ASCO Services Terms and Conditions of Sale

These terms and conditions of sale apply to parts
ordered and fulfilled by this web site.

TERMS AND CONDITIONS OF SALE

ASCO Services, Inc. is herein referred to as the “Seller” and the customer or person or entity purchasing goods or services (“Services”) and/or licensing software and/or firmware which are preloaded, or to be loaded into Services (“Software”) from Seller is referred to as the “Buyer.” These Terms and Conditions, any price list or schedule, quotation, acknowledgement or invoice from Seller relevant to the sale and license of the Services and all documents incorporated by specific reference herein or therein, including the Software License Agreement, constitute the complete and exclusive statement of the terms of the agreement governing the sale of Services and/or license of Software by Seller to Buyer. Seller’s acceptance of Buyer’s purchase order is expressly conditional on Buyer’s assent to all of Seller’s terms and conditions of sale, including terms and conditions that are different from or additional to the terms and conditions of Buyer’s. Buyer’s acceptance of the Services will manifest Buyer’s assent to these Terms and Conditions. If the Services described in Seller’s quotation, Seller’s scope of work, and/or Seller’s order acknowledgement differ, the document last approved in writing by a duly authorized representative of Seller shall apply. Seller reserves the right in its sole discretion to refuse orders.

1. DEFINITIONS: As used herein, the term Service shall include: A. Field Services. Equipment start up, repair, maintenance, calibration, cleaning and replacement of parts at Buyer’s location.

B. Contract Services. Maintenance and repair services performed under the Agreement or under a separate signed inspection and maintenance agreement.

C. Consulting Services. The process of assisting the Buyer in designing, implementing and/or modifying parameters and/or configurations of Seller goods.

D. Training Courses. On-site and off-site lectures, lab or classroom training. Seller is not responsible for transportation, lodging, meals and other expenses incurred by Buyer or its representative attending the course. Seller reserves the right to cancel a course due to insufficient enrollment with refund of all prepaid fees.

E. Service Center Repairs. Equipment repair, maintenance, calibration, cleaning and replacement of parts at Seller’s designated Service Center or factory. Service Centers are independent contractors to whom Seller delegates service work on occasion.

F. Goods. All equipment, repair parts and supplies, software and software media, manuals, documents, and other items except personal services furnished in connection with Field Services, Consulting Services, Training Courses and Service Center Repairs.

G. Modifications and Upgrades. Integrating new controls and/or switchgear components into existing switchgear. Upgrading an automatic transfer switch with the latest control panel where outdated equipment exists.

2. SERVICES PRICES PARTS AND MISCELLANEOUS:

A. Seller and Buyer agree:

i. the price of Services shall be Seller’s published price in effect at the date of order acceptance;

ii. all sales for Goods from Seller’s Service Center or factory are F.O.B. Seller’s Service Center or factory;

iii. in the event Buyer has withheld a mutually agreed upon ‘retention fee’ from payment to Seller, irrespective of any other payment terms, it shall become immediately due and payable six months from the date of Seller’s shipment to Buyer. Shipping contracts made by Seller shall be to Buyer’s account. All claims for loss or damage after risk of loss has passed to Buyer shall be filed by Buyer with he carrier. Buyer shall be liable to Seller for the full price of the goods, irrespective of loss or damage in transit. Seller shall not be required to provide freight cost receipts at the time of invoice.

B. Hourly prices are based on a standard eight hour work day between 8:00 AM and 5:00 PM, Monday through Friday, local time. All hours in excess or outside of this eight (8) hour period and those hours worked on Saturday including travel are charged 1.5 times the price list rate. Sunday and Seller holiday rates shall be 2.0 times the price list rate. Buyer shall pay for all time Seller representatives are working, traveling or waiting, whether on or off the job site, to provide Services.

C. Buyer shall be liable to Seller for all travel and living expenses incurred by Seller representatives in the course of providing Services (including without limitation, hotel, meals, air, rail, bus, taxi, car rental and automobile mileage if a personal or company vehicle is used). Prices do not include any applicable permits, licenses, taxes, including sales, use, property, import/export, value added, excise, or similar tax payments or import/export or customs duties imposed on the sale, delivery or use of Services; such assessments are for Buyer's account and Seller will add such assessments to the price.

