1. General
These Terms and Conditions (these “Terms and Conditions”) are incorporated into and made a part of the associated Panatrol Co. Inc. (“Panatrol”) Agreement between Buyer and Seller (the “Agreement”) and any Orders agreed to thereunder (each, an “Order”). The Proposal, these Terms and Conditions, and any associated Orders are referred to collectively herein as the “Agreement.” These Terms and Conditions set forth the terms and conditions governing the sale of Equipment contemplated by the Agreement. In the case of any conflict between the terms of the Agreement, these Terms and Conditions, and any associated Order, the terms of the Proposal will take precedence over the terms of these Terms and Conditions, and the terms of these Terms and Conditions will take precedence over the terms of any Order.
1.1 - The terms set forth herein are the sole terms and conditions on which any Order under the Agreement will be accepted. Seller’s acceptance of Buyer’s Order will not constitute an acceptance of printed provisions on Buyer’s order form which are inconsistent with or additional to these Terms and Conditions unless specifically accepted in writing by Seller.
1.2 - Panatrol is the “Seller” for all transactions under the Agreement. Any person purchasing or offering to purchase goods and Equipment from Seller is herein referred to as the “Buyer”. The goods sold by Seller are herein referred to as “Equipment”.
1.3 - There will be no contract between the parties unless and until there is an Agreement, accepted by both Buyer and Seller. No supplementary agreement or Order between the parties will be binding on or enforceable against Seller unless said agreement or Order is accepted in writing by Seller. The Equipment which Seller will deliver are those stated in the Agreement.
1.4 - The Agreement includes only such equipment, products, accessories, and work as specified therein.
1.5 - Buyer represents and warrants that neither it nor any of its customers or end-users of the Equipment is a person or entity that is the subject of any applicable trade or economic sanctions law or regulation. Buyer, upon request by Seller, shall provide such information as Seller requires to verify that neither Buyer, nor any of its customers or the end-users of the Equipment, is a person or entity that is the subject of any applicable trade or economic sanctions law or regulation.
1.6 - Changes or Cancellation in orders are only effective upon acceptance of the same by Seller.
Quotations, Drawings and Descriptive Documents.
2.1 - All quotations and accompanying drawings, specifications, blueprints, brochures, measurements and other material furnished by Seller used by Buyer in the preparation of the Agreement are not binding on Seller.
2.2 - All drawings, specifications, blueprints, measurements and other material furnished by Seller to Buyer, whether or not used by Buyer in preparation of the Agreement, will always remain the property of Seller. Said drawings, blueprints, measurements and other material furnished by Seller to Buyer will not be used by Buyer in any manner and will not be copied, reproduced, transmitted or communicated by any person to a third party, without the prior written consent of Seller. In no event will Seller provide Buyer with manufacturing drawings of the Equipment.
2.3 - If the parties fail to enter into and execute an Agreement, all drawings, blueprints, measurements, and all other material furnished by Seller will be returned promptly to Seller by Buyer.
Delivery, Title and Risk of Loss or Damage.
Unless otherwise stated, the goods will be boxed or crated as Seller may deem proper for protection against normal handling, and extra charge will be made for preservation, waterproofing and similar added protection of goods.
3.1 - Seller will make commercially reasonable efforts to meet any dates of delivery set forth in the Agreement but shall not be bound thereto. Seller may, at its option, make partial deliveries in this regard.
3.2 - Seller will in no event be liable for delay or the failure to make delivery, and Seller’s performance under this Agreement will be excused, if one or more of the following events occurs or causes delay or failure to make a delivery by Seller (caused indirectly or directly or in any manner): fires; floods; accidents; riots; accidents; acts of God; war; invasion or military action; an act or order from a governmental entity that renders performance illegal or impossible (including through regulation or other requirements); public enemy; epidemics, pandemics, or public health emergencies as declared by the World Health Organization or the Department of Health and Human Services of the United States; quarantine restrictions; embargoes; strikes; labor difficulties; shortage of labor; fuel; power; materials or supplies; transportation delays or any other cause or causes (whether or not similar in nature to any of those specified herein) either beyond its reasonable control or which it cannot remedy without great economic hardship (each a “Force Majeure Event”). Seller shall provide reasonable notice to Buyer upon the occurrence of a Force Majeure Event and Buyer under these circumstances has no right to reject acceptance of Equipment delivered pursuant to an Order.
