A. Controlling Effect
These standard terms and conditions of sale (the “Terms and Conditions of Sale”), together with the proposal/quotation (the “Quotation” and collectively with the Terms and Conditions of Sale, the “Contract”), shall govern the sale of products by Robinson Fans, Inc. (“Robinson”). The Contract shall be controlling and no differing or additional provisions or conditions shall be binding upon Robinson unless accepted in a writing signed by Robinson expressly stating that these Terms and Condition of Sale do not apply. In the event of a conflict or inconsistency between these Terms and Conditions of Sale and the Quotation, the Purchase Order will prevail.
B. Additional or Differing Terms
Absent such a signed writing as described in the last sentence of I.A. immediately above, signing or initialing by Robinson of any Purchase Order, Work Order, or other Purchaser documentation, or performance and/or delivery by Robinson, shall constitute assent and acceptance by Robinson solely of those terms and conditions of Purchaser which are consistent with and not contrary to the Terms and Conditions of Sale. The Terms and Conditions of Sale are and shall be deemed a notice of objection to all additional or different terms of Purchaser and a rejection thereof. Should the Terms and Conditions of Sale be deemed an acceptance (in terms of chronological sequence of document deliveries), it is expressly made conditional on Purchaser’s assent to all additional and different terms contained herein, irrespective of any correspondence, document or other writing issued by Purchaser stating that Robinson’s performance constitutes acceptance of Purchaser’s terms.
C. Written Approval Required
All agreements, understandings, terms and conditionals must be confirmed and approved in writing signed by an authorized representative or Robinson.
D. Purchaser’s Acceptance
This Quotation and the Terms and Conditions of Sale shall be deemed accepted by Purchaser in their entirety upon or by acknowledgement of the price for the Products set forth therein: (i) by means of oral confirmation; (ii) by the course of conduct of Purchaser; or (iii) by the return or delivery by Purchaser, wither prior or subsequent hereto, of a signed purchase order or work order.
E. Purchaser Authorized Representatives
Purchaser represents and warrants that each Purchaser Authorized Representative has sufficient powers of attorney to execute, and to bind Purchaser. No modification or revocation of such powers of attorney will be effective for purposes of the Contract until Purchaser notifies Robinson in writing.
Services and products (the “Products”) shall be defined and limited solely to the specific description of (i) the goods, equipment, parts and associated accessories and components to be designed, manufactured, assembled and/or delivered by Robinson, and/or (ii) the services to be performed by Robinson, all as expressly outlined in Robinson’s Quotation, or any modifications thereto agreed by Robinson and Purchaser in writing.
B. Supervisory Services
In the event any services to be performed by Robinson as part of its obligations consist of supervising and/or inspecting the work of others, Robinson’s responsibilities shall consist solely of, and shall not extend beyond, the following:
A. Risk of Loss
All shipments are made f.o.b. Robinson’s designated plant or facility (unless otherwise specified in the Quotation or in a separate writing signed by an authorized representative of Robinson) and risk of loss shall pass to Purchaser once the items to be shipped are duly delivered to the carrier.
B. Delivery and Installation Cost
All costs incidental to delivery, installation of equipment in Purchaser’s (or end user’s) plant, and inspection of all equipment and work shall be borne by Purchaser, except where otherwise stipulated in writing and accepted and approved by an authorized representative of Robinson.
C. Packaging and Shipment
Robinson shall package all products in suitable containers in accordance with its standard commercial practices. Purchaser must notify Robinson in writing of any special or additional packaging requirements, which will be at Purchaser’s expense.
D. Delivery Equipment
Purchaser shall return delivery equipment furnished by Robinson to the carrier within 48 hours after arrival. Purchaser shall pay all demurrage or detention charges on Purchaser’s delivery equipment and shall pay Robinson for the full cost of any delivery equipment that is not timely returned. Purchaser shall not return delivery equipment with more than a negligible (<1%) amount of Products remaining, unless otherwise provided in the Quotation, and Robinson will not be responsible for amounts of Products not removed during unloading of the delivery equipment.