D. The Buyer shall furnish to Seller, at no cost, suitable working space, storage space, adequate heat, telephone, light, ventilation, regulated electric power and outlets for testing purposes. These facilities shall be within a reasonable distance from where the Services are to be provided. Seller and its representatives shall have full and free access to the equipment in order to provide the necessary Services. Buyer shall provide the means to shut off and secure the power to the equipment to provide safe working conditions. Buyer shall inform Seller, in writing, at the time of order placement, of any known hazardous substance or condition at the site, including, but not limited to, the presence of asbestos or asbestos containing materials, and shall provide Seller with any applicable Material Data Safety Sheets regarding same. Any losses, costs, damages, claims and expenses incurred by Seller as a result of Buyer’s failure to so advise Seller shall be borne by Buyer. Buyer shall appoint a representative familiar with the site and the nature of the services to be performed by Seller to be accessible at all times that Seller personnel are at the site. Seller shall not be liable for any

expenses incurred by Buyer in removing, replacing or refurbishing any Buyer equipment or any part of Buyer’s building structure that restricts Seller access. Buyer personnel shall cooperate with and provide all necessary assistance to Seller. Seller shall not be liable or responsible for any work performed by Buyer.

3. TERMS OF PAYMENT: Unless otherwise specified by Seller, terms are net thirty (30) days from date of Seller’s invoice in U.S. currency. In the event Buyer has withheld a mutually agreed upon ‘retention fee’ from payment to Seller, irrespective of any other payment terms, it shall become immediately due and payable six months from the date of Seller’s shipment of Services to Buyer. Seller shall have the right, among other remedies, either to terminate this agreement or to suspend further performance under this and/or other agreements with Buyer in the event Buyer fails to make any payment when due, which other agreements Buyer and Seller hereby amend accordingly. Buyer shall be liable for all expenses, including attorneys’ fees, relating to the collection of past due amounts. If any payment owed to Seller is not paid when due, it shall bear interest, at a rate to be determined by Seller, which shall not exceed the maximum rate permitted by law, from the date on which it is due until it is paid. Should Buyer’s financial responsibility become unsatisfactory to Seller, cash payments or security satisfactory to Seller may be required by Seller for future deliveries and for the Services theretofore delivered. If such cash payment or security is not provided, in addition to Seller’s other rights and remedies, Seller may discontinue deliveries. Buyer hereby grants Seller a security interest in all Services sold to Buyer by Seller, which security interest shall continue until all such Services are fully paid for in cash, and Buyer, upon Seller’s demand, will execute and deliver to Seller such instruments as Seller requests to protect and perfect such security interest. Seller may preserve its interests in payment by enforcing any applicable mechanic’s, construction or similar lien rights, or demanding different terms of payment including, but not limited to, advance cash payment, whenever it appears to Seller that circumstances require such measures.

4. SHIPMENT AND DELIVERY: While Seller will use all reasonable commercial efforts to maintain the delivery date(s) acknowledged or quoted by Seller, all performance and shipping dates are approximate and not guaranteed. Seller reserves the right to make partial shipments. Seller, at its option, shall not be bound to tender delivery of any Services for which Buyer has not provided shipping instructions and other required information. If the shipment of the Services is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all storage costs and other additional expenses resulting therefrom. Risk of loss and legal title to the Services shall transfer to Buyer for sales in which the end destination of the Services is outside of the United States immediately after the Services have passed beyond the territorial limits of the United States. For all other shipments, risk of loss for damage and responsibility shall pass from Seller to Buyer upon delivery to and receipt by carrier at Seller’s shipping point. All shipments are F.O.B. Seller’s shipping point for shipment and delivery in the United States. Shipments shall be F.C.A. Seller’s shipping point (INCOTERMS 2000) as determined by Seller for shipments from any of Seller’s locations outside of the United States. Any claims for shortages or damages suffered in transit are the responsibility of Buyer and shall be submitted by Buyer directly to the carrier. Shortages or damages must be identified and signed for at the time of delivery.

