General Terms & Conditions
1. General
The terms and conditions contained herein, together with any additional or different terms contained in THG Automation Proposal, if any, submitted to Purchaser (which Proposal shall control over any conflicting terms), constitute the entire agreement (the “Agreement”) between the parties with respect to the order and supersede all prior communications and agreements regarding the order. Acceptance by THG Automation of the order, or Purchaser’s acceptance of THG Automation Proposal, is expressly limited to and conditioned upon Purchaser’s acceptance of these terms and conditions, payment for or acceptance of any performance by THG Automation being acceptance. These terms and conditions may not be changed or superseded by any different or additional terms and conditions proposed by Purchaser to which terms THG Automation hereby objects. Unless the context otherwise requires, the term “Equipment” as used herein means all of the equipment, parts, accessories sold, and all software and software documentation, if any, licensed to Purchaser by THG Automation (“Software”) under the order. Unless the context otherwise requires, the term “Services” as used herein means all labor, supervisory, technical and engineering, installation, repair, consulting or other services provided by THG Automation under the order. As used herein, the term “Purchaser” shall include the initial end use of the Equipment and/or services; provided, however, that Paragraph 13(a) shall apply exclusively to the initial end user.
2. Prices
(a) Unless otherwise specified in writing, all Proposals expire thirty (30) days from the date thereof.
(b) Unless otherwise stated herein, Services prices are based on normal business hours (6 a.m. to 6 p.m. Monday through Friday). Overtime and Saturday hours will be billed at one and one-half (1 1/2) times the hourly rate; and Sunday hours will be billed at two (2) times the hourly rate; holiday hours will be billed at three (3) times the hourly rate. If a Services rate sheet is attached hereto, the applicable Services rates shall be those set forth in Appendix A. Rates are subject to change without notice.
(c) The price does not include any federal, state or local property, license, privilege, sales, use, excise, gross receipts, or other like taxes which may now or hereafter be applicable. Purchaser agrees to pay or reimburse any such taxes which THG Automation or its suppliers are required to pay or collect. If Purchaser is exempt from the payment of any tax or holds a direct payment permit, Purchaser shall, upon order placement, provide THG Automation a copy, acceptable to the relevant governmental authorities of any such certificate or permit.
(d) The price includes customs duties and other importation or exportation fees, if any, at the rates in effect on the date of THG Automation Proposal. Any change after that date in such duties, fees, or rates, shall increase the price by THG Automation additional cost.
3. Payment
(a) Unless specified to the contrary in writing by THG Automation, payment terms are net cash, payable without offset, in United States Dollars, by wire transfer or check to the account designated by THG Automation in the Proposal.
(b) If in the judgment of THG Automation the financial condition of Purchaser at any time prior to delivery does not justify the terms of payment specified, THG Automation may require payment in advance, payment security satisfactory to THG Automation, or may terminate the order, whereupon THG Automation shall be entitled to receive reasonable cancellation charges. If delivery is delayed by Purchaser, payment shall be due on the date THG Automation is prepared to make delivery. Delays in delivery or nonconformities in any instalments delivered shall not relieve Purchaser of its obligation to accept and pay for remaining installments.
(c) Purchaser shall pay, in addition to the overdue payment, a late charge equal to the lesser of 5% per month or any part thereof or the highest applicable rate allowed by law on all such overdue amounts plus THG Automation attorneys’ fees and court costs incurred in connection with collection.
4. Changes
(a) Any changes requested by Purchaser affecting the ordered scope of work must be accepted by THG Automation and resulting adjustments to affected provisions, including price, schedule, and guarantees mutually agreed in writing prior to implementation of the change.
(b) THG Automation may, at its expense, make such changes in the Equipment or Services as it deems necessary, in its sole discretion, to conform the Equipment or Services to the applicable specifications. If Purchaser objects to any such changes, THG Automation shall be relieved of its obligation to conform to the applicable specifications to the extent that conformance may be affected by such objection.
5. Delivery
(a) All Equipment manufactured, assembled or warehoused in the continental United States is delivered F.O.B. point of shipment. Equipment shipped from outside the continental United States is delivered F.O.B. United States port of entry. Purchaser shall be responsible for any and all demurrage or detention charges.
