1. MODIFICATIONS OF SALES TERMS
Any Terms and Conditions contained in any purchase order or other form or communication from PROCON’s customer which are additional to or different from these Terms and Conditions shall be deemed rejected by PROCON Products unless expressly accepted in writing by PROCON. In general, no modification, amendment, waiver, or other change of any of these Terms and Conditions and/or in attachments hereto (“Terms and Conditions”), or any of PROCON’s rights or remedies thereunder, shall be binding on PROCON unless expressly accepted in writing by an authorized representative of PROCON. No course of dealing, custom or course of performance shall be relevant to explain or supplement any of these Terms and Conditions. In cases of conflict between these Terms and Conditions and those contained on any attachments hereto, the latter shall control.
2. ACCEPTANCE OF ORDERS
Acceptance by PROCON of Buyer’s purchase order(s) is expressly conditioned by Buyer’s assent to these Terms and Conditions. Buyer will be deemed to have assented to such Terms and Conditions unless PROCON receives written notice of any objection within fifteen (15) days after Buyer’s receipt of these Terms and Conditions and in all events prior to any delivery or other performance by PROCON of Buyer’s order.
Quotations by PROCON shall be deemed to be offers by PROCON to sell the equipment described therein subject to these Terms and Conditions and acceptance of such offers is expressly limited to acceptance of Buyer of all of these Terms and Conditions within thirty (30) days from the date of the quotation. Prices are only valid for thirty (30) days from quote date. Purchase orders submitted by Buyer for the equipment quoted by PROCON shall be subject to and will be deemed to constitute acceptance of these Terms and Conditions. All purchase orders will be subject to approval by PROCON.
4. PRICES; PRICE CHANGES
All prices are ExWorks/FOB PROCON’s plant or other point of shipment designated by PROCON, unless otherwise specified in the quote or order acknowledgment. Prices are subject to change without notice. PROCON reserves the right, with or without notice, to change the price of the equipment to reflect any change in the cost of manufacturing or shipping, any change in delivery dates, quantities or specification for the equipment requested by Buyer, or any delay in providing PROCON with requisite information. In the event of a change in PROCON’s prices, the price for equipment unshipped will be the price in effect on the date of shipment.
In addition to any prices, Buyer shall pay the amount of any present or future manufacturers tax, retailer’s occupation tax, use tax, sales tax, excise tax, value added tax (VAT), duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between PROCON and Buyer. In the event PROCON is required to pay any such tax, fee or charge, Buyer shall reimburse PROCON therefor. If Buyer is tax exempt, Buyer shall provide PROCON at the time the order is submitted with an exemption certificate or other acceptable documentation.
6. TERMS OF PAYMENT
All orders are subject to the approval of PROCON. Terms of payment are cash in full no later than thirty (30) days from date of shipment, without discount, unless otherwise stated in a quote or order acknowledgment. If, during the period of performance of an order, the financial condition of Buyer is determined by PROCON not to justify the terms of payment specified, PROCON may demand full or partial payment in advance before proceeding with the work, or satisfactory security or guarantees that invoices will be promptly paid when due, or, at its option, without prejudice to other lawful remedies, may defer delivery or cancel the order. If delivery is deferred, the equipment may be stored as provided in Section 9 hereof and PROCON may submit a new estimate of cost for completion based upon prevailing conditions. If Buyer defaults in any payment when due, or in the event any voluntary bankruptcy or insolvency proceedings involving Buyer are initiated by or against Buyer, then the whole order price shall immediately become due and payable upon demand, or PROCON, at its option, without prejudice to its other lawful remedies, may defer delivery or cancel the order. Additionally, if Buyer fails to make any payment on the due date, PROCON may charge Buyer interest on the unpaid amount(s) on a day-to-day basis at a rate determined by PROCON, not to exceed the maximum rate allowed by law, compounded monthly.
Prompt payments shall be become due as shipments are made. If shipments are delayed by Buyer for any cause, payments shall become due from the date on which PROCON is prepared to make shipment and storage shall be at Buyer’s risk and expense as provided in Section 9 hereof. If manufacture is delayed by Buyer, for any cause, a partial payment based upon the proportion of the order completed shall become due from the date on which PROCON is notified of the delay.
