1. Interpretations and Definitions
Unless the context clearly dictates otherwise, the following terms have the following meanings in these Terms and Conditions:
“Business Day” refers to a day that is not a Saturday, Sunday, or a bank holiday;
“Commencement Date” refers to the day the Contract officially begins, as stated in the schedule;
“Confidential Information” refers, in relation to either Party, any information that the other Party discloses to that Party under or in connection with this Agreement (whether orally, in writing, or through any other medium, and regardless of whether the information is specifically stated to be confidential or marked as such);
“Contract” refers to the agreement made in accordance with these Terms and Conditions for the sale and purchase of the Goods and the provision of the Services;
“Contract Price” refers to the cost of the goods as specified in the contract;
“Customer” refers to the person who accepts the Supplier’s quotation or offer for the sale of the Goods and provision of the Services, or whose order for the Goods and Services the Supplier accepts;
“Delivery Date” refers to the delivery date specified in the customer’s or reseller’s order and acknowledged by the supplier;
“End User” refers to the delivery date specified in the customer’s or reseller’s order and acknowledged by the supplier;
“Goods” refers to the items that the Supplier is required to supply in accordance with these Terms and Conditions, including any installment of those items or any parts for them;
“Month” refers to a month in the calendar;
“Reseller” refers to the implied business that resells goods or services to a customer;
“Services” refers to the services that will be offered to the customer or reseller in accordance with the detailed timetable;
“Supplier” refers to Automatione Inc., a company registered in the US at 5910 Rice Creek Pkwy, Shoreview, MN 55126.
1.1 Unless the context clearly dictates otherwise, the following terms and conditions are referenced:
1.1.1 The term “writing” and any cognate expression applies to any communication carried out by electronic, facsimile, or other methods;
1.1.2 A reference to a law or a provision therein refers to that law or provision as amended or reenacted at the pertinent time;
1.1.3 The phrase “these Terms and Conditions” refers to them as well as any Schedules that may have been added or modified at the period in question;
1.1.4 A schedule to these terms and conditions is called a Schedule; and
1.1.5 The terms “clause” or “paragraph” refer to a clause (other than a clause in a schedule) of these terms and conditions or a paragraph of the applicable schedule.
1.1.6 The parties to these terms and conditions are referred to as “Party” or “the Parties.”
1.2 The headers used in these Terms and Conditions are merely for convenience and have no bearing on how they should be interpreted.
1.3 Words that convey a singular number must also convey a plural number, and vice versa.
1.4 Any mention of one gender must also refer to the other.
2. Terms of Service and Sale
2.1 Unless specifically authorized in writing by the Supplier, no claims about the Goods or Services may be made by the Supplier’s employees or agents. The Customer or Reseller recognizes that it does not rely on and waives any claim for breach of any such representations that are not so confirmed in entering into the Contract.
2.2 These terms and conditions cannot be changed unless both the supplier and the authorized representatives of the customer or reseller agree to the change in writing.
2.3 The Supplier may make changes to the Goods and Services described in sales material, price lists, and other documents at any time without prior notice, and such changes do not constitute legally binding offers to sell the Goods. No contract for the sale of the Goods and Services shall be binding upon the Supplier unless the Supplier has accepted an order placed by the Customer or Reseller or has provided a quotation that expressly constitutes an offer to sell the Goods and Services, whichever occurs first:
2.3.1 The written acceptance from the Supplier;
2.3.2 the Goods’ delivery;
2.3.3 offering the Services; or
2.3.4 the invoice from the supplier.
2.4 The Supplier shall have the right to amend any typographical, clerical, or other inadvertent mistakes or omissions in any sales brochure, quotation, price list, acceptance of offer, invoice, or other document or information supplied by the Supplier without incurring any obligation.
3. The Products
3.1 The Supplier shall not be deemed to have accepted an order from the Customer or Reseller unless and until the Supplier’s authorized representative so confirms in writing.
3.2 Unless otherwise specified in the Customer’s or Reseller’s order (and provided that such variation(s) is/are accepted by the Supplier), the specification for the Goods shall be that set forth in the Supplier’s sales documentation. Only the minimum number of units of the Goods specified in the Supplier’s price list or multiples of those units will be supplied. Orders for amounts beyond these will be adjusted appropriately.
3.3 The Supplier disclaims any obligation resulting from the use of any illustrations, pictures, or descriptions in any catalogs, brochures, price lists, or other documents published by the Supplier. They are only meant to serve as general guidelines.
3.4 Where the Goods are being supplied to the Customer’s or Resellers’ specifications, the Supplier reserves the right to make any specification changes to the Goods that are necessary to comply with any applicable safety, statutory, or regulatory requirements or that do not materially affect their quality or performance.
