AMPS INDUSTRIAL CONTROLS, CORP.’s
STANDARD TERMS AND CONDITIONS OF SALE
THESE TERMS AND CONDITIONS (“TERMS”) APPLY TO SALES OF GOODS OR SERVICES BY AMPS INDUSTRIAL CONTROLS CORP., AN OHIO CORPORATION (“AMPS”). ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS OR CONDITIONS ON BUYER’S PURCHASE ORDER, SPECIFICATIONS, OR OTHER DOCUMENTS ISSUED BY BUYER SHALL BE WHOLLY INAPPLICABLE AND SHALL NOT BE BINDING IN ANY WAY ON AMPS. ACCEPTANCE OF BUYER’S OFFER IS EXPRESSLY MADE CONDITIONAL ON BUYER’S ASSENT TO THESE TERMS. NO WAIVER OR AMENDMENT OF ANY OF THE PROVISIONS CONTAINED IN THESE TERMS SHALL BE BINDING ON AMPS UNLESS MADE IN A WRITING EXPRESSLY STATING THAT IT IS SUCH A WAIVER OR AMENDMENT OF THESE TERMS AND SIGNED BY AN OFFICER OF AMPS.
The prices for AMPS products and services are provided in the Quotation. Any additional labor costs chargeable to Buyer, under the Quotation or these Terms, are at AMPS’s standard engineering labor rates. If the price of freight, raw materials, purchased components, or other production costs increases significantly, then AMPS shall have the right and Buyer shall have the obligation to renegotiate prices on all products and services.
3. TERMS OF PAYMENT
The Terms of Payment are ordinarily set forth in AMPS Quotation, and/or Invoice. All amounts past due shall incur interest at the rate of 1.5% per month, compounded monthly. AMPS may suspend performance for late payment. AMPS is not liable for any back charges, penalties, liquidated damages, or other charges unless agreed to by an officer of AMPS in writing.
If the Terms of Payment are not included in the Quotation or Invoice, the Terms of Payment are:
a. All payments are due and payable ten (10) days from the date of Invoice, without deduction or offset. All amounts past due shall incur interest at the rate of 1.5% per month, compounded monthly. AMPS may suspend performance for late payment. AMPS is not liable for any back charges, penalties, liquidated damages, or other charges unless agreed to by an officer of AMPS in writing.
b. Unless otherwise specified in the Quotation, the contract price will be invoiced as follows: 50% upon acceptance of Quotatoin, 30% upon completion of work at AMPS; and 20% upon shipment.
4. SECURITY INTEREST
AMPS reserves and Buyer hereby grants AMPS a security interest in all products sold to the extent of all invoiced amounts. If Buyer defaults under any obligation hereunder, Buyer agrees to make products available so that AMPS can repossess them without a breach of the peace. AMPS has the right to file a UCC-1 or similar financing statement evidencing its security interest in such products. Upon AMPS’ request, Buyer will execute any documents to perfect AMPS’ security interest in any products.
5. TITLE AND DELIVERY
a. All shipments by AMPS are FOB AMPS’s facility. Title and risk of loss or damage to products shall pass to Buyer upon delivery to the common carrier at AMPS’ facility.
b. Buyer acknowledges and agrees that delivery dates are estimates only. AMPS will use commercially reasonable efforts to deliver in accordance with the delivery dates in the Quotation or by the dates otherwise communicated to Buyer, but AMPS is not liable for late delivery.
c. Buyer may not cancel or accelerate delivery of any products ordered from AMPS. Buyer may delay delivery, with AMPS’ written consent; provided, however, that AMPS may invoice on the date the production is ready for delivery, which invoice is due within ten (10) days as set forth in Section 3.a
a. Unless explicitly included in the Quotation, the price and scope of work do not include installation, installation supervision, or start-up service. If installation is explicitly included in the Quotation, then Buyer is responsible for providing an appropriate space and environment for installation, including electricity and other utilities and inputs Buyer will not impair installation and will cooperate with AMPS as reasonably requested. The price does not include, and AMPS may charge additionally for all labor and other costs associated with, any unusual, unanticipated, or changed conditions at the installation site.