5. LIMITED WARRANTY: Subject to the limitations of Section 6, Seller warrants that the Software will execute the programming instructions provided by Seller and that the Services manufactured by Seller will be free from defects in material and workmanship under normal use and regular service and maintenance for a period of thirty (30) days from the date Services were provided by Seller, provided that with respect to Services that are Modifications or Upgrades, the warranty shall be one (1) year from the date Services were provided by Seller, from the date of shipment of the Services by Seller, unless otherwise specified by Seller in writing. If Buyer elects to purchase an extended warranty, that warranty will be described in a separate document. Products purchased by Seller from a third party for resale to Buyer (“Resale Products’) shall carry only the warranty extended by the original manufacturer. IN ADDITION TO SECTION 7, THESE ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY SELLER WITH RESPECT TO THE SERVICES AND ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO SELLER IN SPECIFICATIONS, DRAWINGS OR OTHERWISE, AND WHETHER OR NOT SELLER’S PRODUCTS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER’S USE OR PURPOSE.

These warranties do not extend to any losses or damages due to misuse, accident, abuse, neglect, normal wear and tear, negligence (other than Seller’s), unauthorized modification or alteration, use beyond rated capacity, unsuitable power sources or environmental conditions, improper installation, repair, handling, maintenance or application or any other cause not the fault of Seller. To the extent that Buyer or its agents has supplied specifications, information, representation of operating conditions or other data to Seller in the selection or design of the Services and the preparation of Seller’s quotation, and in the event that actual operating conditions or other conditions differ from those represented by Buyer, any warranties or other provisions contained herein which are affected by such conditions shall be null and void.

If within thirty (30) days after Buyer’s discovery of any warranty defects within the warranty period, Buyer notifies Seller thereof in writing, Seller shall, at its option and as Buyer’s exclusive remedy, repair, correct or replace F.O.B. point of manufacture, or refund the purchase price for, that portion of the Services found by Seller to be defective. Failure by Buyer to give such written notice within the applicable time period shall be deemed an absolute and unconditional waiver of Buyer’s claim for such defects. All costs of dismantling, reinstallation and freight and the time and expense of Seller’s personnel and representatives for site travel and diagnosis under these warranties shall be borne by Buyer unless accepted in writing by Seller. Services repaired or replaced during the warranty period shall be covered by the foregoing warranties for the remainder of the original warranty period or ninety (90) days from the date of shipment, whichever is longer. For Service Center Repairs, the foregoing warranty provision shall apply provided that goods or parts are returned FOB Seller’s designated Service Center or factory, transportation charges prepaid, within the applicable time period of this warranty.

Buyer assumes all other responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of Services, either alone or in combination with other products/components.

6. LIMITATION OF REMEDY AND LIABILITY: THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER (OTHER THAN THE WARRANTY PROVIDED UNDER SECTION 7) SHALL BE LIMITED TO REPAIR, CORRECTION OR REPLACEMENT, OR REFUND OF THE PURCHASE PRICE UNDER SECTION 5. SELLER SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE AND THE REMEDIES OF BUYER SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE. IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL SELLER’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC SERVICES PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. BUYER AGREES THAT IN NO EVENT SHALL SELLER’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXTEND TO INCLUDE INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. The term “consequential damages” shall include, but not be limited to, loss of anticipated profits, business interruption, loss of use, revenue, reputation and data, costs incurred, including without limitation, for capital, fuel, power and loss or damage to property or equipment. It is expressly understood that any technical advice furnished by Seller with respect to the use of the Services is given without charge, and Seller assumes no obligation or liability for the advice given, or results obtained, all such advice being given and accepted at Buyer’s risk.