(b) If the scheduled delivery of Equipment is delayed by Purchaser or by Force Majeure, THG Automation may move the Equipment to storage for the account of and at the risk of Purchaser whereupon it shall be deemed to be delivered.
(c) Shipping and delivery dates are contingent upon Purchaser’s timely approvals and delivery by Purchaser of any documentation required for THG Automation performance hereunder.
(d) Claims for shortages or other errors in delivery must be made in writing to THG Automation within ten days of delivery. Equipment may not be returned except with the prior written consent of and subject to terms specified by THG Automation. Claims for damage after delivery shall be made directly by Purchaser with the common carrier
6. Title and Risk of Loss
Except with respect to Software (for which title shall not pass, use being licensed) title to Equipment shall remain in THG Automation until fully paid for. Notwithstanding any agreement with respect to delivery terms or payment of transportation charges, risk of loss or damage shall pass to Purchaser upon delivery.
7. Warranties and Remedies
(a) Equipment and Services Warranty. THG Automation warrants that Equipment shall be delivered free of defects in material and workmanship and that Services shall be free of defects in workmanship. The Warranty Remedy Period for Equipment (excluding Software, Spare Parts and Refurbished or Repaired Parts) shall end twelve (12) months after installation.
(b) Equipment and Services Remedy. If a nonconformity to the foregoing warranty is discovered in the Equipment or Services during the applicable Warranty Remedy Period, as specified above, under normal and proper use and provided the Equipment has been properly stored, installed, operated and maintained and written notice of such nonconformity is provided to THG Automation promptly after such discovery and within the applicable Warranty Remedy Period, THG Automation shall, at its option, either (i) repair or replace the nonconforming portion of the Equipment or re-perform the nonconforming Services or (ii) refund the portion of the price applicable to the nonconforming portion of Equipment or Services. If any portion of the Equipment or Services so repaired, replaced or re-performed fails to conform to the foregoing warranty, and written notice of such nonconformity is provided to THG Automation promptly after discovery and within the original Warranty Remedy Period applicable to such Equipment or Services or 30 days from completion of such repair, replacement or re-performance, whichever is later, THG Automation will repair or replace such nonconforming Equipment or re-perform the nonconforming Services. The original Warranty Remedy Period shall not otherwise be extended.
(c) Exceptions. THG Automation shall not be responsible for providing working access to the nonconforming Equipment, including disassembly and re assembly of non-THG Automation supplied equipment, or for providing transportation to or from any repair facility, all of which shall be at Purchaser’s risk and expense. THG Automation shall have no obligation hereunder with respect to any Equipment which (i) has been improperly repaired or altered; (ii) has been subjected to misuse, negligence or accident; (iii) has been used in a manner contrary to THG Automation’s instructions; (iv) is comprised of materials provided by or a design specified by Purchaser; or (v) has failed as a result of ordinary wear and tear. Equipment supplied by THG Automation but manufactured by others is warranted only to the extent of the manufacturer’s warranty, and only the remedies, if any, provided by the manufacturer will be allowed.
(d) Software Warranty and Remedies. THG Automation warrants that, except as specified below, the Software will, when properly installed, execute in accordance with THG Automation’ published specification. If a nonconformity to the foregoing warranty is discovered during the period ending one (1) year after the date of shipment and written notice of such nonconformity is provided to THG Automation promptly after such discovery and within that period, including a description of the nonconformity and complete information about the manner of its discovery, THG Automation shall correct the nonconformity by, at its option, either (i) modifying or making available to the Purchaser instructions for modifying the Software; or (ii) making available at THG Automation’ facility necessary corrected or replacement programs. THG Automation shall have no obligation with respect to any nonconformities resulting from (i) unauthorized modification of the Software or (ii) Purchaser-supplied software or interfacing. THG Automation does not warrant that the functions contained in the software will operate in combinations which may be selected for use by the Purchaser, or that the software products are free from errors in the nature of what is commonly categorized by the computer industry as “bugs”.