7. DELIVERY: RISK OF LOSS
All sales are ExWorks/FOB PROCON’s plant or other point of shipment designated by PROCON, unless otherwise specified in the quote or order acknowledgment. Shipping dates are estimates only which are not guaranteed and are based upon prompt receipt from Buyer of all necessary shipping and other information. PROCON shall not be liable for any delay in the delivery, however caused.
PROCON reserves the right to make delivery in installments. Installments may be separately invoiced and must be paid for by Buyer when due per invoice, without regard to subsequent deliveries. PROCON also reserves the right to make delivery in advance of the quoted delivery date.
Delivery of equipment to a commercial carrier at PROCON’s plant or other loading point shall constitute delivery to Buyer, and any risk of loss and further cost and responsibility thereafter for claims, delivery, loss or damage, including, if applicable, placement and storage, shall be borne by Buyer. If equipment is delivered by PROCON’s carrier, unloading at Buyer’s dock shall constitute delivery to Buyer. Title to the equipment shall pass upon receipt by Buyer.
Claims for shortages or other errors in delivery must be made in writing to the common carrier with a copy to PROCON and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer. Claims for loss or damage to equipment in transit by common carrier must be made to the carrier and not to PROCON.
8. EXCUSABLE DELAYS FORCE MAJEURE
PROCON shall not be liable for any loss or damage as a result of PROCON’s delay in or failure of delivery or installation due to: (i) any cause beyond PROCON’s reasonable control, (ii) an act of God, explosion, flood, tempest, fire or accident; war or threat of war, sabotage, insurrection, riot, civil disturbance or requisition; acts, regulations or measures of any kind by any governmental authority; import or export regulations or embargoes; strikes, lockouts, slow-downs or other labor acts or trade disputes (whether involving PROCON employees or third party employees); power failures or breakdown in machinery; shipping or transportation delays; (iii) act of the Buyer, or (iv) inability to obtain necessary labor, materials, fuel, components, machinery, or facilities.
Should any of the aforementioned events of force majeure occur, PROCON, at its option, may cancel Buyer’s order with respect to any undelivered equipment or extend the delivery date for a period equal to the time lost because of delay. Notice of such election shall be given promptly to Buyer. In the event PROCON elects to cancel the order, PROCON shall be released of and from all liability for failure to deliver the equipment, including, but not limited to, any and all claims of any nature which Buyer might have.
If shipping or progress of the work is delayed or interrupted by Buyer, directly or indirectly, Buyer shall pay PROCON for all additional charges resulting therefrom.
Should any of the aforementioned events of force majeure occur, Procon, at its option, may cancel Buyer's order with respect to any undelivered equipment or extend the delivery date for a period equal to the time lost because of delay. Notice of such election shall be given promptly to Buyer. In the event Procon elects too cancel the order, Procon shall be released of and from all liability for failure to deliver the equipment, including, but not limited to any and all claims of any nature which Buyer might have.
If shipping or progress of the work is delayed or interrupted by Buyer, directly or indirectly, Buyer shall pay Procon for all additional charges resulting therefrom.
If the equipment is not shipped within thirty (30) days after notification has been made to Buyer that it is ready for shipping, for any reason beyond PROCON’s control, including Buyer’s failure to give shipping instructions, PROCON may store the equipment at Buyer’s risk and expense in a warehouse or upon PROCON’s premises and Buyer shall pay all handling, transportation, and storage costs at the prevailing commercial rates, promptly following PROCON’s submission of invoices for such costs.
10. WARRANTIES TO DISTRIBUTORS AND INDUSTRIAL OR COMMERCIAL CUSTOMERS
Warranty Period - PROCON warrants new products manufactured by it to be free from defects in materials and workmanship for a period of twenty-four (24) months from the date of shipment. Products rebuilt by PROCON are warranted similarly for a period of twelve (12) months from the date of factory rebuilding.
Warranty Remedies – If Buyer desires to make a claim for breach of the foregoing warranty, Buyer shall notify PROCON within seven (7) days of the delivery date, or, where the defect or failure was not apparent on reasonable inspection, within a reasonable time after discovery of the defect. Any claims outside of the foregoing warranty period shall be denied. If any product shall be proven to PROCON’s satisfaction to be defective, PROCON will rebuild or replace at PROCON’s sole option such defective equipment or components thereof. Buyer’s exclusive remedy and PROCON’s sole obligation under this warranty shall be limited to such rebuilding or replacement and shall be conditioned upon the defective equipment being returned to PROCON. For this warranty remedy, all equipment shall be shipped ExWorks PROCON’s plant or other location designated by PROCON. Buyer shall bear all shipping expenses paid to and from PROCON’s factory or other destination designated by PROCON for rebuilding or replacement of defective equipment. In no event shall PROCON cover the costs of removing defective equipment or reinstalling rebuilt or replaced equipment.