7. PATENTS AND COPYRIGHTS: Subject to the limitations of the second paragraph of Section 6, Seller warrants that the Services sold, except as are made specifically for Buyer according to Buyer’s specifications, do not infringe any valid U.S. patent or copyright in existence as of the date of shipment. This warranty is given upon the condition that Buyer promptly notifies Seller of any claim or suit involving Buyer in which such infringement is alleged and cooperate fully with Seller and permit Seller to control completely the defense, settlement or compromise of any such allegation of infringement. Seller’s warranty as to use patents only applies to infringement arising solely out of the inherent operation according to Seller’s specifications and instructions (i) of such Services, or (ii) of any combination of Services acquired from Seller in a system designed by Seller. In the event such Services are held to infringe such a U.S. patent or copyright in such suit, and the use of such Services is enjoined, or in the case of a compromise or settlement by Seller, Seller shall have the right, at its option and expense, to procure for Buyer the right to continue using such Services, or replace them with non-infringing Services, or modify same to become non-infringing, or grant Buyer a credit for the depreciated value of such Services and accept return of them. In the event of the foregoing, Seller may also, at its option, cancel the agreement as to future deliveries of such Services, without liability.

8. EXCUSE OF PERFORMANCE: Seller shall not be liable for delays in performance or for non-performance due to acts of God; acts of Buyer; war; fire; flood; weather; sabotage; strikes or labor disputes; civil disturbances or riots; governmental requests, restrictions, allocations, laws, regulations, orders or actions; unavailability of or delays in transportation; default of suppliers; or unforeseen circumstances or any events or causes beyond Seller’s reasonable control. Deliveries or other performance may be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer in the event of any of the foregoing, but the balance of the agreement shall otherwise remain unaffected as a result of the foregoing. If Seller determines that its ability to supply the total demand for the Services, or to obtain material used directly or indirectly in the manufacture of the Services, is hindered, limited or made impracticable due to causes set forth in the preceding paragraph, Seller may allocate its available supply of the Services or such material (without obligation to acquire other supplies of any such Services or material) among itself and its purchasers on such basis as Seller determines to be equitable without liability for any failure of performance which may result therefore.

9. CANCELLATION: Buyer may cancel orders only upon not less than thirty (30) days advance written notice and upon payment to Seller of Seller’s cancellation charges which include, among other things, all costs and expenses incurred, and, to cover commitments made, by the Seller and a reasonable profit thereon. Seller’s determination of such termination charges shall be conclusive.

10. CHANGES: Buyer may request changes or additions to the Services and/or Software consistent with Seller’s specifications and criteria. In the event such changes or additions are accepted by Seller, Seller may revise the price, license fees and dates of delivery. Seller reserves the right to change designs and specifications for the Services and/or Software without prior notice to Buyer, except with respect to Services being made-to-order for Buyer. Seller shall have no obligation to install or make such change in any Services manufactured prior to the date of such change.

11. NUCLEAR/MEDICAL: SERVICES SOLD HEREUNDER ARE NEITHER FOR USE IN ANY NUCLEAR AND RELATED APPLICATIONS NOR FOR USE AS COMPONENTS IN LIFE SUPPORT DEVICES OR SYSTEMS INTENDED FOR SURGICAL IMPLANT INTO THE BODY WITHOUT SELLER’S PRIOR WRITTEN CONSENT. Buyer accepts services with the foregoing understandings, agrees to communicate the same in writing to any subsequent purchasers or users and to defend, indemnify and hold harmless Seller from any claims, losses, suits, judgments and damages, including incidental and consequential damages, arising from such use, whether the cause of action be based in tort, contract or otherwise, including allegations that the Seller’s liability is based on negligence or strict liability.

12. ASSIGNMENT: Buyer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of Seller, and any such assignment, without such consent, shall be void.

13. SOFTWARE: Notwithstanding any other provision herein to the contrary, Seller or applicable third party licensor to Seller shall retain all rights of ownership and title in its respective Software, including without limitation all rights of ownership and title in its respective copies of such Software. Except as otherwise provided herein, Buyer is hereby granted a nonexclusive, non-transferable royalty free license to use the Software incorporated into the Services solely for purposes of Buyer properly utilizing such Services purchased from Seller. All other Software shall be furnished to, and used by, Buyer only after execution of Seller’s (or the licensor’s) applicable standard license agreement, the terms of which are incorporated herein by reference.

