sold by Seller, AS IS, and for such products the warranty, if any, shall be the warranty provided by the original manufacturer, and Purchaser shall look solely to the original manufacturer for any warranty claim. For goods manufactured by Seller, Seller warrants that such goods shall be free of defects in workmanship for a period of one year from the date of shipment, or such other period as provided on the face hereof, and if goods do not conform to this warranty, Seller at its election shall repair or replace the goods, or refund the purchase price for the portion of the goods giving rise to the warranty claim, and in all cases the cost to repair or replace other property, the cost of removing and installing the goods, and freight are not included in this warranty; and provided that this warranty does not extend to products not of Seller’s manufacture, and as to such products Seller conveys to Purchaser the warranty, if any, provided by Seller’s vendor. THIS WARRANTY IS EXCLUSIVE, AND SELLER DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHER WARRANTY, WHETHER EXPRESSED OR IMPLIED. THESE DISCLAIMERS AND EXCLUSIONS, AND THE LIMITATION OF LIABILITY SET FORTH IN SECTION 1.7 ABOVE APPLY EVEN IF THE EXPRESS WARRANTIES AND THE LIMITED REMEDIES PROVIDED FAIL OF THEIR ESSENTIAL PURPOSE. Oral statements by Seller’s employees or representatives do not constitute warranties, shall not be relied upon by Purchaser, and are not part of this Agreement. If Seller provides a warranty, it is conditioned upon Purchaser’s payment in full. Any warranty offered by Purchaser to its customers, in excess of that offered by Seller, shall be the responsibility of Purchaser.
2.6. CANCELLATION AND RETURNS. Purchaser may not cancel this agreement, or return goods without the prior consent of Seller. For special order goods the cancellation charge shall equal the total selling price less the estimated direct labor and materials not expended less the salvage value of materials already purchased, and for returns, the re-stocking fee may equal the price of the goods. For stock items, the cancellation and return charge shall equal a re-stocking fee of 25% of the total selling price, provided that in the case of a return, the goods shall be returned, unused, undamaged, in the original unopened, unmarked and undamaged packaging, of current design and series, and such return is received by Seller, freight prepaid, not later than 30 days after Seller’s consent to the return. Goods cut to length or modified to Purchaser’s specifications, special order goods, obsolete, discontinued or close-out items, broken or fragile items, custom goods, or goods not returnable to Seller’s vendor, or goods without Seller’s invoice number, are not returnable for credit.
2.7 CERTIFICATIONS. If Purchaser desires to obtain RoHS certifications from its vendors/OEMs relating to the restrictions of hazardous substances directive required by any Federal, State, or local laws or regulations, on the request of Purchaser, Seller shall provide reasonable assistance to Purchaser in requesting the same from Seller’s vendors/OEMs.
III. Terms and Conditions Applicable to Services, in Addition to Section I. Above.
3.1 SOW, ACCESS TO INFORMATION. These Terms and Conditions (‘Terms”) cover the sale by Seller of the Products and Services to be performed as set forth in a Statement of Work (“SOW”) between Seller and Client, and such other terms as Seller agrees to in writing, all of which shall be the Agreement of the parties. In the event of any conflict in the terms stated in the SOW, and these Terms the SOW shall control. Purchaser shall provide Seller with all information necessary for Seller to provide its Services, including, but not limited to, current versions of Purchaser’s software and system documentation. If monitoring Services are provided by Seller, such Services shall be specified in the SOW as to scope, duration and pricing.
3.2. WARRANTIES. (a) Warranty for Services: Seller warrants to Client for 12 months from acceptance of the Services, that the Services will perform as stated in the SOW provided that the operating conditions and use of the Services are in accordance with any standards set forth in the SOW, and not subjected to abuse, misuse, adverse environmental or operating conditions, or repair or alteration by others. Repaired or replacement Services provided pursuant to subparagraph (c) below are similarly warranted for the remainder of the original warranty term.