3.5 The Customer or Reseller may not cancel any order that the Supplier has accepted without the Supplier’s prior written consent and only under the condition that the Customer or Reseller will fully indemnify the Supplier for any loss (including loss of profit), costs (including the cost of all labor and materials used), damages, charges, and expenses incurred as a result of the cancellation.
4. The Services.
4.1 Beginning on the Commencement Date, the Supplier must render the Services specifically described in the quotation or set schedule in exchange for payment of the sum in line with Clauses 5 and 6.
4.2 The Supplier will carry out the Services listed in the quotation or stipulated schedule with reasonable care and skill.
4.3 The Supplier must use reasonable efforts to fulfill the responsibilities outlined in the Contract, although time is not of the essence when carrying them out.
5.1 The cost of the goods and services shall be that stated in the Supplier’s quotation in effect as of the date of acceptance of the order from the Customer or Reseller, or such other cost as may be agreed upon in writing between the Supplier and the Customer or Reseller.
5.2 The price that the Supplier has given for the Goods is only good for 30 (Thirty) days, or for any shorter period the Supplier may specify.
5.3 The Supplier reserves the right to raise the price of the Goods and/or Services at any time before delivery or provision to reflect any increase in the Supplier’s costs resulting from any factor outside the Supplier’s control, including, without limitation, any foreign exchange fluctuation, currency regulation, change in duties, significantly higher costs of labor, materials, or other costs. The Supplier will notify the Customer or Reseller in writing of any such increase.
5.4 All prices are inclusive of the Supplier’s fees for packaging and shipping, unless expressly indicated otherwise in the terms of any quotation, set schedule, or price list of the Supplier, or unless otherwise agreed in writing between the Customer or Reseller and the Supplier.
5.5 Any relevant value-added tax, excise tax, sales tax, or other similar levy imposed or assessed by any competent fiscal body in relation to the Goods and Services is not included in the price and must be paid separately by the Customer or Reseller to the Supplier.
6.1 The Supplier shall invoice the Customer or Reseller for the price of the Goods and Services on or at any time after delivery of the Goods and/or the Provision of the Services (as applicable), unless, in the case of Goods, the Goods are to be collected by the Customer or Reseller or the Customer or Reseller erroneously fails to take delivery of the Goods, in which case the Supplier shall invoice the Customer or Reseller for the price of the Goods and Services on or at any time
6.2 Within 30 (Thirty) Business Days of the date of the Supplier’s invoice or in accordance with any other credit terms that may have been written into the Contract between the Customer or Reseller and the Supplier, the Customer or Reseller shall pay the price of the Goods (less any discount or credit allowed by the Supplier, but without any other deduction, credit, or set-off). Even if delivery or provision has not yet occurred or ownership of the goods has not yet been transferred to the customer or reseller, payment must be made on time. The contract stipulates that time is of the importance for price payment. Payment receipts will only be provided upon request.
6.3 The Supplier must receive all payments as specified on the form of acceptance or invoice the Supplier issues.
6.4 The Supplier is not required to accept orders from any Customers, Resellers, or purchasers if they have not given the Supplier references that the Supplier finds to be satisfactory. No additional goods or services will be delivered or provided to the Customer or Reseller other than against payment in full in cash, and notwithstanding clause 6.2 of these conditions, all amounts owed by the Customer or Reseller to the Supplier will remain due and payable in full at all times if the Supplier is ever unsatisfied with the Creditworthiness of the Customer or Reseller.
7. Performance and Deliveries
7.1 The Supplier shall deliver the Goods to the address specified in the quotation or specified schedule, or, if no address is so specified, the Customer or Reseller may pick up the Goods from the Supplier’s premises at any time after the Supplier has notified the Customer or Reseller that the Goods are prepared for collection.
7.2 The Delivery Date is merely an estimate, and delivery time is not required unless otherwise specified in writing by the Supplier. Upon giving the Customer or Reseller sufficient notice, the Supplier may deliver the Goods before the Delivery Date.
7.3 The Supplier shall have the right, upon written notice to the Customer or Reseller, to store or arrange for the storage of the Goods, and then, notwithstanding the provisions of subclause 7.1, the risk in the Goods shall pass to the Customer or Reseller in the event that the Customer or Reseller fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instructions, documents, licenses, consents, or authorizations required to enable the Goods
7.4 Beginning on the Commencement Date, the Supplier shall render the Services specifically described in the quotation or specified schedule in exchange for the fee to be paid in accordance with these Terms and Conditions and the quote or specified schedule.
