Terms and Conditions of Sale
Products purchased and sold hereunder shall be those for which buyer submits an order which is accepted by Watlow Electric Manufacturing Company and any of its subsidiaries or affiliates that is a party to any related purchase order (collectively, “Watlow”). Watlow will deliver the ordered quantity specified, provided that Watlow shall have the right to manufacture, deliver and invoice for partial deliveries of products.
Incoterms® CPT, Customer’s Delivery Location. Risk of loss and title passes to buyer when the goods are placed on the first means of transportation. Watlow shall select the means of transportation and prepay freight. For export shipments, buyer shall be responsible for customs clearance, duties, import VAT or GST when applicable. Under any agreed Incoterms® Watlow will file electronic export information. Watlow may designate the locations from which buyer may receive or pick up products.
Terms are net 30 days from date of invoice with approved credit. All quotations are valid for 30 days unless otherwise stated. Buyer shall not, and acknowledges that it will have no right to, withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Watlow or any of Watlow’s affiliates, whether relating to these terms and conditions and the parties’ performance hereunder or any breach or non-performance of any other agreement between buyer and Watlow or any affiliate thereof.
Prices are subject to change by Watlow without advance notice to buyer. If Watlow desires to revise the discounts, prices, points of delivery, service allowances or terms of payment but is restricted to any extent against so doing by reason of any governmental request, law, regulation, order or action, or if the discounts, prices, points of delivery, service allowances or terms of payment then in effect are altered by reason of governmental request, law, regulation, order or action, Watlow shall have the right (i) to terminate this order by notice to buyer, (ii) to suspend deliveries for the duration of such restriction or alteration, or (iii) to have applied to this order (as of the effective date of such restriction or alteration) any discounts, prices, points of delivery, service allowances or terms of payment governmentally acceptable. Any delivery suspended under this section may be canceled without liability.
Materials, Processes, and Part Numbers:
Watlow reserves the right, at any time and at its sole and absolute discretion, to make alterations to manufacturing, design, or other processes and/or changes to materials used in the manufacturing of its Standard Products (as hereinafter defined) without providing any prior notice thereof to buyer or otherwise incurring any obligations to buyer. In addition to the foregoing, the applicable part number for each product sold hereunder is subject to change by Watlow at its sole and absolute discretion without providing notice thereof to buyer. For purposes of these terms and conditions, the term “Standard Products” means those Watlow products, including but not limited to, heaters, controllers, control panels, sensors and accessories, which are included in Watlow’s standard catalogue
Generally, all sales of Watlow products are considered final. Requests for returns must be made in writing within sixty (60) days immediately following the date which product arrived at the applicable location. All such requests will be reviewed and require written authorization. Generally, only stock products that have not be used or modified will be authorized for return and under no circumstances shall controllers be returned if the packaging seal is broken. Authorized returns will be subject to a $50 minimum or a thirty-five percent (35%) handling fee, whichever is greater. Authorized returns must be shipped freight prepaid at buyer’s expense and be accompanied by an RMA. Products returned without an RMA will not be processed.
Requested changes in the quantity, drawings, designs or specifications for products that have been ordered by buyer pursuant to an accepted purchase order, will only be binding upon Watlow if such changes are expressly accepted by Watlow in writing. Any such proposed changes are subject to the written agreement by Watlow and may cause an adjustment to the price, delivery schedule, or other commercial terms applied thereto. After receipt of such notice, Watlow will inform buyer of any adjustments to be made in price, delivery schedules, etc. resulting from buyer’s requested changes prior to incorporating requested changes into manufactured products. If Watlow accepts a request by Buyer to extend the delivery date for finished products, Buyer shall pay to Watlow an additional daily stocking fee equal to at least two percent (2%) of the applicable purchase order per month, unless otherwise agreed by the parties. In the event that buyer and Watlow are unable to agree to the applicable adjustments in price, delivery, schedule, etc., such requested changes shall be deemed to be an order cancellation by buyer and buyer shall be responsible to Watlow for the expenses required herein.
Buyer may cancel all or any portion of a purchase order for the products by delivering not less than sixty (60) days’ prior written notice thereof to Watlow. If any purchase order is so cancelled by buyer, buyer shall pay to Watlow: (a) the price for all products that are produced and finished as of the date that Watlow receives such cancellation notice (“Cancellation Notice”); (b) the direct cost to Watlow for any work-in-progress in respect of such purchase order as of the date that Watlow receives such Cancellation Notice plus a handling and stocking charge equal to fifteen percent (15%) of such costs; and (c) any third party restocking or cancellation charges incurred by Watlow due to such order cancellation.