3.3 - If completion or delivery of Equipment is delayed due to the fault of Buyer, Buyer will be charged for storage and other costs incurred due to delays of the delivery of Equipment. Seller will be entitled to dispose of Equipment if Buyer delays delivery beyond a reasonable period of time. Determination of what constitutes a reasonable period of time is at Seller’s discretion.
3.4 - Title and risk of loss or damage to each piece of Equipment shall pass from Seller to Buyer upon delivery to carrier at the designated FOB point.
3.5 - Title to and right of possession of any software shall remain with Seller or its licensor, except that Buyer shall have the non-exclusive right and license to use the software for the purpose of operating the Equipment so long as no breach of the Agreement has been made by Buyer and all payments due to Seller have been paid. Nothing in the Agreement shall be construed as giving Buyer any right to sell, assign, lease, sublicense, or in any other manner transfer or encumber any software licensed to Buyer hereunder or as limiting Seller’s or its licensors’ rights to license to the software to any third party or to use, modify, sell, or assign the software in any manner. Buyer shall not edit, decompile, reverse engineer, or otherwise modify or attempt to reproduce any software licensed to Buyer hereunder.
Prices and Payment.
4.1 - The price stated in the Agreement will include the cost of only such packing, which, in the sole opinion of Seller, will provide sufficient protection for Equipment during shipment.
4.2 - Unless otherwise stated in the Agreement, (a) the purchase price for Equipment for which Seller has not agreed to provide start-up and commissioning will be payable as follows: 40% upon execution of the Order, and 60% no later than the time of delivery to the FCA or DDP point; and (b) the purchase price for Equipment for which Seller has agreed to provide start-up and commissioning will be payable as follows: 40% upon execution of the relevant Order; 50% no later than the time of delivery to the FCA or DDP point; and 10% upon completion of start-up and commissioning.
4.3 - The purchase price of Equipment will be payable, without deduction of any kind, within such period of time and according to such terms as provided in the Agreement. If payments are made late, Seller will levy a monthly service charge which will not exceed one percent (1%) of the total amount due; or such maximum monthly charge as is allowed under applicable law, whichever is less. Acceptance of such service charge by Seller will not constitute a waiver of any right which Seller has because of non-payment by Buyer.
Claims and Limited Warranty.
5.1 - Provided Buyer complies with the provisions of Section 5.7 hereof, Seller warrants only the Equipment it specifically assumes in writing to be free from defects in material and workmanship for twelve (12) months with respect to mechanical, and electrical, components following the delivery of Equipment to Buyer. Upon delivery of Equipment to Buyer, Buyer will inspect Equipment and will immediately notify Seller in writing as to any and all claims that Equipment delivered are incomplete, do not conform to the Agreement or are otherwise defective. Claims based on defects which are not determinable immediately must be made in writing to Seller within ten (10) business days after the discovery thereof, and within ten (10) days of the expiration of an applicable warranty. Claims which do not follow these procedures are deemed waived by Buyer. Seller’s liability under this warranty is limited to the repair or replacement of defective Equipment. Buyer shall not withhold any payment due to Seller. Defective Equipment shall be returned to Seller, freight prepaid, and replaced by Seller. No Equipment may be returned without Seller’s prior approval.
5.2 - Seller must be given an opportunity to make necessary investigation and inspection of any asserted claims.
5.3 - Seller will not be liable for any damage to or defects in Equipment arising while Equipment is in the hands of any third party.
5.4 - Buyer will indemnify, defend, and hold Seller harmless from any claims, losses, liabilities, damages, fines, penalties, or expenses (including but not limited to reasonable attorneys’ fees and costs) arising out of or relating to any activities of Buyer with respect to the Equipment including, but not limited to, Buyer’s installation and use of the Equipment.
5.5 - The warranty contained herein will inure only to the benefit of Buyer and may not be transferred to any other person or company. Should Buyer at any time attempt to transfer this warranty to another person or company, Seller’s liability under this warranty will cease.