8. Goods and services that are not delivered
8.1 If the Supplier, other than for causes beyond its reasonable control, the Customer’s, Resellers’, or its carrier’s fault, fails to deliver the Goods or render the Services, or any of them, on the Delivery Date (or Commencement Date, as applicable):
8.1.1 The Supplier shall not be liable for such late delivery if the Supplier delivers the Goods and/or renders the Services at any time thereafter;
9. Title Risk and Retention
9.1 The Customer or Reseller will become responsible for any loss or damage to the Goods when:
9.1.1 When the supplier notifies the customer or reseller that the goods are ready for pickup in the case of deliveries to be made at the supplier’s location;
9.1.2 if the goods are being delivered somewhere other than the supplier’s premises, the delivery time or, if the customer or reseller fails to accept delivery of the goods in a timely manner, the delivery time offered by the supplier; or
9.1.3 When the Supplier tells the Customer or Reseller that the installation of the Goods is complete in the case of Goods being installed by the Supplier.
9.2 Legal and beneficial title to the goods shall not pass to the customer or reseller until the supplier has received in cash or cleared funds payment in full for the goods, regardless of delivery and the passing of risk in the goods or any other provision of these Terms and Conditions.
9.3 Despite Subclause 9.2, legal and beneficial title to the Goods does not pass to the Customer or Reseller until the Supplier has been paid in full for the Goods and any other goods they supplied, in cash or cleared funds, and the Customer or Reseller has paid off any outstanding debts to the Supplier, regardless of how they came about.
9.4 The Customer or Reseller shall be in possession of the Goods as bailee for the Supplier until payment has been made to the Supplier in accordance with these Conditions and title in the Goods has passed to the Customer or Reseller. The Customer or Reseller shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as having been supplied by the Supplier, and shall insure the Goods against all reasonable risks.
9.5 The Customer or Reseller is not permitted to pledge or otherwise charge any of the Goods that are still the property of the Supplier as security for any debt; however, if either party takes such action, all money owed to the Supplier by the Customer or Reseller will immediately become due and payable, without affecting the Supplier’s other rights or remedies.
9.6 The Supplier retains the right to reclaim any goods over which it has retained title without giving prior notice. The Customer or Reseller hereby grants the Supplier unconditional permission to enter the Customer’s or Reseller’s premises during regular business hours in order to reclaim the Goods in which the Supplier retains title and to inspect the Goods to confirm that they are stored and identified in accordance with subclause 9.4’s requirements.
9.7 The right of the Customer or Reseller to possess the Goods in which the Supplier retains legal and beneficial title expires in the following circumstances:
9.7.1 Any substantial breach of the Customer’s or Reseller’s responsibilities under these Terms and Conditions is committed or allowed to happen;
9.7.2 The Client or Reseller is the subject of, or comes within the jurisdiction of, a bankruptcy order or makes use of, any other statutory remedy for the relief of insolvent debtors;
9.7.3 The Customer or Reseller calls a meeting of creditors, goes into voluntary or involuntary liquidation, appoints a receiver, manager, administrator, or administrative receiver to oversee its assets or undertaking, or any portion thereof; any paperwork is filed with the court for the appointment of an administrator in respect of the Customer or Reseller; or the Customer, Reseller, or any of its distributors gives notice of its intention to appoint an administrator.
10.1 Without the previous approval of the Customer or Reseller, the Supplier may assign the Contract or any portion of it to any person, firm, or company.
10.2 Neither the Customer nor the Reseller may assign the Contract or any portion of it without the Supplier’s prior written consent.
11. Default by Customers or Resellers
11.1 Without limiting any other rights or remedies the Supplier may have, the Supplier shall be entitled to the following in the event that the Customer or Reseller fails to pay any amount due by the due date:
11.1.1 Cancel the order and stop providing the Customer or Resellers with Goods and Services going forward;
11.1.2 The Supplier may (regardless of any alleged appropriation by the Customer or Reseller) apply any payment made by the Customer or Resellers to such Goods and/or Services (or the Goods and/or Services supplied under any other contract between the Customer or Reseller and the Supplier) as the Supplier may think fit; and
11.1.3 until full payment is received, charge the customer or reseller interest on any unpaid balance (both before and after any judgment) at a rate of 8.5 percent annually above the Bank of England base rate. (a part of a month being treated as a full month for the purpose of calculating interest).
11.2 If the following scenario occurs:
11.2.1 A violation of the Contract occurs when the Customer or Reseller neglects to carry out or observe any of its contractual obligations;
11.2.2 A receiver is appointed or an encumbrancer takes possession of any property or assets owned by the customer or resellers;
11.2.3 The Customer or Reseller stops doing business, or threatens to do so;
11.2.4 The Supplier notifies the Customer or Reseller when it reasonably suspects that one of the aforementioned occurrences is about to happen in connection to the Customer or Reseller.
11.3 If clause 11.2 applies, the supplier is free to cancel the contract or halt any further deliveries under the contract without incurring any liability to the customer or reseller. If the goods have already been delivered but the price has not been paid, the price will also become immediately due and payable regardless of any prior agreement or arrangement to the contrary.