Freight and Taxes:
Prices do not include prepaid freight, federal, state or local taxes. Any increase in freight rates paid by Watlow on deliveries covered by this order and hereafter becoming effective and any tax or governmental charge or increase in same (excluding any franchise or income tax or other tax or charge based on income) (i) increasing the cost to Watlow of producing, selling or delivering products or of procuring products used therein or, (ii) payable by Watlow because of the production, sale or delivery of products, such as Sales Tax, Use Tax, Retailer’s Occupational Tax, Gross Receipts Tax, Value Added Tax (VAT), and Ways Fees may, at Watlow’s option, be added to the prices herein specified and be added to invoices.
On complex products, systems or controller software modifications, an engineering charge may be applied or included in the price of prototypes. This charge is not subject to discounts.
All tooling and fixtures are the property of Watlow. Watlow will accept buyer’s special tooling if sent freight prepaid. Watlow will maintain this tooling, exercising reasonable care, in order to produce buyer’s products. Permanent molds for aluminum cast-in and polymer products shall be the property and responsibility of buyer.
Excuse of Performance:
Deliveries of product may be suspended by Watlow in the event of: (a) war, riot, terrorism, an act of God, fire, explosion, accident, flood, hurricane, sabotage; (b) a lack of adequate fuel, power, raw materials, labor, containers or transportation facilities; (c) compliance with governmental requests, laws, regulations, orders or actions; (d) breakage or failure of machinery or apparatus; (e) national defense requirements; (f) labor trouble, strike, lockout or injunction (provided that Watlow shall not be required to settle a labor dispute or accede to the demands of employees that it considers in its own business judgment to be contrary to its interests);or (g) any other event, beyond the reasonable control of Watlow, whether or not foreseeable or of the class or kind enumerated herein, which event makes impracticable the manufacture or transportation of the product or of a material upon which the manufacture of the product is dependent (each, a “Force Majeure Event”). Upon a Force Majeure Event, Watlow shall send written notice to buyer setting forth a brief description of the Force Majeure Event and an estimate, to the extent reasonably ascertainable, of the anticipated duration thereof. The foregoing notice requirement shall be satisfied by written notice given at such time as it shall become clearly apparent in the reasonable judgment of Watlow that performance has been materially diminished by such Force Majeure Event. If Watlow determines that its ability to supply the total demand for the product, or obtain any or a sufficient quantity of any material used directly or indirectly in the manufacture of the product, is hindered, limited or made impracticable due to a Force Majeure Event, Watlow may allocate its available supply of the product or such material (without obligation to acquire other supplies of any such products or material) among itself and its purchasers, including purchasers that are not currently under contract, on such basis as Watlow determines to be equitable without liability for any failure of performance which may result therefrom. Deliveries suspended or not made by reason of this section shall be cancelled without liability, but these terms and conditions shall otherwise remain unaffected.
Warranty and Limitation of Liability:
Watlow warrants that its products will be free from defects in materials or workmanship for a period of twelve (12) months, and for controllers purchased hereunder, for a period of thirty-six (36) months, from the date of shipment of the products by Watlow (such period, the “Warranty Period”). This warranty does not extend to any losses or damages due to misuse, contamination, accident, neglect, normal wear and tear, negligence, unauthorized modification or alteration, improper installation or maintenance, misapplication, improper specification or operational conditions beyond Watlow’s knowledge or control. Any product that does not comply with the foregoing warranty is hereinafter referred to as a “Nonconforming Product.” Should any product fail during the Warranty Period, the root cause of which is noncompliance with the warranty requirements set forth in this paragraph, then Watlow shall, at its option and as buyer’s sole and exclusive remedy for any warranty claim hereunder, either repair, provide a free replacement, or refund or grant a credit to buyer for the price for such Nonconforming Product. Buyer shall notify Watlow during the Warranty Period of the alleged failure of a product through Watlow’s Returned Merchandise Authorization (“RMA”) process within thirty (30) days after such failure. Advanced authorization for any repair or replacement undertaken by Buyer must be obtained in writing from Watlow. Notwithstanding the foregoing, Watlow’s warranty with respect to implant refurbishment services performed by Watlow and the resulting refurbished disks (collectively, “Refurbished Disks and Services”) shall not become effective until such time as Watlow has received payment in full for the Refurbished Disks and Services that are subject to any warranty claim hereunder and the duration of such warranty shall be twelve (12) months to the extent such claim relates to mechanical performance and six (6) months to the extent such claim relates to elastomer, particle performance and si coating.
