This document contains the terms and conditions that apply to Customer’s purchases of Product or Products (defined herein) from VesCo Solutions, LLC (“VesCo” or “Seller”). By accepting delivery of Products from Seller, Customer agrees to be bound and to accept these terms and conditions. The terms and conditions contained herein shall apply unless Customer and Seller have otherwise agreed in a signed a separate purchase agreement with separate terms and conditions which expressly control.
1. Terms of Sale
Standard lead times apply to all orders. Accepted orders are non-cancelable and non-refundable, and Products (defined herein as industrial and electrical components and equipment and software; hereinafter “Products”) are non-returnable. Seller may adjust pricing in cases where Customer volume commitments are not met, at Seller’s sole discretion. Payment terms are net 30 calendar days from invoice date. Customer understands and acknowledges that Seller reserves the right at any time and for any reason to require payment in advance, in whole or in part, or otherwise to modify, suspend, or terminate any credit terms previously extended to Customer if applicable. Seller shall be entitled to refuse or delay shipments for failure by Customer to pay within terms any payments due Seller, whether on this or any other contract between Seller and Customer. All shipments are FOB shipping point for US domestic shipments and to locations outside the US. The full purchase price shall be invoiced upon delivery to a common carrier. In the event that it becomes necessary for Seller to incur collection costs or institute a suit to collect any amount due and payable, Customer further agrees to pay such additional collection costs, charges, and expenses, including any reasonable attorney’s fees. Customer understands and acknowledges that prices are subject to change without notice. Payments should be made according to the instructions on the face of the invoice, based on the form of payment described below.
2. Forms of Payment
Acceptable forms of payment include check, money order, wire transfer, or SWIFT Transfer. All invoices shall be paid in United States of America currency only (USD).
3. Shipping Charges; Taxes
Separate charges for shipping and handling (and taxes, if applicable) will be shown on the invoice(s). Unless Customer provides Seller with a valid and correct tax exemption certificate applicable to the Product ship-to location prior to Seller’s acceptance of the order, Customer is responsible for sales and all other taxes associated with the order.
4. Title; Risk of Loss
Title to Products and risk of loss passes from Seller to Customer upon shipment from Seller’s facilities and delivery of Product to a common carrier. Customer understands and acknowledges that title to software will remain with the applicable licensor(s).
5. Claims for Omitted or Damaged Goods
Any claims by Customer for omission of Products in the shipped goods, shortages of Product, or damaged goods in a shipment are waived by Customer unless Customer provides written notice to the Seller within 10 calendar days after Customer’s receipt of shipment.
6. Limited Warranty
(a) Seller warrants that Products will be free from defects in materials and workmanship for the period of time set forth from delivery in the below chart:
Seller warrants that software (including firmware) will materially conform to its published specification for a period of ninety (90) calendar days. Seller cannot and does not warrant that the software or any portion thereof is error free. Seller will have no warranty obligation with respect to Products subjected to abuse, misuse, negligence, modification or accident. After the ninety (90) calendar day period has lapsed, Products shall still be subject to applicable manufacturer’s warranties, if applicable. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT SELLER DOES NOT AND CANNOT GUARANTEE THAT THERE WILL BE AN APPLICABLE MANUFACTURER’S WARRANTY AFTER THE INITIAL 90 DAY LIMITED WARRANTY PERIOD.
Products may need to have the most current version of software or firmware to update successfully. Customer is responsible for ensuring Products are using the most current version of software and firmware. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES IT IS RESPONSIBLE FOR ANY NECESSARY MANUAL UPDATING OF PRODUCTS. THIS IS A CONDITION OF PRODUCT SALE BY SELLER.
If any hardware component of any Product fails to conform to the warranty in this Section, Seller shall, at its option, replace non-conforming Products with conforming Products or Products having substantially identical form, fit, and function and deliver the replacement Product to a carrier for land shipment to customer within a reasonable period after Seller receives from Customer (i) notice of such non-conformance, and (ii) the non-conforming Product provided. If a product is still under a manufacturer’s warranty, Seller shall help facilitate the repair process with said Product manufacturer. Customer understands and acknowledges that in the event the respective Product manufacturer cannot repair or replace on commercially reasonable terms, it may choose to refund the purchase price. Customer further understands and acknowledges that repair parts and replacement Products may be reconditioned or new, depending on availability at the respective Product manufacturer’s discretion. Repaired or replacement Products shall be subject to the warranty, if any remains, originally applicable to the Product repaired or replaced. Customer must obtain from Seller a Return Authorization Number (RA) prior to returning any Products to Seller. Customer understands and acknowledges that any Products returned under this warranty must be unmodified and in original packaging.
(b) As a condition to Seller’s obligations under the preceding paragraph in this section, Customer shall return all Products to be examined and replaced to Seller’s facilities, in shipping cartons clearly displaying the valid return authorization number provided by Seller. Customer shall bear the risk of loss for such return shipment as well as all shipping costs. Seller shall deliver replacements for Products determined by Seller to be properly returned and Customer shall bear the risk of loss and costs of shipment of repaired products or replacements. Products determined by Seller to be not properly returned shall be redelivered to Customer FOB Seller’s facilities upon payment of shipping costs by Customer.