12.1 The Supplier will not be liable for any loss of profit or any indirect, special, consequential loss, damage, costs, expenses, or other claims (whether caused by the Supplier’s servants or agents or otherwise) that arise out of or in connection with the supply of the Goods and Services.
12.2 The Customer or Reseller is responsible for holding the Supplier harmless from any losses or damages to equipment (including that owned by third parties) that are brought on by them, their agents, or their employees.
12.3 When the customer or reseller consists of two or more people, all references to such terms throughout shall refer to all such people. Such a customer or reseller shall be jointly and severally liable for all obligations.
12.4 If the Supplier delays or fails to perform any of its obligations due to an event outside of the Supplier’s reasonable control, the Supplier shall not be liable to the Customer or Reseller or be deemed to be in violation of these terms and conditions.
12.5 The Supplier’s obligation is not limited or excluded by these terms and conditions in any way:
12.5.1 for wrongful death or other serious harm brought on by the Supplier;
12.5.2 for any issue for which the Supplier’s attempt or exclusion of liability would be unlawful; or
12.5.3 for fraud or fraudulent misrepresentation.
12.6 While keeping in mind the other clause 12 provisions:
12.6.1 The Contract Price shall be the sole and exclusive maximum liability of the Supplier in connection with the performance or projected performance of the Contract, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution, or otherwise;
13.1 All notices provided for in these terms and conditions and the contract must be made in writing and will be deemed given if signed by, or on behalf of, a party’s properly authorized officer.
13.2 The following constitutes proper notice:
13.2.1 when delivered, if sent by messenger (including registered mail) and delivered during the recipient’s regular business hours; or
13.2.2 When sent, whether a successful transmission report or return receipt is generated by fax or email; or
13.2.3 if sent via national ordinary mail with postage paid, on the fifth business day after posting; or
13.2.4 If sent by airmail with postage paid, on the tenth business day after mailing.
13.3 All notices under this Agreement must be sent to the other Party at their most recent mailing address, email, or facsimile number.
14. Force Majeure.
When an event occurs that is beyond a Party’s reasonable control, that Party shall not be held responsible for any failure or delay in fulfilling its obligations. Such factors may include, but are not limited to, power outages, problems with Internet service providers, strikes or other forms of organized labor, riots or other civil unrest, fires, floods, hurricanes, earthquakes, acts of terrorism or war, governmental action, or any other occurrence beyond the Party’s control.
15. Intellectual Property.
15.1 All materials, products, and services that each party owned before the Contract’s effective date shall continue to be their exclusive property.
15.2 The party with such intellectual property rights shall give to the other a royalty-free, non-exclusive, non-assignable license, which shall cease upon the termination of the Contract, insofar as is necessary for the fulfillment of the Contract.
15.3 All written materials, products, and services produced by the Supplier under the Contract shall be the Supplier’s sole property.
15.4 The Customer or Reseller acknowledges and agrees that, in cases where the Services include or include software and programming, the Supplier owns all copyrights and other intellectual property rights in the information, software, and materials contained therein, as well as in the way they are organized and programmed, or that they are licensed to use them from third parties.
15.5 The Supplier hereby authorizes the Customer or Reseller to use any software for the exclusive purpose of operating the Goods supplied under this Contract, on a non-exclusive, non-assignable, and royalty-free basis.
15.6 Unless otherwise specified in writing, neither the Customer nor the Reseller shall
15.6.1 Reverse compile, modify, or duplicate the entire or any portion of the software;
15.6.2 Use the program on behalf of any third party or make it available to them in any other way; assign, transfer, sell, lease, rent, or charge;
15.6.3 modify or remove any copyright or other proprietary notices from the software.
15.6.4 Have access to or receive the source code or compiled code for programs.
The Parties concur that neither Party’s omission to insist on compliance with any provision of the Contract or these Terms and Conditions shall constitute a waiver of that Party’s right to later insist on compliance with that or any other provision. This failure won’t be taken as a waiver of any earlier or later breaches, and it won’t be considered a continuous waiver.
The Parties acknowledge and agree that any provision of these Terms and Conditions or the Contract that is determined to be unlawful, invalid, or otherwise unenforceable shall be deemed severed from the remaining elements of these Terms and Conditions. (and, by extension, the Contract). The remainder of these as well as the Contract must be enforceable and legitimate.
18. Jurisdiction and Law
18.1 The laws of the United States shall govern these terms and conditions as well as the contract (as well as any non-contractual issues and obligations arising from or related therewith).
19.1 The supplier must provide the reseller with any manufacturer warranties in full; the reseller is then responsible for providing the warranty to the end user.
19.2 The Reseller must be contacted with any warranty requests made by the end user, and they must confirm that the warranty period is still in effect.
19.3 If the supplier is asked for proof of purchase, they will give it to the manufacturer immediately.