(b) Products Warranty: Seller warrants to Client for the period of 12 months from shipment, that the Products will be free of defects in material, fabrication, and workmanship provided that they are not subjected to abuse, misuse, repair or alteration by others, and the environmental or operating conditions and use of the Products are in accordance with any standards set forth in the SOW. Repaired or replacement Products provided pursuant to subparagraph (c) below are similarly warranted for the remainder of the original warranty term. For any Product manufactured by a third party which may be sold by Seller in the performance of the Services, or otherwise, the warranty, if any, shall be the warranty provided by the original manufacturer, and Client shall look solely to the original manufacturer for any warranty claim, unless the claim is caused by the sole negligence or willful misconduct of Seller or those for whom it is liable.
(c) Remedies: Remedies under this warranty will be limited to, at Seller’s discretion, replacement, repair, re-performance, modification, or issuance of a credit for the price of the portion of the defective the Services or Products involved in the claim, but only after Seller’s receipt of Client’s written notification of non-conformity. Replacement Products, at Seller’s discretion, may be new, remanufactured, refurbished, or reconditioned. If the repair, re-performance, or replacement does not cure the defective performance, Client may request emergency on-site service, which will be at Client’s expense (consisting of labor, time, travel, and expenses incurred by Seller related to such services). On-site warranty services performed at Seller’s expense shall not include removal or reinstallation costs related to large-scale assemblies, such as machinery, equipment lines, motors or transformers. The foregoing will be the exclusive remedies for any breach of warranty or breach of contract arising from warranted defects.
(d) General: Warranty satisfaction is available only if (i) Seller is provided prompt written notice of the warranty claim, prior to the expiration of the warranty period and (ii) Seller’s examination discloses that any alleged defect has not been caused by misuse, neglect, improper installation, operation, maintenance, repair, alteration, or modification by other than Seller, accident, or unusual deterioration or degradation of the Work or parts thereof due to physical environment or electrical, electromagnetic noise environment, or similar causes beyond Seller’s control. THE ABOVE WARRANTIES ARE EXCLUSIVE, AND SELLER DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHER WARRANTY, WHETHER EXPRESSED OR IMPLIED. THESE DISCLAIMERS AND EXCLUSIONS, AND THE LIMITATION OF LIABILITY SET FORTH IN SECTION1.7 ABOVE APPLY EVEN IF THE EXPRESS WARRANTIES AND THE LIMITED REMEDIES PROVIDED FAIL OF THEIR ESSENTIAL PURPOSE. Seller’s warranties are conditioned upon Client’s payment in full.
(e) Facilities: Unless otherwise provided in Seller’s Quotation, the Services shall be provided at a location provided by Purchaser. Purchaser shall be responsible for providing safe, sufficient and appropriate space, and normal climate control and ventilation, to conduct such Services, free of exposure to toxic, hazardous, or radioactive substances. Purchaser shall advise Seller if any services are to me performed in any confined space, or elevated area. Purchaser shall provide PPE if required in the performance of the Services
(f) Hold Harmless: Purchaser shall protect, defend, indemnify and hold Seller and its officers, directors, employees, agents and contractors harmless against the claims of any person or entity arising out of or relating in any way to the Services, including, but not limited to subrogation claims, except to the extent caused by the gross negligence or willful misconduct of Seller or those for whom it is liable.
(g) Exclusions: Except as expressly provided in the SOW, Services do not include: products, parts, and software not covered by vendor or OEM warranty or support; the cost to bring Clients software and systems to the standards required for the performance of the Services; repair or services made necessary by alterations, repairs and additions to the Products and Services performed by Client’s employees or others; proper operation of software and equipment furnished by Client,
3.3. ACCEPTANCE. (a) Acceptance of Services and Products occurs on the earlier of (i) the date the Services or Products conform to acceptance criteria in the SOW, or are otherwise beneficially used by Client in non-start up production runs of two or more shifts, but in no event later than 30 days from start-up; or (ii) on the satisfaction of the acceptance criteria are specified in the SOW, if any.
(b) Interim Approvals. Any Seller provided interim deliverable requiring Client approval pursuant to the SOW will be deemed accepted if formal Client approval, written or as otherwise required, is not received by Seller within two calendar weeks after the date submitted.