The purchase price (the “Purchase Price”) is stated in the Purchase Order and will be based on U.S. Dollars. The Purchase Price shall not include shipping charges and local or state sales and/or use taxes, if any. The burden of payment and the collection of applicable state sales and/or use taxes, if any, is on the Purchaser. Robinson as the seller, has not taken the collection of these taxes in to account in calculating the price reflected in its Quotation or any invoice. Robinson may change prices, by written notice, due to changes in customs duties, taxes, vendor prices, foreign exchange fluctuations, currency regulations, or other factors beyond Robinson’s control including Force Majeure, until the moment of Delivery.
The performance of all work and delivery of all equipment and other goods hereunder is subject to delay or impossibilities resulting from strikes, accidents, governmental actions or regulations, delays or stoppages in transportation, inability to obtain necessary services, materials or products from usual sources, or any other causes beyond Robinson’s control.
Any delays caused by or at the request of the Purchaser will be documented, invoices and charged to Purchaser as additional labor, overhead and material in accordance with Robinson’s then current standard rates. Purchaser shall, in the event of any such delays, pay interest to Robinson on all amounts which would otherwise be due to Robinson for the entire period of such delay, with interest of such amounts to accrue at the highest non-usurious rate. Purchaser shall also pay a storage cost to Robinson for such period of delay in accordance with Robinson’s then current standard rate.
All orders entered upon or books are subject to approval of credit by Robinson. If Purchaser fails to pay for any one or more shipments when due, then Robinson shall have the right, in addition to other remedies, either
a. to suspend further deliveries,
b. to require cash payment on further deliveries, or
c. to cancel this Contract.
Should Purchaser’s financial responsibility become unsatisfactory to Robinson, cash payment or satisfactory security may be required by Robinson before proceeding with further deliveries. Such election by Robinson shall not relieve Purchaser from ordering, accepting and paying for the contracted quantity.
Should Purchaser’s credit request be rejected or reasonably revoked at any time prior to performance or delivery, payment of the quoted price for all work and equipment/goods shall be paid in full prior to performance of services and/or shipment of any goods or equipment.
The Terms and Conditions of Sale and the Quotation are not subject to cancellation except with written consent of Robinson and upon terms that will indemnify Robinson against all Loss by said cancellation.
A. Express Warranty
Robinson warrants all equipment and other goods it manufactures in accordance with the Products defined in the Quotation to which the Terms and Conditions of Sale relate to be free of defects in materials and workmanship for a period of either ONE (1) YEAR from the date of installation (or, if applicable, start-up) of said goods and equipment at the customer’s/end user’s plant or facility; or EIGHTEEN (18) MONTHS from the date Robinson ships said items of goods and equipment per the applicable shipment terms set forth herein (the “Original Warranty Period”), whichever period expires first (or for such other period of warranty as expressly set forth in said Quotation or per separate written agreement signed by an authorized representative of Robinson). If any of the Products is subject to repair or replacement during the Original Warranty Period, such Product shall be replaced and the Original Warranty Period shall be extended for ONE (1) YEAR (the “Extended Warranty Period”); provided that, the aggregate warranty period, including the Original Warranty and the Extended Warranty Period shall, in no event exceed TWO (2) YEARS as of the date on which the goods and equipment were Delivered by Robinson hereunder.
B. Warranty Disclaimer
There are no warranties, express or implied, which extend beyond the description on the face hereof and the quotation to which the Terms and Conditions of Sale relate. This proposal is made subject to the condition that no implied warranties shall apply, including warranty of merchantability, warranty of fitness for any particular purposes whatsoever, or any other implied warranty. Robinson shall not be bound by any representation or warranties not expressly set forth in this warranty provision of the Terms and Conditions of Sale.