7. ENGINEERING DRAWINGS
a. When required by a Quotation, AMPS will submit engineering drawings to Buyer for approval. Buyer will transmit its approval or objection of any drawings within one (1) week after receipt. Any drawings approved by Buyer are considered “Approved Drawings” and constitute authorization for AMPS to begin work.
b. If Buyer (i) fails to approve or object to drawings within one (1) week after receipt, (ii) rejects drawings, or (iii) requests changes that AMPS does not accept; then the project is considered on hold status, and becomes subject to possible price changes described in Section 2. The project will be removed from hold status once AMPS receives Approved Drawings. If Buyer fails to approve drawings in good faith within a reasonable time, then AMPS may deem such action a breach of this Agreement.
c. If Buyer approves drawings with requested changes, and AMPS accepts those changes, then those drawings are considered “Approved As Noted Drawings.”
i. If Buyer’s comments on Approved As Noted Drawings do not explicitly require resubmittal to Buyer, then AMPS is authorized to begin work. Buyer’s changes on Approved As Noted drawings are subject to price and sales term changes as reasonably determined by AMPS. Reasonable nomenclature-type changes, which do not require changes to equipment items, will not cause price changes. AMPS will notify Buyer of any such change within four (4) weeks after receipt of Approved As Noted drawings.
ii. If Buyer’s comments on Approved As Noted Drawings explicitly require resubmittal to Buyer, then AMPS will submit a proposal for price and sales term changes, subject to Buyer’s approval. The project is considered on hold status, as described in Section 6.b, until approved by Buyer. Upon Buyer approval, AMPS is authorized to begin work.
d. If AMPS rejects Buyer’s changes, then AMPS will submit new or amended drawings under Section 6.a above.
8. DESIGN CHANGES
This section applies to changes requested by Buyer after Approved Drawings or Approved As Noted Drawings.
a. Nomenclature-type changes, which do not require changes to components, will be incorporated at a charge reflecting AMPS’ other costs involved in changing the drawings, including labor.
b. Changes to equipment items will be incorporated at a charge reflecting AMPS’ costs involved in changing the drawings, cancellation of any work-in-progress, and incorporation of Buyer’s changes, including labor, the cost of any nonreturnable components, and overhead on cancelled elements of work-in-progress.
9. LIMITED WARRANTY
a. Any product or service sold or provided by AMPS shall be deemed accepted by Buyer upon delivery. For a period of one (1) year from the date of delivery, AMPS warrants to Buyer that products delivered hereunder will be in accordance in all material respects with agreed specifications and will be free from defects in workmanship when installed, operated, and serviced in accordance with AMPS’ instructions and recommendations, including voltage and hydraulic pressures.
b. Notwithstanding the foregoing, AMPS does not provide any warranty as to components AMPS purchases from third parties for use in its products. Instead, AMPS assigns to Buyer all such warranties, without recourse. AMPS will provide reasonable assistance to Buyer in pursuing warranty claims against such third party sellers.
c. The run rate and efficiency of any equipment may vary greatly based on many factors, including raw materials, operating conditions, environment, and other equipment in use on the line. Any statement by AMPS as to run rate, efficiency, or similar factors is simply an estimate based on operation in optimal conditions, and does not constitute a warranty of any kind.
d. AMPS does not warrant that its products comply with any federal, state, local, or foreign laws or regulations regarding the environment, pollution control, or worker health or safety (including the Occupational Safety and Health Act of 1970). Buyer is solely responsible for making any modifications required to AMPS’ products required for such compliance.
