14 ABB Control Inc.
AC 1012 – 2/00 4/13/00 Proof
Terms & conditions
These terms and conditions govern all sales and shipments of control equipment products
(including parts and accessories).
ABB Control Inc. hereby gives notice of its objection to any different or additional terms and
conditions except for such as may be expressly accepted by it in writing.
Prices
Prices are subject to change without notice. Prices will be the prices in effect at the time of
shipment by ABB Control Inc. and include freight, prepaid and allowed to first destination in
the continental United States. In the event of a price change, the effective date of the change
will be the date shown on the new price discount sheets. However, where a price change is
made by letter or telegram, the effective date will be given as part of the announcement.
Taxes
The price does not include any Federal, state or local property, license, privilege, sales, use,
excise, gross receipts or other like taxes which may now or hereafter be applicable. Payment
by ABB Control Inc. of any such taxes shall be for the account of purchaser.
Standard Terms of Payment
Standard terms of payment are according to the appropriate discount schedule (AC 5000 -
AC 5002).
Payment and Late Charges
ABB Control Inc. may require full or partial payment in advance if, in its sole judgement, the
financial condition of the purchaser, at any time prior to delivery, does not merit the terms of
payment specified.
If shipments are delayed by the purchaser or by reason of any of the causes referred to in the
paragraph entitled "Excusable Delay", payments shall become due from the date when ABB
Control Inc. is prepared to make shipment. Products held for the purchaser as a result of
such delay shall be at the risk and expense of the purchaser.
If the purchaser fails to pay any invoice when due, ABB Control Inc. may defer deliveries
under this or any other contract with purchaser, except upon prior receipt of satisfactory
security for or cash in payment of any such invoice. Failure on the part of purchaser to pay
invoices when due shall at the option of ABB Control Inc. constitute a default under this
contract.
A service charge, the lesser of the highest rate allowed by law or 11/2% per month, or
fraction thereof, for a maximum charge of 18% per annum will be charged on all overdue
accounts.
Delivery
Delivery of products shall be FOB point of shipment regardless of transportation costs being
"allowed", "prepaid" or collect". Where the scheduled delivery of products and parts is
delayed by the purchaser or by reason of any of the causes referred to in the paragraph
entitled Excusable Delay, ABB Control Inc. may deliver such products by moving them to
storage for the account of and at the risk of the purchaser. Shipping dates are approximate
and are based upon prompt receipt of all necessary information from purchaser. ABB Control
Inc. reserves the right to make delivery in installments.
Purchaser Pick-up
No allowance will be made in lieu of transportation charges if the purchaser accepts shipment
at the factory, warehouse or freight station. Transportation charges will not be deducted from
the purchase price.
Origin, Method of Shipment and Routing
ABB Control Inc. shall determine the point of origin of shipment, the method of transportation
and the routing of shipment. Costs for shipment by means requested by purchaser different
from ABB Control Inc.'s standard means of shipment are invoiced to the purchaser as a
separate charge.
Freight charges will be added to the price of any order under $100.
Excusable Delay
ABB Control Inc. shall not be liable for loss, damage, detention or delay, nor be deemed to
be in default from causes beyond its reasonable control, including without limitation, fire,
flood, strike or other labor difficulty, act or omission of any governmental authority or of the
purchaser, insurrection or riot, embargo, delays or shortage in transportation or inability to
obtain necessary labor, materials or manufacturing facilities from usual sources.
In the event of delay in performance due to any such cause, the date of delivery will be
postponed by such length of time as may be reasonably necessary to compensate for the
delay.
Warranty
ABB Control Inc. warrants that on date of shipment to purchaser, the goods will be the kind
and quality described herein, merchantable and free of defects in workmanship and material.
If within one year from date of initial operation, but not more than eighteen months from date
of shipment, should any failure to conform with this warranty appear within such time, ABB
Control Inc. shall, if given prompt notice by purchaser, correct such nonconformity, at its
option, either by repair or replacement F.O.B. repair facility or by refund of the purchase price
of the nonconforming product or part. Return of products to ABB Control Inc. pursuant to this
paragraph shall be at purchaser's risk and expense. The foregoing warranty is exclusive and
in lieu of all other warranties of quality, expressed or implied, and all other warranties,
including any warranty of merchantability or fitness for a particular purpose are hereby
disclaimed.
Correction of nonconformities in the manner and for the period of time provided above shall
be purchaser's exclusive remedy and shall constitute fulfillment of all liabilities of ABB Control
Inc. whether in warranty, strict liability, contract, negligence, tort or otherwise with respect to
any nonconformance or defect in the product.
The foregoing warranty shall not apply to any product which has been: a) improperly
repaired or altered, b) subjected to misuse, misapplication, negligence or accident, c) used
in a manner contrary to manufacturer's directions.
Limitation of Liability
ABB Control Inc.'s liability to purchaser on any claim in connection with the product shall not
exceed the purchase price of the product which gives rise to the claim.