C. Voiding of Warranty – Operation Limits
The express warranty on the equipment does not guarantee against abrasion, erosion and wear, nor does the express warranty guarantee against failure due to operation under conditions which are in excess of design limits or operational standards and limitations reflected on the Quotation or, to the extent different, in the particular owner’s/operational manual or in any approval drawings. Purchaser shall operate the equipment in strict compliance with all operational standards and limitations specified within the particular owners/operational manual provided to Purchaser with such equipment. Any warranty claims forwarded to or otherwise made against Robinson must be accompanied by appropriate documentation demonstrating that limitations. Under no circumstances shall Robinson be held responsible or liable for Purchaser’s selection of, or failure to select, materials of construction which need to be incorporated into the manufacture and construction of any of the parts, equipment linings or other components forming a part of the Products in order for the finished goods or products to properly function in and endure any special, peculiar or extraordinary conditions, in or under which Purchaser will be using or operating such finished goods or products. Purchaser shall be solely responsible for making certain that any such special material and construction needs are made known to Robinson and adequately incorporated into Robinson’s design and manufacture of the subject goods and products.
D. Voiding of Warranty – Alterations, Improper Use and Failure to Follow Robinson Recommendations
Any of the following will void the express warranty made by Robinson: (1) any alterations to the equipment or other goods sold by Robinson without its express written authorization, whether any such actions occur in the transportation, erection, use, maintenance or monitoring of the equipment or goods sold, (2) the failure of the Purchaser or its successors to observe operational and safety standards and limitations and design limits established by Robinson in the Quotation, the applicable owners/operational manual, or any approval drawings, whether any such actions occur in the transportation, erection, use, maintenance or monitoring of the equipment or goods sold, or (3) the failure of Purchaser to purchase the items recommended by Robinson for use with its product whether the recommendation was oral or in the Quotation. Purchaser represents and warrants that none of the goods or equipment sold by Robinson as part of its Products will be operated under conditions which exceed or violate any of the operational standards and limitations or design limits specified or established by Robinson (the existence of any of these prohibited operating conditions voids the express warranty made by Robinson).
E. Warranty Exclusions
All items of equipment, parts and other materials specified, required or ordered by the Purchaser which, although intended to be included in, attached to or operated in conjunction with the equipment to be manufactured by Robinson under this Quotation, are manufactured and/or incorporated into Robinson’s work by someone other than Robison, shall carry only the guarantee and warranty as supplied by that separate manufacturer and shall carry no guarantee or warranty, express or implied, of Robinson, nor shall Robinson be liable in any way whatsoever for any such third party goods, or any failure thereof. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF ROBINSON CONTAINED IN THE CONTRACT, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ROBINSON MAKES NO OTHER REPRESENTATIONS OR WARRANTIES AND ASSUMES NO RESPONSIBILITY, EXPRESSED OR IMPLIED, FOR THE CONDITION, PERFORMANCE, MAINTENANCE, MANUFACTURE, OR DESIGN OF THE PRODUCTS. Purchaser agrees that its only recourse and recovery under these circumstances will be against a said outside manufacturer.
G. Exclusivity of Remedy
The remedies provided herein constitute the sole and exclusive remedies available to Purchaser upon occurrence of any breach of warranty or other default of Robinson.
H. Damage Limitation
ROBINSON’S LIABILITY FOR BREACH OF WARRANTY OR OTHER DEFAULT SHALL IN NO CASE EXCEED THE PURCHASE PRICE. UNDER NO CIRCUMSTANCES WILL ROBINSON BE LIABLE FOR ANY LOSS PROFITS, PUNITIVE, INCIDENTAL AND CONSEQUENTIAL DAMAGES AND ANY OTHER INDIRECT DAMAGES OF PURCHASER OR END USER, INCLUDING, BUT NOT BEING LIMITED TO, DAMAGES IN THE NATURE OF LOSS OF USE OR PRODUCTION AND LOST PROFITS. UPON EXPIRATION OF THE WARRANTY PERIOD (PARAGRAPH 8A AS TO GOODS/EQUIPMENT) OR INSPECTION AND ACCEPTANCE (PARAGRAPH 8F(II) AS TO SERVICES) SPECIFIED HEREINABOVE, ROBINSON SHALL HAVE NO FURTHER LIABILITY TO PURCHASER WHATSOEVER FOR ANY DAMAGES, CLAIMS OR LOSSES OF ANY TYPE, AMOUNT OR NATURE RESULTING FROM OR ARISING OUT OF THE PRODUCTS OR ANY GOODS OR SERVICES, AS THE CASE MAY BE, FORMING A PART THEREOF.