(c) Seller’s sole obligation under the warranty described or set forth herein shall be to replace nonconforming products as set forth in this Section, facilitate the repair process with the Product’s manufacturer, or to refund the documented purchase price for non-conforming Products to Customer. Seller’s warranty obligations shall run solely to Customer, and Seller shall have no obligation to customers of Customer or other users of the Products.
7. Limitation of Warranty and Remedies
THE WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY APPLICABLE TO PRODUCTS PURCHASED BY CUSTOMER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED. VESCO’S LIABILTIY, WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE SHALL NOT EXCEED THE PURCHASE PRICE PAID BY CUSTOMER FOR THE PRODUCT. UNDER NO CIRCUMSTANCES WHATSOEVER SHALL VESCO BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
IN ADDITION TO THE WARRANTIES DISCLAIMED ABOVE, SELLER SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY AND WARRANTIES, IMPLIED OR EXPRESSED, FOR USES REQUIRING FAILSAFE PERFORMANCE IN WHICH FAILURE OF A PRODUCT COULD LEAD TO DEATH, SERIOUS PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE SUCH AS, BUT NOT LIMITED TO, LIFE SUPPORT OR MEDICAL DEVICES OR NUCLEAR APPLICATIONS. PRODUCTS ARE NOT DESIGNED FOR AND SHOULD NOT BE USED IN ANY OF THESE APPLICATIONS.
Seller shall defend or settle any claim, suit, or action against Customer based on an allegation that any Product purchased by Customer from Seller infringes any third party’s US patent or copyright; provided, that Customer has made no modification or alterations to the Product and that Customer gives Seller prompt written notice of any claim or suit, sole authority to
defend or settle as it sees fit, and full cooperation. Seller may, at its sole option and expense (i) defend the claim, suit or action (ii) procure for Customer the right to continue using the Product (iii) modify the product so that it is non-infringing (iv) procure a replacement product that has substantially the same functionality, or if none of the above options is reasonably available (iv) refund to customer the purchase price originally paid less a use credit for the period of use.
Seller has no liability for any claim, suit or action based in whole or in part upon or arising out of compliance with Customer’s designs, specifications or instructions, modification of the Hardware or Software, or the combination of the Hardware or Software with products or items not furnished by Seller. THIS SECTION STATES THE SELLER’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM, SUIT, OR ACTION THAT ALLEGES INFRINGEMENT OF ANY THIRD PARTY PATENT OR COPYRIGHT.
9. Software and Software Updates
Customer understands and acknowledges that all software, including firmware, is owned by Seller or a third party licensor who shall retain exclusive right, title and ownership of the software. Customer is only granted a limited, personal, non-exclusive license, without the right to sublicense, to use the software with the specific Seller manufactured hardware that such software is intended to operate with or, if not for use with specific Seller manufactured hardware, then for the use intended by the Product specification. Products may need to have the most current version of software or firmware to update successfully. Customer is responsible for ensuring its Products are updated to the most current version of software and firmware and all other manual updating of Products. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES IT IS RESPONSIBLE FOR ANY NECESSARY MANUAL UPDATING OF PRODUCTS. THIS IS A CONDITION OF PRODUCT SALE BY SELLER.
10. Governing Law
THIS AGREEMENT AND ANY SALES THEREUNDER SHALL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF KENTUCKY. Customer understands and acknowledges that The United Nations Convention on Contracts for the International Sale of goods shall not apply.
The parties agree that the courts of the Commonwealth of Kentucky shall have exclusive jurisdiction over any claim, or dispute or controversy against Seller, its agents, employees, successors, assigns or affiliates arising out of or relating to this document, Seller’s Products advertising, or any related purchase. Customer hereby understands and consents to the exclusive jurisdiction of the courts of the Commonwealth of Kentucky, sitting in Jefferson County and its appellate courts, for the purpose of all legal actions and proceedings arising out of or relating to this Agreement or the transactions it contemplates.
12. Force Majeure
Seller shall not be liable for any damages or penalty for delay in delivery or for any other failure to perform in accordance with the terms and conditions hereof if such delay or failure to perform resulting directly or indirectly from acts of God, civil or military authority, acts of the public enemy, war, pandemic, accidents, natural disasters or catastrophes, strikes or other work stoppages or any other cause beyond Seller’s reasonable control, including, but not limited to, delay in transportation, unavailability of materials or delay in delivery by Seller’s vendors.
Any waiver of or modification to the terms of this Agreement will not be effective unless executed in writing and signed by both parties. If any provision of these terms and conditions are held to be unenforceable, in whole or in part, such holding shall not affect the validity of the other provisions of this document.
In the event of any inconsistency between these terms and conditions and / or any other related agreements between Customer and Seller, the terms of this document shall prevail, unless any other agreements are signed by both parties and specifically state that its terms and conditions
14. Entire Agreement
The terms and conditions set forth herein constitute the entire agreement between Seller and Customer. Seller’s offer to sell is expressly limited to the terms stated herein. Seller shall not be bound by any terms of Customer’s order which add to, modify, or are in any way different from the terms set forth in this document.