3.4. BUYER SPECIFICATION. Unless otherwise specified in the SOW Seller does not warrant or indemnify and will not otherwise be liable for (i) design, materials, or construction criteria furnished or specified by Client and incorporated into the Services or Products, (ii) products supplied by, made by or sourced from Client or other manufacturers or vendors specified by Client; or (iii) commercially available computer software, hardware, and electrical components. Any warranty or indemnity applicable to such Client supplied/specified products will be limited solely to the warranty or indemnity, if any, extended by the original manufacturer or vendor.
3.5. STANDARD SOFTWARE. Software comprised of firmware or standard software (including, but not limited to packaged software, templates, models and library files, and commercially available software) (collectively “Standard Software”) is subject to Client’s acceptance of additional terms and conditions set forth in separate third-party click-wrap license agreements provided with such Standard Software. Such terms and conditions shall be the exclusive terms and conditions applicable to such Standard Software, excluding Client’s obligation to pay any license fee, which shall be identified in the SOW.
3.6. CANCELLATION. Either party may terminate this Agreement on ten (10) days prior written notice; provided that Client shall (i) pay for any Services performed and Products provided before receipt of notice and any additional costs of termination including third-party commitments, reasonable profit, and overhead as may be more specifically provided in the SOW, upon submission of Seller’s invoices.
3.7. EMPLOYEE SOLICITATION. During the term of this Agreement and for 12 months following its termination, Client agrees that it will not directly or indirectly hire, or utilizes the services of, any employee of Seller with whom the Client has had contact as a result of this Agreement. Compliance with this restriction may be enforced by Seller by an action for specific performance, or any other remedy available at law or in equity.
3.8. CONFIDENTIALITY. During the term of this Agreement and for a period of three (3) years thereafter, each party shall maintain in strict confidence all technical and business data and information disclosed by one party to the other that is marked “Confidential” and will not use or reveal such information without the prior written consent of the disclosing party, including the terms of this Agreement, except on a confidential basis as compelled by law or a court of competent jurisdiction.
IV. Terms and Conditions Applicable to Training, in Addition to Section I Above.
4.1. TRAINING FEE AND EXPENSES. The Training Fees and travel, meals, lodging, tolls, parking, applicable sales tax, and similar expenses shall be as provided in Seller’s Quotation.
4.2. TRAINING SCHEDULE. Seller shall provide the Services at the location and on the dates provided in Seller’s Quotation or as otherwise agreed to by Seller and Purchaser. Seller shall not be liable for any delays caused by events beyond its control.
4.3. WARRANTIES. Seller warrants that the Services will be performed in a manner consistent with the recommendations of its vendors. If Seller fails to comply with this warranty, it shall re-perform the Services, at its expense, provided that Seller receives notice of such failure from Purchaser within thirty (30) days after the Services have been completed. WHILE SELLER BELIEVES THAT THE TRAINING MATERIALS USED IN THE PERFORMANCE OF THE SERVICES ARE ACCURATE AND CORRECT, SELLER DOES NOT WARRANT THE ACCURACY OR THE CORRECTNESS OF SUCH MATERIALS. SELLER DOES NOT WARRANT THE RESULTS OF THE SERVICES PERFORMED HEREUNDER. THIS WARRANTY IS EXCLUSIVE, AND SELLER DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHER WARRANTY, WHETHER EXPRESSED OR IMPLIED. THESE DISCLAIMERS AND EXCLUSIONS, AND THE LIMITATION OF LIABILITY SET FORTH IN SECTION1.7 HEREOF APPLY EVEN IF THE EXPRESS WARRANTIES AND THE LIMITED REMEDIES PROVIDED FAIL OF THEIR ESSENTIAL PURPOSE. Seller’s warranties are conditioned upon Purchaser’s payment in full.
4.4. FACILITIES. Unless otherwise provided in Seller’s Quotation, the Services shall be provided at a location provided by Purchaser. Purchaser shall be responsible for providing safe, sufficient and appropriate space to conduct such Services.
4.5. HOLD HARMLESS. Purchaser shall protect, defend, indemnify and hold Seller and its officers, directors, employees, agents and contractors harmless against the claims of any person or entity arising out of or relating in any way to the Services, including, but not limited to subrogation claims, except to the extent caused by the gross negligence or willful misconduct of Seller or those for whom it is liable.