5.6 - Seller will not be liable for any loss, damage or injury of any nature, whether direct, indirect, incidental, consequential or special, in connection with or resulting from the installation or use of any and all Equipment. Seller’s liability shall be limited to repair or replacement of Seller’s Equipment, F.O.B., its plant. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY UNDER THE AGREEMENT, WHETHER IN CONTRACT, TORT, OR EQUITY, EXCEED THE PURCHASE PRICE ACTUALLY PAID TO SELLER BY BUYER UNDER THE AGREEMENT.
5.7 - Seller shall not be liable for defects caused by, or damage resulting from: improper use or operation; improper or insufficient maintenance; use or connection of machinery, equipment or software not supplied by Seller; technical interference in Equipment done by other than Seller’s technicians; insufficient or improper supply of power, water, refrigerant, air, connections or cabling; use of Equipment outside its intended application or physical specifications; or violence, overload, fire, flood, excessive mains noise, excessive EMI/RFI, welding lighting or similar instances. No warranty shall apply to Equipment and accessories manufactured by others and are further limited to other manufacturers warranties, if any.
5.8 - THE WARRANTY SET FORTH HEREIN IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE WARRANTY CONTAINED HEREIN SHALL APPLY IF AND ONLY IF SELLER STARTS UP AND COMMISSIONS THE EQUIPMENT.
Security Agreement.
6.1 - Buyer hereby grants Seller a purchase money security interest in all Equipment sold by Seller, and in the proceeds thereof, said security interest to remain in full force and effect until all invoices due and owing for such Equipment by Buyer to Seller have been paid in full. Buyer specifically agrees that Seller may file one or more financing statements pursuant to the Uniform Commercial Code and may execute all other documents necessary to perfect Seller’s security interest, and hereby grants to Seller power of attorney to execute and sign such financing statements, and other documents necessary to effectuate and perfect such security interest, in Buyer’s name. Seller shall have all rights pursuant to the Uniform Commercial Code to enforce any breach in payment or performance by Buyer, including, but not limited to, the right of stoppage in transit and the right to foreclose on and sell the Equipment, in addition to all other rights, at law or in equity, to enforce the terms of this Agreement.
6.2 - Buyer will reimburse Seller for all of the costs incurred by Seller in connection with the exercise of Seller’s rights under this Security Agreement, including reasonable legal fees and costs; provided, however, that Buyer will not reimburse Seller for costs incurred for the preparation and filing of financing statements pursuant to the Uniform Commercial Code.
Start up and Commissioning.
7.1 - Should Seller have agreed in the Agreement to undertake the start-up and commissioning of Equipment, Seller’s obligation will be limited to the start-up and commissioning of the Equipment in a workman-like manner. Buyer shall be responsible for installation and Buyer will have made all preparations necessary for Buyer’s installation including, but not limited to, strengthening foundations and walls, providing openings in floors, wall or roofs for passage of Equipment, and installing utility and plumbing lines necessary for the installation and operation of Equipment.
7.2 - All costs of start-up and commissioning will be as specified in the Agreement. Unless otherwise provided in the Agreement, Start-up and commissioning time includes travel for the initial trip only. If commissioning is not completed for any reason, Buyer will pay subsequent travel costs incurred for any remaining commissioning days. Any extra time or additional trips incurred because of delays caused by Buyer shall be invoiced as an addition.
7.3 - When applicable, a running-in and test period must be expected in connection with the start-up and commissioning of any data systems, associated software and integrated systems. This period is normally 12 weeks from the date of completed commissioning. It is the responsibility of Buyer to try out the total system to detect possible defects of the software or system units, when those are in operation under the conditions prevailing in Buyer’s plant and to report such possible defects to Seller which in turn Seller will correct or adjust.
Arbitration.
8.1 - It is mutually agreed that any controversy, dispute, or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration in accordance with the Missouri Uniform Arbitration Act (Chapter 435) before a single arbitrator mutually agreeable to the parties. If the parties are unable to agree on a single arbitrator, each party shall appoint an arbitrator and the two arbitrators shall appoint a third arbitrator who shall conduct the proceeding. The costs of arbitration will be borne by the parties as determined by the arbitrator.
Cancellation.