14. INSTALLATION: Buyer shall be responsible for receiving, inspecting, testing, storing, installing, starting up and maintaining all Services.

15. DOCUMENTATION: Seller shall retain ownership of all prints, drawings, schematics, manuals, specifications and other technical documents (“Documentation”), inventions, work product, copyright, software, patents, and other intellectual property rights made or evolved by Seller prior to, or in connection with, this Agreement. Buyer’s possession of such Documentation does not grant Buyer any rights or license, express or implied, therein and Buyer shall, upon Seller’s request, return immediately all copies of such Documentation to Seller. Buyer agrees to not reproduce the Documentation without Seller’s authorization and to not disclose such Documentation (other than Seller’s standard operating and maintenance manuals) to others or permit others to have access to such Documentation.

16. INSPECTION/TESTING: Buyer, at its option and expense, may inspect and observe the testing by Seller of the Services for compliance with Seller’s witness testing procedures prior to shipment, which inspection and testing shall be conducted at Seller’s plant at such reasonable time as is specified by Seller. Any rejection of the Services must be made promptly by Buyer before shipment. Tests shall be deemed to be satisfactorily completed and the test fully met when the Services meet Seller’s criteria for such procedures.

17. EXPORT/IMPORT: Buyer agrees that all applicable import and export control laws, regulations, orders and requirements, including without limitation those of the United States and the European Union, and the jurisdictions in which the Seller and Buyer are established or from which Services and Services may be supplied, will apply to their receipt and use. In no event shall Buyer use, transfer, release, import, export, Services in violation of such applicable laws, regulations, orders or requirements.

18. RETURNED GOODS: Except as may be otherwise provided with respect to warranty returns, advance written permission to return non-conforming goods must be obtained from Seller in accordance with Seller’s then current Return Material Authorization (RMA) procedures and a return authorization number issued. Such goods must be new, unused, of current manufacture and free of all liens, encumbrances, or other claims. Goods must be shipped freight prepaid to Seller. Goods returned without the prior written permission of Seller will not be accepted by Seller. Seller reserves the right to inspect goods prior to authorizing their return. Upon receipt of the returned goods, Seller will replace returned goods with conforming goods or, at Seller’s option, issue credit to Buyer in an amount equal to the billing price of the goods.

19. GENERAL PROVISIONS: These terms and conditions supersede all other communications, negotiations and prior oral or written statements regarding the subject matter of these terms and conditions. No change, modification, rescission, discharge, abandonment, or waiver of these terms and conditions shall be binding upon the Seller unless made in writing and signed on its behalf by a duly authorized representative of Seller. No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement these terms and conditions shall be binding unless hereafter made in writing and signed by the party to be bound, and no modification or additional terms shall be applicable to this agreement by Seller’s receipt, acknowledgement, or acceptance of purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to those set forth herein. Any such modifications or additional terms are specifically rejected and deemed a material alteration hereof. If this document shall be deemed an acceptance of a prior offer by Buyer, such acceptance is expressly conditional upon Buyer’s assent to any additional or different terms 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, 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 and signed by the party to be bound. All typographical or clerical errors made by Seller in any quotation, acknowledgement or publication are subject to correction. If any section or part of this Agreement is or becomes illegal, unenforceable or invalid as determined by a court of competent jurisdiction, then the aforementioned part or section shall be struck from this Agreement and shall not affect the remaining parts or sections except to the extent necessary to prevent a clearly inequitable result.

The validity, performance, and all other matters relating to the interpretation and effect of this agreement shall be governed by the law of the state of New Jersey without regard to its conflicts of laws principles. Buyer and Seller agree that the proper venue for all actions arising in connection herewith shall be only in New Jersey and the parties agree to submit to such jurisdiction. No action, regardless of form, arising out of transactions relating to this contract may be brought by either party more than two (2) years after the cause of action has accrued. The U.N. Convention on Contracts for the International Sales of Goods shall not apply to this agreement.


STLD01-1230782-1 Form ASI T&C 3828 – Rev. 11/28/06