I. Waiver of Other Actions
Purchaser hereby waives any and all causes of action and rights to sue under theories of recovery in tort and strict/absolute liability. Purchaser’s sole and exclusive recourse against Robinson for any damages arising out of Robinson’s performance of the Products under the Terms and Conditions of Sale and the Quotation to which they pertain shall be an action in contract as defined and limited by these terms and conditions, and in particular, the provisions under this Paragraph 8.
J. Warranty for Third Party Work
Robinson shall not under any circumstances be liable for any charges on account of work performed by third parties in connection with Robinson’s services or on equipment or goods furnished by Robinson unless such work and charges are approved by Robinson in writing and in advance of the performance of any such work.
To the extent dictated by developments over which Robinson has no control, Purchaser agrees in advance to reasonable changes in prices, work schedules, data and design with advance notice.
Purchaser shall have a period of twenty (20) days from date of Delivery to examine and inspect all Products shipped to Purchaser by Robinson pursuant to the Terms and Conditions of Sale and the Quotation to which they relate. Should Purchaser determine that the Products delivered fail to conform in any respect to the specifications and designs agreed upon in Robinson’s Quotation, Purchaser shall notify Robinson of such fact in writing within ten (10) days from the end of the stated inspection period detailing each and every defect which Purchaser claims to exist and on which Purchaser intends to rely as a full and final expression of non-conformity. Purchaser shall, with respect to Robinson’s performance of services, have those inspection rights set forth in Paragraph VIII.F.(2) hereinabove. Failure to so timely inspect or failure to timely notify Robinson of any claimed defects as required herein shall constitute acceptance of the services, equipment and good by Purchaser, precluding any subsequent effort by Purchaser to reject said items or work. These inspection rights granted Purchaser shall not affect in any way the time payment of the full price for the services, equipment and goods is due to Robinson under the Terms and Conditions of Sale and the Quotation to which they relate.
In the event any services are required at Purchaser’s property or other location specified in the Quotation, the Purchaser will remove all debris and obstructions at its own risk and cost to provide Robinson with a clean and safe working environment.
Robinson requires safe, reasonable access to its immediate work area 24 hours per day for the duration of its work, and it shall be Purchaser’s responsibility to provide such a safe work place and environment.
The Purchaser shall provide Robinson with all material safety data sheets for any materials with which Robinson personnel may come into contact in performing its Products. The Purchaser shall also provide any specially required personal protective equipment to insure the safety of Robinson personnel while on the Purchaser’s (or end user’s, as the case may be) premises.
If the Products set forth in the Quotation includes monitoring the vibration levels of the fan upon start-up and balancing the fan, and if for some reason the Purchaser cannot run the fan motor upon completion of the description of the Products, requiring additional periods of service than those originally agreed, this additional time will be documented, invoiced and charged to Purchaser as additional labor, overhead and material at Robinson’s then current standard rates.
The base price, as quoted in the Robinson’s Quotation, does not include any equipment, parts, services, materials or any related items unless specifically described and set forth in detail on said Robinson Quotation. If it is necessary to incorporate into the description of the Products items or services not covered in the base bid price, these additional items and/or services will be documented, invoiced and charged to Purchaser as additional labor, overhead and material at Robinson’s then current standard rate.