Exclusions – This warranty does not apply to: (i) defects in the equipment arising from any drawing, design or specification provided by Buyer; (ii) equipment operated in excess of rated capacity or otherwise not in accordance with installation, maintenance or operating instructions or requirements, equipment rebuilt or altered by others than PROCON or PROCON’s authorized service agencies, equipment which was subject to negligence, misuse. misapplication, willful damage, accidental damage by circumstances beyond PROCON’s control, equipment that was improperly installed (if by others than PROCON), operated, maintained, or stored, equipment which was subject to other than normal use or service, (iii) equipment or components not manufactured by PROCON, in respect of which Buyer shall only be entitled to the benefit of any such warranty actually extended by the manufacturer to PROCON.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES (EXCEPT TITLE) INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Any description of the equipment whether in writing or made orally by PROCON 's agents, specifications, samples, models, bulletins, drawings, diagrams, engineering sheets, or similar materials used in connection with Buyer’s order, are for the sole purpose of identifying the equipment and shall not be construed as an express warranty. Any suggestions by PROCON or PROCON’s agents regarding use, application, or suitability of the equipment shall not be construed as an express warranty unless confirmed to be such in writing by an authorized representative of PROCON.
11. LIMITATIONS OF LIABILITY CONSEQUENTIAL DAMAGES
Consequential Damage Disclaimer – PROCON’s liability with respect to warranty claims shall be limited to rebuilding or replacement as provided in Section 10 hereof, and in no event shall PROCON’s liability exceed the purchase price of the equipment involved. PROCON shall not be subject to any other obligations or liabilities, whether arising out of breach of contract, warranty, tort (including negligence) or other theories of law, with respect to equipment sold or services rendered by PROCON, or any undertakings, acts, or omissions relating thereto. PROCON’s liability arising out of the manufacture, sale, delivery, resale, repair or use of any of the equipment, whether based on a theory of contract or tort, shall not, in any event, exceed the cost of correcting defects or making replacements as stated in the warranty and such remedy shall be to the exclusion of any and all other remedies, regardless of the legal theory under which liability is alleged. Upon the expiration of the warranty period, all liability of PROCON to Buyer shall terminate, and no action arising out of the sale of the equipment may be brought by Buyer after the expiration of the warranty period, regardless of the legal theory under which the action is brought.
Without limiting generality of the foregoing, PROCON specifically disclaims any liability for property or personal injury damages, penalties, special or punitive damages, damages for lost profits or revenues, loss of use of equipment or any associated equipment, cost of capital, cost of substitute products, facilities or services, down-time, shut-down, or slow-down costs, or for any other types of economic loss, and for claims of Buyer’s customers for any such damages.
IN NO EVENT SHALL PROCON BE LIABLE FOR LOSS OF USE, LOST REVENUES, LOST PROFITS, OR FOR INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES.
12. INDEMNIFICATION AND PRODUCT USE
Buyer hereby agrees to indemnify, defend and hold harmless PROCON from any and all liabilities, losses, damages, costs and expenses (including reasonable attorney’s fees), incurred in connection with any injury to persons or damage to property resulting from, or in any way connected to, the possession, sale, resale, transfer or use of the equipment. In the event of personal injury or damage to property or business arising from the use of the equipment, Buyer shall within 48 hours thereafter give PROCON written notice of such injury or damage.
Buyer agrees to comply with all applicable federal or state safety requirements and if Buyer fails to do so, Buyer shall indemnify, defend and hold PROCON harmless against any and all claims, losses or expenses for injury or damage arising from the use of the equipment. Buyer shall also comply with and require its employees to comply with directions set forth in instructions and manuals and to use reasonable care in the use and maintenance of the equipment. Buyer shall not remove or permit anyone to remove any safety devices, guards, warnings or instruction signs on the equipment.
13. INCLUSION OF PROCON'S TERMS AND CONDITIONS
All of Buyer’s sales contracts or quotation, acknowledgement or invoice forms relating to equipment sold by PROCON shall include appropriate references to the limitations on PROCON’s warranty and damage obligations as contained in Sections 10 and 11 hereof to limit PROCON’s obligations to customers of Buyer to those set forth in Sections 10 and 11.