e. If, during the applicable warranty period, (i) AMPS is notified promptly in writing upon discovery of any alleged defect in the products, including a detailed description of such defect; (ii) if requested by AMPS, such products are returned to AMPS, FOB AMPS’ facility accompanied by AMPS’ Returned Material Authorization form; and (iii) AMPS’ examination of such products discloses to AMPS’ satisfaction that such products are defective and such defects are not caused by accident, abuse, exposure to severe weather conditions, misuse, neglect, alteration, improper installation, improper maintenance or repair, improper or inadequate testing, or use contrary to any instructions or recommendations issued by AMPS, then AMPS shall, at its sole option, either repair, replace, or credit Buyer the purchase price of such products. No products may be returned to AMPS without AMPS’ Returned Material Authorization form. Prior to any return of products by Buyer pursuant to this Section 5, Buyer shall afford AMPS the opportunity to inspect such products at Buyer’s location.
f. The performance of this warranty does not extend the warranty period for any products beyond that period applicable to the products originally delivered.
g. THE FOREGOING WARRANTY CONSTITUTES AMPS’ EXCLUSIVE LIABILITY, AND THE EXCLUSIVE REMEDY OF BUYER, FOR ANY BREACH OF ANY WARRANTY OR OTHER NONCONFORMITY OF THE PRODUCTS COVERED BY THESE TERMS. THIS WARRANTY IS EXCLUSIVE, AND IN LIEU OF ALL OTHER WARRANTIES. AMPS MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS WARRANTY SHALL BE AS EXPRESSLY PROVIDED IN THIS SECTION 5.
h. IN NO EVENT WILL AMPS BE LIABLE FOR ANY COSTS ASSOCIATED WITH THE REPLACEMENT OR REPAIR OF PRODUCT, INCLUDING LABOR, INSTALLATION, OR OTHER COSTS INCURRED BY BUYER AND, IN PARTICULAR, ANY COSTS RELATING TO THE REMOVAL OR REPLACEMENT OF ANY PRODUCT.
10. LIMITATION OF LIABILITY
a. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AMPS SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO BUYER OR ANY THIRD PARTIES FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR OTHER DAMAGES WHETHER IN AN ACTION BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED HEREUNDER, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF AMPS IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
b. UNDER NO CIRCUMSTANCES SHALL AMPS’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO ANY TRANSACTION CONTEMPLATED HEREUNDER (INCLUDING BUT NOT LIMITED TO ANY WARRANTY OR INDEMNITY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY BUYER TO AMPS HEREUNDER FOR THE PRODUCTS OR SERVICES ACTUALLY GIVING RISE TO SUCH LIABILITY (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN SUCH ACTION). NO CLAIM, SUIT OR ACTION SHALL BE BROUGHT AGAINST AMPS IF MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS TRANSPIRED.
11. INTELLECTUAL PROPERTY
a. AMPS’ ONLY RESPONSIBILITY AND LIABILITY AND BUYER’S SOLE REMEDY, FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, TRADEMARK, OR COPYRIGHT BY ANY PRODUCTS OR SERVICES DELIVERED HEREUNDER, OR ANY PART THEREOF IS REPLACEMENT OF THE INFRINGING PRODUCT. THIS IS IN LIEU OF AND REPLACES ANY OTHER EXPRESSED, IMPLIED OR STATUTORY WARRANTY AGAINST INFRINGEMENT. IN NO EVENT SHALL AMPS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR OTHER DAMAGES RESULTING FROM ANY SUCH INFRINGEMENT.
b. Buyer shall, at its own expense, indemnify and hold AMPS harmless from and against any liabilities, costs, damages, or losses resulting from any alleged infringement of any patent, trademark, copyright, or other intellectual property right arising as a result of AMPS’ compliance with any of Buyer’s designs, specifications, or instructions including infringement arising out of the use of such products as part of or in combination with another device.
c. AMPS shall retain all patent, copyright, trade secrets, and other intellectual property rights it possesses with regard to all products and services rendered hereunder. The design, development or production of product hereunder shall not be deemed to be a “work made for hire,” and nothing herein shall be construed to grant to Buyer any right or license in any patent, copyright, trade secret, mask right, or any other intellectual property right.