B. Accessory Parts
It is the responsibility of the Purchaser to have on hand all parts, components and other Purchaser furnished equipment and all Purchasers furnished outside subcontracted labor prior to Robinson starting its work. Purchaser shall be subject to all delay charges per Paragraph V. hereinabove should any of said items or services not be timely Delivered.
C. Work Period
Prices quoted in the base bid price for service are for one (1) eight-hour shift per day, working Monday through Friday. Base bid price does not include any weekend, holiday or premium time.
Purchaser represents that it is an expert in the use and handling of the Products. Purchaser shall comply with all appropriate safe handling and use procedures and all safety and health related governmental requirements concerning the Products and shall use commercially reasonable efforts to inform its employees, agents, contractors, customers and other persons and entities of proper use and handling requirements and of the risks associated with the Products, including with handling, shipment, storage, use and disposal of the Products. Purchaser shall not deliver or consign commercial or sample quantities of Products to any party whom Purchaser reasonably believes will handle, transport, use, store or dispose of Products in a dangerous manner or contrary to law or Robinson’s advice.
All wiring, instrumentation and/or control system work necessary to make any of the services performed and/or the goods or equipment Delivered by Robinson as part of its Products fully operational shall be the sole responsibility of Purchaser or others.
Purchaser shall not use the trademarks of Robinson without Robinson’s prior written approval. No license or right to use Robinson’s trademarks is implied or granted. Purchaser may add labels or stickers to the Products only to comply with registration, importation or use requirements under applicable law. To the extent practicable, Purchaser’s labels and stickers shall not affect, edit, alter, block or remove any copyright, trademark, trade secret, proprietary information, serial number and/or other notices of Robinson contained on or in the Products.
Purchaser shall be responsible for processing all required registrations and importation permits to import the Products into the location specified in the Quotation and shall comply, prior to importing the Products, with all requirements under applicable law regarding labeling, safety and usage, health and environmental requirements, registration, importation and exportation permits of chemicals, vegetal nutrients and hazardous and toxic substances, and with all other applicable laws and regulations. Purchaser represents and agrees that its activities in connection with the Contract comply with the U.S. Foreign Corrupt Practices Act and any other similar act in Mexico. Purchaser shall not pay, promise to pay, or authorize the payment of any money or anything of value, directly or indirectly to any person (whether a government official or private individual) for the purpose of illegally or improperly inducing any official or political party or official of that political party in obtaining or retaining business, or taking any other action favorable to Purchaser or its business.
A. Indemnification by Robinson
Robinson shall defend, indemnify and hold harmless Purchaser, its officers, directors, employees, attorneys, agents, and affiliated companies from any and Losses determined by a non-appealable judgment or award, whether rendered by a court or arbitral panel, arising out of, in connection with, or resulting from (i) the gross negligence of Robinson, or (ii) the breach by Robinson of any of its representations, warranties, covenants or agreements hereunder. Robinson’s indemnification obligations hereunder shall not exceed, in the aggregate, the Purchase Price. Purchaser shall provide any assistance reasonably requested by Robinson in connection with any such contest; provided, however, that at its election and at its sole expense, Purchaser shall have the right to participate in the defense of any action against it.
B. Indemnification by Purchaser
Purchaser shall defend, indemnify and hold harmless Robinson, its officers, directors, employees, attorneys, agents, and affiliated companies from any and all Losses arising out of, in connection with, or resulting from (i) the ownership and operation of the Products by Purchaser from and after its Delivery, unless such Losses are the result of gross negligence of Robinson, or (ii) the breach by Purchaser of any of its representations, warranties, covenants or agreements hereunder. Except in the event of fault, willful misconduct or negligence by Purchaser, Robinson shall provide any assistance reasonably requested by Purchaser in connection with any such contest; provided, however, that at its election and at its sole expense, Robinson shall have the right to participate in the defense of any action against it.
Purchaser shall consider as confidential all information furnished to Purchaser relating to or as a result of the Contract. Purchaser shall (i) hold in confidence all information supplied by Robinson, (ii) not reproduce, use, or disclose such information to others without Robinson’s prior written consent, and (iii) return such information to Robinson upon Robinson’s demand, except for necessary disclosures to Purchaser’s employees or agents to complete its obligations under the Contract.