IN NO EVENT SHALL ABB CONTROL INC. BE LIABLE FOR SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES whether in warranty, contract, strict liability, tort, negligence
or otherwise including but not limited to loss of profits or revenue, loss of use of the product
or any associated product, cost of capital, cost of substitute products, facilities or services,
downtime costs or claims of customers of the purchaser for such or other damages.
Except as prohibited by law, all causes of action against ABB Control Inc. shall expire unless
brought within one year of the time of accrual thereof. ABB CONTROL INC. NEITHER
ASSUMES NOR AUTHORIZES ANYONE TO ASSUME FOR IT ANY OTHER OR FURTHER
LIABILITY THAN AS SET OUT ABOVE.
Patent Indemnity
ABB Control Inc. will at its own expense defend any suit which may be brought against the
Purchaser based on a claim that any apparatus or part furnished under contract constitutes
an infringement of any United States letter patent (provided ABB Control Inc. is notified
promptly of such suit and copies of all papers therein are delivered to ABB Control Inc.), and
ABB Control Inc. agrees to pay all judgements and costs recovered in any such suit and to
reimburse the Purchaser for costs of expenses incurred in the defense of any such claim or
suit. In case said apparatus or any part is held to constitute infringement and the use of the
apparatus or part is enjoined, ABB Control Inc. shall at its own expense, either procure for
the Purchaser the right to continue using the apparatus or part or replace it with non-
infringing apparatus; or modify it so it becomes non-infringing, or remove the apparatus and
refund the purchase price and the transportation and installation cost thereof. The foregoing
states the entire liability of ABB Control Inc. for patent infringement by apparatus or any part
thereof.
Shipping loss or damage
In the event of shipping loss or damage: 1) Notification must be given to ABB Control Inc.
within 72 hours of delivery; 2) Written notice of apparent loss or damage must be made on
the carrier's delivery receipt; and 3) Concealed damage must be immediately reported to the
delivering carrier with a request for inspection. Purchaser shall comply with the foregoing
procedure whether or not ABB Control Inc. has the risk of loss at the point of loss or damage
to the shipment.
Title — risk of loss
The products sold hereunder shall remain the property of ABB Control Inc. and shall remain
personal property until fully paid for in cash, and purchaser agrees, if requested by ABB
Control Inc. to execute a further security agreement covering the products sold, and to
perform all acts which may be necessary to perfect and assure retention of title to such
products by ABB Control Inc. Not withstanding any agreement with respect to delivery terms,
risk of loss or damage shall pass to the purchaser and delivery shall be deemed to be
complete upon delivery to a private or common carrier or upon moving into storage,
whichever occurs first, at the point of shipment.
Termination
Any order or contract may be terminated by the purchaser only on written notice and upon
payment of reasonable and proper termination charges, including without limitation, all costs
identified to the order of contract incurred by ABB Control Inc. up to the date of notice of
termination and all charges incurred by ABB Control Inc. in respect of the termination.
Returns
In no event will ABB Control Inc. be responsible for unauthorized return of products. Returns
will be accepted only at ABB Control Inc.'s option and subject to terms specified by ABB
Control Inc. Authorization and shipping instructions for return of products must be obtained
from ABB Control Inc. prior to return shipment. Product must be returned with proper
identification. When a purchaser requests authorization to return for his own reasons, the
return is subject to a minimum restocking charge of 20% for standard inventoried product and
for any transportation paid by ABB Control Inc., both out and ingoing. Returns will be
accepted up to 60 days after invoice date. Goods returned for purchaser's reason are subject
to inspection and must be in good working condition, as new, and in original cartons.
Purchase orders
Except as provided below, all orders must be in writing and show quantities and prices,
complete description (including catalog numbers) of products requested and mutually agreed
delivery dates.
Verbal orders received via telephone or otherwise must be confirmed within 5 days either by
mail, telex or the equivalent. Verbal orders with a purchase price over $5,000 will not be
processed until such written confirmation is received.
Unless otherwise agreed in writing, an addition to a previously entered order will be accepted
only at then applicable prices, discount schedules, conditions of sale, etc.
Special quotations
Special quotations will automatically expire 30 days from issuance unless renewed in writing
by ABB Control Inc.
Assignment
Any assignment of this contract, or any rights hereunder, without prior written consent of ABB
Control Inc. by a duly authorized representative thereof shall be void.
Partial invalidity
If any provisions herein or portions thereof conflict with any statute or rule of law of the
jurisdiction of applicable law or wherein the contract may be sought to be enforced, then such
provisions or portions thereof shall be deemed void to the extent that they may so conflict,
but without invalidating the remaining portions of such provisions or other provisions hereof.
Remedies
The remedies expressly provided for in the Conditions of Sale shall be in addition to any
other remedies which ABB Control Inc. may have under the Uniform Commercial Code or
other applicable law.
Choice of law
The construction and performance of this contract and the rights and remedies of the parties
hereto shall be governed by the laws of the State of Texas.