(e) THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF QUALITY AND PERFORMANCE, WHETHER WRITTEN, ORAL OR IMPLIED, AND ALL OTHER WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USAGE OF TRADE ARE HEREBY DISCLAIMED. THE REMEDIES STATED HEREIN CONSTITUTE PURCHASER’S EXCLUSIVE REMEDIES AND THG Automation’ ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY.
8. Limitation of Liability
(a) In no event shall THG Automation, its suppliers or subcontractors be liable for special, indirect, incidental or consequential damages, whether in contract, warranty, tort, negligence, strict liability or otherwise, including, but not limited to, loss of profits or revenue, loss of use of the Equipment or any associated equipment, cost of capital, cost of substitute equipment, facilities or services, downtime costs, delays, and claims of customers of the Purchaser or other third parties for any damages. THG Automation’ liability for any claim whether in contract, warranty, tort, negligence, strict liability, or otherwise for any loss or damage arising out of, connected with, or resulting from this Agreement or the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, repair, replacement, installation, technical direction of installation, inspection, operation or use of any equipment covered by or furnished under this Agreement, or from any services rendered in connection therewith, shall in no case (except as provided in the section entitled “Patent Indemnity”) exceed one-half (1/2) of the purchase price allocable to the Equipment or part thereof or Services which gives rise to the claim.
(b) All causes of action against THG Automation arising out of or relating to this Agreement or the performance or breach hereof shall expire unless brought within one year of the time of accrual thereof.
(c) In no event, regardless of cause, shall THG Automation be liable for penalties or penalty clauses of any description or for indemnification of Purchaser or others for costs, damages, or expenses arising out of or related to the Equipment and/Services.
9. Laws and Regulations
THG Automation does not assume any responsibility for compliance with federal, state or local laws and regulations, except as expressly set forth herein, and compliance with any laws and regulations relating to the operation or use of the Equipment or Software is the sole responsibility of the Purchaser. All laws and regulations referenced herein shall be those in effect as of the Proposal date. In the event of any subsequent revisions or changes thereto, THG Automation assumes no responsibility for compliance therewith. If Purchaser desires a modification as a result of any such change or revision, it shall be treated as a change per Article 4. Nothing contained herein shall be construed as imposing responsibility or liability upon THG Automation for obtaining any permits, licenses or approvals from any agency required in connection with the supply, erection or operation of the Equipment.
10. Force Majeure
THG Automation shall neither be liable for loss, damage, detention or delay nor be deemed to be in default for failure to perform when prevented from doing so by causes beyond its reasonable control including but not limited to acts of war (declared or undeclared), Acts of God, fire, strike, labor difficulties, acts or omissions of any governmental authority or of Purchaser, compliance with government regulations, insurrection or riot, embargo, delays or shortages in transportation or inability to obtain necessary labor, materials, or manufacturing facilities from usual sources or from defects or delays in the performance of its suppliers or subcontractors due to any of the foregoing enumerated causes. In the event of delay due to any such cause, the date of delivery will be extended by period equal to the delay plus a reasonable time to resume production, and the price will be adjusted to compensate THG Automation for such delay.
11. Cancellation
Any order may be cancelled by Purchaser only upon prior written notice and payment of termination charges, including but not limited to, all costs identified to the order incurred prior to the effective date of notice of termination and all expenses incurred by THG Automation attributable to the termination, plus a fixed sum of ten (10) percent of the final total price to compensate for disruption in scheduling, planned production and other indirect costs.
12. Termination
No termination by Purchaser for default shall be effective unless, within fifteen (15) days after receipt by THG Automation of Purchaser’s written notice specifying such default, THG Automation shall have failed to initiate and pursue with due diligence correction of such specified default.
13. Assignment
Any assignment of this Agreement or of any rights or obligations under the Agreement without prior written consent of THG Automation shall be void.
14. Resale
If Purchaser resells any of the Equipment, the sale terms shall limit THG Automation’ liability to the buyer to the same extent that THG Automation’ liability to Purchaser is limited hereunder.
15. Entire Agreement
This Agreement constitutes the entire agreement between THG Automation and Purchaser. There are no agreements, understandings, restrictions, warranties, or representations between THG Automation and Purchaser other than those set forth herein or herein provided.
For questions about these terms and conditions, contact us at [email protected] or call (317) 593-5575.