9.1 - The Agreement and any Orders thereunder will be cancellable only on such terms as may be set forth in the Agreement. Unless the Agreement specifies otherwise, in the case of any permitted cancellation by Buyer, Seller will not be required to return any Deposit to Buyer.
9.2 - Seller, in its sole discretion, may require Buyer, at Buyer’s expense, to provide additional U.S. governmental approval of the sale and export of Equipment. Seller, in its sole discretion, may terminate this Agreement without any liability if the transaction becomes prohibited due to the imposition of any applicable trade or economic sanctions law or regulation (directly or indirectly), or if Buyer or any of Buyer’s customers or end-users of Equipment becomes the subject of any applicable trade or economic sanctions law or regulation.
Miscellaneous.
10.1 - The purchase price for the Equipment set forth in the Agreement is exclusive of applicable federal, state, and local taxes levied on the sale, installation or use of Equipment. Such taxes will be added to the purchase price at the direction of the Buyer and will be paid by Buyer.
10.2 - Buyer at its sole cost and expense will obtain all permits, licenses, or authorizations necessary for the installation and use of the Equipment.
10.3 - Seller makes no representation as to the applicability of federal, state, or local laws, codes, ordinances, statutes, and regulations (“Applicable Law”) to the Equipment. Buyer bears sole and full obligation to ascertain and comply with Applicable Law with regard to the use of Equipment.
10.4 - No agent, salesperson or distributor has any authority to obligate Seller with regard to any terms or conditions not set forth in writing in the Agreement.
10.5 - Should any single provision or subparagraph of the Agreement be deemed invalid or unenforceable by an arbitrator or a court of competent jurisdiction, such arbitrator or court will have the power to modify such single provision or subparagraph to the smallest degree required to render such provision or subparagraph valid and enforceable, or (if modification is not sufficient to remedy the invalidity or unenforceability) to interpret the Agreement as if such provision or subparagraph were deleted, with the balance of the Agreement remaining binding and enforceable in accordance with its terms and conditions.
10.6 - Seller reserves the right, at any time, to make modifications to designs and specifications of purchased Equipment provided the modifications do not materially reduce Buyer’s reasonably anticipated possibilities of utilizing the purchased Equipment.
10.7 - The Agreement will be governed by the Laws of the State of Missouri and all disputes herein which require judicial determination (to enforce any award resulting from, or to the extent not subject to, arbitration under Section 8) shall be submitted to the courts of the State of Missouri (or federal courts sitting in such state) for determination, which courts shall have exclusive jurisdiction of such matters. Buyer and Seller each agree that jurisdiction and venue are proper in such courts with respect to all disputes arising hereunder.
10.8 - A party’s failure to insist upon or enforce strict compliance with respect to any aspect of the Agreement shall not be deemed a waiver or relinquishment to any extent of any of such party’s rights under the Agreement, which shall remain in full force and effect. Waiver of a right under the Agreement shall not constitute a waiver of any other right, waiver or default under the Agreement.
10.9 - The Agreement, including the Proposal, these Terms and Conditions, and any agreed Orders, constitutes the entire agreement of the parties with respect to the subject matter thereof, and supersedes all prior agreements, representations, and understandings with respect to such subject matter.
10.10 - The Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which, taken together, shall constitute one and the same fully executed agreement. The parties agree to accept electronic and facsimile signatures as originals.
10.11 - Buyer affirmatively states that as concerning the product which he has requested the Seller to manufacture, that the plans and specifications for said product are those of the buyer. Seller has merely been requested to manufacture the product in accordance with Buyer’s plans and specifications. Seller warrants that these plans and specifications do not infringe upon any patents relating to said product being manufactured or any part contained in said product. In the event any party brings any action of any type in any court of competent jurisdiction related to patent infringement as to the manufacture, sale, or otherwise related to said product, Buyer agrees to hold Seller harmless as to any such action and further to pay any legal fees of Seller related to any defense of a patent infringement suit
11 - All proposals and any and all work, services, and products provided by Panatrol are subject to these Terms and Conditions. The issuance of a purchase order or the authorization to commence work based on any Proposal will be recognized as your acceptance of the offer by Panatrol to provide the products and services as set forth in the Proposal, including all terms and conditions set forth herein.