In the event that Watlow is selling software programs hereunder, Watlow warrants that for a period of twelve (12) months from the date of shipment of such software program (“Software”) to buyer by Watlow (if applicable), when the Software is used in accordance with the instructions therefor, the Software shall be free from material defects, provided that buyer has implemented any applicable upgrades, fixes or corrections that Watlow may make available from time to time. Watlow does not warrant that the Software will be error free or virus free, will function without interruption, or will meet any specific business need of buyer. Watlow will, at its own expense and as its sole obligation and buyer’s exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct any material defect, provided that such material defect is reproducible, buyer provides Watlow with prompt written notice thereof upon its discovery, and buyer cooperates with Watlow’s reasonable requests and instructions for correcting such material defect. Notwithstanding the foregoing, in no event shall Watlow have any obligation or liability for any claim or defect arising out of or resulting in whole or in part from: (i) misuse of the Software by Buyer or its employees, agents and representatives; (ii) modifications to the Software not made by Watlow; (iii) combination of the Software with hardware or software not supplied by Watlow or use of the Software as part of a non-Watlow method or system; or (iv) the specific data input, processed or stored in connection with the use of the Software by Buyer or its employees, agents and representatives.
THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES MADE BY WATLOW AND ARE IN LIEU OF AND EXCLUDE ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW, CUSTOM, CONDUCT, USAGE OF TRADE OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS, RESULTS OR EFFORTS.
NO EMPLOYEE, AGENT OR AFFILIATE OF WATLOW HAS AUTHORITY TO BIND WATLOW TO ANY REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, NOT EXPRESSLY CONTAINED IN THIS AGREEMENT, AND ANY SUCH PURPORTED REPRESENTATIONS OR WARRANTIES SHALL NOT BE ENFORCEABLE. THE REMEDIES OF BUYER PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF THE WARRANTY CONTAINED HEREIN.
If buyer orders and/or Watlow delivers a product designated as a “Prototype”, no guarantees, warranties or representations of any kind are made with respect to such Prototype. Buyer shall have the duty and sole responsibility to test a Prototype prior to acceptance and/or incorporation into end-use applications. Further, a production product based on a Prototype design may differ in assembly methods and materials from the Prototype. Buyer, therefore, shall have the duty and sole responsibility for testing and acceptance of production products which are based on Prototype designs.
IN NO EVENT SHALL WATLOW OR ITS AFFILIATES BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, OR SIMILAR DAMAGES (INCLUDING LOST REVENUE OR PROFITS) ARISING OUT OF OR RELATED TO ITS PERFORMANCE UNDER THESE TERMS AND CONDITIONS. BUYER’S EXCLUSIVE REMEDY AND WATLOW’S AND ITS AFFILIATES’ EXCLUSIVE LIABILITY UNDER THESE TERMS AND CONDITIONS OR OTHERWISE (INCLUDING NEGLIGENCE) SHALL BE FOR DAMAGES WHICH SHALL IN NO EVENT EXCEED SO MUCH OF THE PURCHASE PRICE AS IS APPLICABLE TO THAT PORTION OF THE PARTICULAR SHIPMENT OF PRODUCTS WITH RESPECT TO WHICH DAMAGES ARE CLAIMED. THE LIMITATIONS ON LIABILITY IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF THE CAUSE OF ACTION OR BASIS OF LIABILITY (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, OTHER TORT OR OTHERWISE). THESE LIMITATIONS ON LIABILITY ARE AN ESSENTIAL PART OF THIS AGREEMENT AND SHALL BE VALID AND BINDING EVEN IF ANY REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE.
THE VALIDITY, INTERPRETATION AND PERFORMANCE OF THIS AGREEMENT AND/OR ORDER AND ANY DISPUTE CONNECTED HEREWITH SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MISSOURI. These Terms and Conditions constitute the full understanding of the parties, a complete allocation of risks between them and a complete and exclusive statement of the terms and conditions of their agreement and/or order relating to the subject matter herein. Any terms and conditions proposed in Buyer’s purchase order or in any acknowledgment, invoice, or other documentation of Buyer that add to, vary from, or conflict with the terms herein are hereby rejected and the terms hereof shall be binding upon the parties. Except as otherwise expressly provided herein, no conditions, usage of trade, course of dealing or performance, understanding or agreement and/or order purporting to modify, vary, explain or supplement the terms or conditions of this agreement and/or order shall be binding unless hereafter made in writing and signed by the party to be bound, and no modification shall be effected by the acknowledgment or acceptance of any purchase order or shipping instruction forms containing terms or conditions at variance with or in addition to those set forth herein. No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing or performance shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing signed by the party to be bound. If any term, condition or provision of this agreement and/or order or the application thereof is judicially or otherwise determined to be invalid or unenforceable, or if the parties mutually agree in writing to any revision of this agreement and/or order, the remainder of this agreement and/or order and the application thereof shall not be affected, and this agreement and/or order shall otherwise remain in full force and effect.