All drawback of duties paid on items entering into manufacture of the Products shall accrue to Robinson, and Purchaser will furnish Robinson, wherever possible all documents necessary to obtain payment of such drawbacks and expenses and will cooperate with Robinson in obtaining such payment.
The Contract embodies the entire agreement and understanding of the parties related to its subject matter and supersedes all prior proposals, understandings, agreements, correspondence, arrangements and contemporaneous oral agreements relating to the subject matter of the Contract. None of Purchaser’s terms and conditions, if any, shall apply in acknowledging the Contract or in the delivery of a purchase order, nor shall any modification or amendment be effected by the acknowledgment or acceptance of Purchaser’s purchase order form or other forms containing additional or differing terms and conditions. Reference to Purchaser’s bids or proposals, or noted on any purchase order or otherwise, shall not affect the provisions of the Contract. No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain or supplement the terms or conditions of the Contract will be binding unless the party to be bound has agreed in writing, and no modification shall be effected by the acknowledgment or acceptance of sale or shipping instruction forms containing terms or conditions at variance with or in addition to those in the Contract.
Robinson shall have no responsibility for or liability with respect to any failure or delay in the performance of any term or condition in the Contract, including any delay or failure to Deliver any or all of the Products as provided in Section V, if such failure or delay in performance is due to any cause which is unforeseeable, unavoidable, and beyond Robinson’s reasonable control, including, but not limited, to acts of God, flood, fire, strike, industrial unrest, acts of war, terrorism, insurrection, riot, public demonstrations, or civil disorder, or any order, decree, law, or regulation of any governmental authority, failure or delay in obtaining any governmental approvals due to governmental inactivity, delay or failure on the part of carriers, suppliers or subcontractors, or interruption of supply or transportation means (“Force Majeure”). In the event of Force Majeure, Robinson’s performance of the Contract shall be suspended until such Force Majeure ceases to exist, and the time for performance shall be extended for a period of time equal to the time of the suspension, or for a greater period of time deemed adequate in light of the particular circumstances as agreed by the parties in writing.
A. Governing Law, Venue and Jurisdiction
The Terms and Conditions of Sale and the Quotation, of which they form a part, shall be construed under, governed by and enforced in accordance with the laws of the Commonwealth of Pennsylvania. Jurisdiction and venue for any action to enforce or interpret these Terms and Conditions of Sale and/or the associated Quotation shall be in either the state or federal district court for Butler County, Pennsylvania. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Contract.
“Losses” shall be defined as (1) all liabilities, damages, losses, claims, demands, causes of action, settlement payments, costs and expenses, interest, awards, judgments, fines, fees and penalties and other charges (whether pertaining to injuries to property or injuries or death to persons (including, but not limited to, all costs, expenses or reasonable attorney’s fees incurred by Robinson)), and (2) all court filing fees, court costs, arbitration fees or costs, witness fees, and each other fee and cost of investigating and defending or asserting a claim for indemnification under the Contract, including attorneys’ fees, other professionals’ fees, and disbursements.
“Purchaser” shall be defined as the company to whom Robinson has submitted its Quotation of which these terms and conditionals form a part, as set forth on the face of such Quotation. Errors in the printing or spelling, or incomplete designation of, the entity name shall not affect the liability of the intended Purchaser hereunder.
“End User”, or similar terms, shall be defined as the company who actually uses at its business premises or in connection with its business operation the goods and equipment sold by Robinson per the Quotation and its Products.
“Customer”, if not the end-user, shall be defined as the company, if any, to whom Purchaser actually sells the goods and equipment, sold by Robinson to Purchaser per this Quotation and the Products.
“We”, “us” or “our” shall, unless the context otherwise indicates, mean Robinson. “Robinson” shall mean Robinson Fans, Inc.