d. All drawings, documentation, and other data generated by AMPS in the performance hereunder shall remain the sole and exclusive property of AMPS. All patents, copyrights, or other intellectual property rights related solely to the specifications generated by Buyer shall remain the sole and exclusive property of Buyer. Buyer may only use such drawings, documentation, and other data solely to operate the products in the manner intended. Buyer many not, during the time it owns a product or has possession of any drawings, documentation, or other data generated by AMPS, or within two years thereafter, may not use, or allow any third party to use, such product, drawings, documentation, or other data to reverse engineer or create any other product, drawings, documentation, or other data.
e. Any designs, devices, or processes that are developed by AMPS concurrently with the work performed hereunder shall be the sole and exclusive property of AMPS, and AMPS reserves the right to use such designs or processes for other customers, or license the use thereof to others.
Any one of the following acts by Buyer shall constitute a material breach of Buyer’s obligations hereunder:
a. Buyer fails to make payment for any products or services in full when due;
b. Buyer fails to accept conforming products or services supplied hereunder; or
c. The filing of a voluntary or involuntary petition in bankruptcy against Buyer, the institution of any proceeding in insolvency or bankruptcy (including reorganization) against Buyer, or an assignment for the benefit of creditors of Buyer.
If Buyer materially breaches these Terms, then AMPS may (in addition to any other rights or remedies provided herein or at law or in equity), by written notice to Buyer, terminate its obligations or any part thereof, without any liability to AMPS. If Buyer terminates a project or AMPS terminates because of Buyer’s material breach of these Terms, then Buyer shall promptly pay (i) the price determined by the Quotation and these Terms for all milestones completed before termination; (ii) all other work performed before termination at AMPS’ cost, including labor, overhead, the cost to return any returnable components, and the entire cost of any nonreturnable components; and (iii) all costs, including reasonable attorneys’ fees, incurred by AMPS in any action brought by AMPS to collect payments owing or otherwise enforce its rights.
13. FORCE MAJEURE
AMPS shall not be liable hereunder due to any cause beyond its control, including but not limited to acts of God, acts of civil or military authority, fires, epidemics, floods, riots, wars, sabotage, terrorism, labor disputes, governmental actions, or inability to obtain materials, components, energy, manufacturing facilities, or transportation. In the event of any such delay, the date of delivery or performance hereunder shall be extended by a reasonable period of time.
a. Each party’s confidential or proprietary information may, if required by the parties, be further defined and protected by separate Non-Disclosure Agreement and each party’s sole and exclusive obligations with regard to such confidential or proprietary information shall be as set forth in such agreement.
b. Buyer may not assign its rights or delegate its obligations hereunder in whole or in part (including warranty rights) without the prior written consent of AMPS and any purported assignment or delegation without such consent shall be of no force or effect. Any merger involving Buyer or the transfer or sale of all or substantially all of Buyer’s assets or stock shall be deemed an assignment. AMPS may assign its rights and/or obligations hereunder upon written notice to Buyer.
c. Any waiver by AMPS of any default by Buyer shall not be deemed to be a continuing waiver of such default or a waiver of any other default or of any of these Terms.
d. Headings in these Terms are for reference only and have no substantive effect. The word “including” means “including without limitation.”
e. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, it shall be deemed amended the minimum amount necessary to permit its enforcement.
f. These Terms, the Quotation, and any Non-Disclosure Agreement (but no terms or conditions of Buyer’s purchase order, no specifications or any similar document issued by Buyer, and no communication with Buyer), constitute the entire agreement between Buyer and AMPS with regard to the products or services described in the Quotation, and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to such products or services.
g. The validity, performance and construction of these Terms, and any disputes arising from or relating thereto any transaction governed by these Terms, shall be governed by Ohio law, without reference to conflict of law principles. All disputes shall be subject to the exclusive jurisdiction of the state courts of Lucas County, Ohio (or, if there is federal jurisdiction, the United States District Court for the Northern District of Ohio, Western Division), and Buyer consents to the personal and exclusive jurisdiction and venue of these courts. The United Nations Convention on the Sale of Goods, Uniform Commercial Code, and the Uniform Computer Information Transaction Act shall not apply to these Terms.