14. PATENT INDEMNIFICATION
If any claim is made against Buyer that the equipment infringes the patent or other industrial or intellectual property rights of any other person, then PROCON shall indemnify Buyer against all loss, damages, costs and expenses awarded against or incurred by Buyer in connection with the claim, subject to PROCON’s written consent for any compromises or settlements. If the equipment is held to infringe and its use is enjoined, then, in the event of a settlement or compromise approved by PROCON which shall preclude future use of the equipment sold to Buyer hereunder, PROCON shall, at its own expense and at its sole option, either (a) procure rights to continue using such equipment (b) modify the equipment to render it non-infringing (c) replace the equipment with non-infringing equipment or (d) refund the purchase price paid by the Buyer for the equipment after return of the equipment to PROCON.
The foregoing indemnification shall not apply (i) to the extent the claim arises from the use of any drawing, design or specification supplied by Buyer; (ii) if the alleged infringement is based on the use of the equipment for any purpose other than the purpose for which it was sold; (iii) if Buyer takes any action which prejudices PROCON’s ability to defend any such claim; and (iv) to infringements of combination or process patents covering the use of equipment in combination with other goods or materials not furnished by PROCON.
The foregoing states the entire liability of PROCON for patent infringement, and IN NO EVENT SHALL PROCON BE LIABLE FOR CONSEQUENTIAL DAMAGES ATTRIBUTABLE TO AN INFRINGEMENT nor for infringement based on the use of the equipment for a purpose other than that for which bought from PROCON. As to any equipment furnished by PROCON to Buyer manufactured in accordance with designs proposed or furnished by Buyer or any claim of contributory infringement resulting from the use or resale by Buyer of equipment sold hereunder, Buyer shall indemnify PROCON against any award made against PROCON for any such patent, trademark, or copyright Infringements.
The foregoing states the entire liability of Procon for patent infringement, and IN NO EVENT SHALL PROCON BE LIABLE FOR CONSEQUENTIAL DAMAGES ATTRIBUTABLE TO AN INFRINGEMENT nor for infringement based on the use of the equipment for a purpose other than that for which bought from Procon. As to any equipment furnished to by Procon to Buyer manufactured in accordance with designs proposed or furnished by Buyer or any claim of contributory infringement resulting from the use or resale by Buyer of equipment sold hereunder, Buyer shall indemnify Procon against any award made against Procon for any patent, trademark, or copyright infringements.
15. DRAWINGS; OTHER DESIGN DATA
All specifications, drawings, design, data, information, ideas, methods, patterns, and/or inventions made, conceived, developed or acquired by PROCON in connection with procuring and/or executing Buyer’s order will vest in and inure to PROCON’s sole benefit notwithstanding any charges therefor which may have been or may be imposed by PROCON.
Buyer shall not give, loan, exhibit, sell, transfer to any person not then employed by Buyer and authorized to receive such information, or to any organization or entity, any drawing, photograph, or specification furnished by PROCON or reproduction thereof which may enable such person, organization, or entity to furnish similar goods or parts therefor.
16. RETURN OF EQUIPMENT
No equipment or part shall be returned to PROCON for any purpose other than rebuilding or replacement without written authorization and shipping instructions first having been obtained from PROCON. All such returns must be made within six (6) months of the date of shipment and the equipment must be unopened and unused. All such returns shall be subject to a restocking fee.
None of Buyer’s rights under any order shall be assigned by the Buyer to any other person, whether by operation of law or otherwise, without PROCON’s prior written approval.
No order submitted to PROCON may be cancelled by Buyer without prior written consent of PROCON, which consent will at all times be conditioned on Buyer’s agreement to pay PROCON’s cancellation charges, including restocking fees.
Governing Law – These Terms and Conditions, and the contract of sale between PROCON and Buyer, shall be governed by and construed in accordance with the laws of Ireland for all orders originating from the EU, or the State of Tennessee, USA, for all other orders.
Waiver – No waiver by PROCON of any breach of these Terms and Conditions shall be considered as a waiver of a subsequent breach of the same or any other provision.
Salvatory Clause – The invalidity, in whole or in part, of any of the provisions of these Terms and Conditions, shall not affect the enforceability of any of the other provisions thereof.