Terms & Conditions

These terms and conditions, the attendant quotation or acknowledgment, and all documents incorporated herein by reference bind Robert E. Mason & Associates, Inc. (“Seller”), upon complete execution of this agreement, for the sale of goods (“Goods”); the license of software and/or firmware (“Software”) which are preloaded, or to be loaded, into and used in connection with the Goods to be provided hereunder; and the services to be rendered in connection with the installation of the Goods and the Software to be provided hereunder (the “Services”) and bind the buyer ( “Buyer”), and constitute the entire agreement (“Agreement”) between Buyer and Seller regarding such Goods, Software and Services.  This Agreement shall apply and supersede any and all pre-printed terms on any order, Project Agreements, invoices and other related documents issued by the parties.

 
1.  TERMS OF PAYMENT:  Subject to the approval of Seller’s credit department, terms are F.O.B. shipping point, freight pre-pay and add, net 30 days from date of Seller’s invoice in U.S. currency,
 
2.  PRICES:  Unless otherwise specified by Seller, Seller’s price for the Goods, Software and Services shall remain in effect for thirty (30) days after the date of Seller’s quotation or acceptance of the order for the Goods, Software and Services whichever is delivered first, provided an unconditional, complete authorization for the immediate manufacture and shipment of the Goods and performance of Services pursuant to Seller’s standard order processing procedures is received and accepted by Seller within such time period. 
 
3.  DELIVERY AND DOCUMENTATION:  All shipping dates are approximate and are based upon Seller’s prompt receipt of all necessary information from Buyer to process the order properly.  Seller shall provide Buyer with that data/documentation which is specifically identified in the quotation.
 
4.  EXCUSE OF PERFORMANCE:  Seller shall not be liable for delays in performance or for non-performance due to changes ordered by Buyer, delay by Buyer, acts of God, adverse weather conditions, unavoidable consequences, war, riot, fire, labor disputes, unusual delay in deliveries, unavailability of materials or components, explosion, accident, compliance with governmental requests, laws, regulations, orders or actions, or unforeseen circumstances or causes beyond Seller’s reasonable control.
 
5.  TERMINATION AND SUSPENSION BY BUYER:  Buyer may terminate or suspend its order for any or all of the Goods, Software and Services covered by the Agreement, provided that Buyer gives Seller reasonable advance written notice of such termination or suspension and reimburses Seller for all losses, damages, costs and expenses arising from such termination or suspension.
 
6.  LIMITED WARRANTY:  Subject to the limitations contained in Section 7 and except as otherwise expressly provided herein, Seller warrants that the firmware will execute the programming instructions provided by Seller, and that the Goods manufactured or Services provided by Seller will be free from defects in materials or workmanship under normal use and care until the expiration of the applicable warranty period.  Goods are warranted for twelve (12) months from the date of initial installation or eighteen (18) months from the date of shipment by Seller, whichever period expires first.  Consumables and Services are warranted for a period of 90 days from the date of shipment or completion of the Services.  If Buyer discovers any warranty defects and notifies Seller thereof in writing during the applicable warranty period, Seller shall, at its option, promptly correct any errors that are found by Seller in the firmware or Services, or repair or replace F.O.B. point of manufacture that portion of the Goods or firmware found by Seller to be defective, or refund the purchase price of the defective portion of the Goods/Services.  Seller shall not be obligated to pay any costs or charges incurred by Buyer or any other party except as may be agreed upon in writing in advance by an authorized Seller’s representative. Goods repaired and parts replaced during the warranty period shall be in warranty for the remainder of the original warranty period or ninety (90) days, whichever is longer.  This limited warranty is the only warranty made by Seller and can be amended only in a writing signed by an authorized representative of Seller.  Except as otherwise expressly provided in the Agreement, THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO ANY OF THE GOODS OR SERVICES.
 
7.  LIMITATION OF REMEDY AND LIABILITY:  SELLER SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE.  THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY HEREUNDER SHALL BE LIMITED TO REPAIR, CORRECTION OR REPLACEMENT UNDER THE LIMITED WARRANTY CLAUSE IN SECTION 6.  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 EXCEED THE PRICE TO BUYER OF THE SPECIFIC GOODS, SOFTWARE AND SERVICES DELIVERED 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, LOSS OF USE, LOSS OF REVENUE AND COST OF CAPITAL.
 
8.  PATENTS:  Subject to the limitations contained in Section 7, Seller shall defend any suits brought against Buyer based on a claim that use of the Goods delivered by Seller or use of the Software constitutes an infringement of a valid patent of the United States, and shall pay any damages awarded therein against Buyer, provided that Buyer: promptly notifies Seller in writing of the filing of such suit or the threat thereof; permits Seller to control completely the defense or compromise of such claim of infringement; and provides all reasonable assistance and cooperation requested by Seller for the defense of such suit.  In the event that only the Goods delivered by Seller are held to be infringing in such suit and their use is enjoined, Seller shall, at Seller’s option and expense, procure for Buyer the right to continue using the Goods, replace them with a non-infringing product or modify them so they become non-infringing.  Buyer agrees that Seller shall not be liable for infringement, and that Buyer shall fully indemnify Seller therefore, if infringement is based upon the use of Goods in connection with goods not delivered by Seller or in a manner for which the Goods were not designed by Seller or if the Goods were not designed by Seller or if the Goods were designed by Buyer or were modified by or for Buyer in a manner to cause them to become infringing.
 
9.  TAXES:  Any tax or governmental charge or increase in same hereafter becoming effective increasing the cost to Seller of producing, acquiring, selling or delivering the Goods, the Software or the Services, and any tax now in effect or increase in same payable by the Seller because of the manufacture, sale or delivery of the Goods, the Software or the Services may at Seller’s option, be added to the price herein specified.
 
 
10.  SOFTWARE AND COMPUTER PROGRAMS:  Notwithstanding any other provision herein to the contrary, Seller or applicable third-party owner shall retain all rights of ownership and title in its respective firmware and software, including all copyrights relating to such firmware and software and all copies of such firmware and software.  Except as otherwise provided herein, Buyer and Owner are hereby granted a nonexclusive, royalty free license to use firmware incorporated into the Goods and Software only in conjunction with such Goods and only at the Buyer’s or Owner’s plant site where the Goods are used.  Buyer or Owner may negotiate with Seller separate licenses to use such copies and firmware and software at other plant sites.  Buyer and owner’s use of certain firmware (as specified by Seller) and all other software shall be governed exclusively by Seller’s and/or third-party owner’s applicable license terms. Subscription-based software licenses or services have a specified subscription term or license term (“Subscription Term”). Notwithstanding anything to the contrary herein or in any agreement between the Parties, Subscription Terms are non-cancelable, and fees paid are non-refundable. If a Subscription Term is terminated prior to the end of the Subscription Term, all amounts that would have become due for the remainder of the Subscription Term shall accelerate and become immediately due and payable. Fees for subscription software offerings are due annually in advance.
 
11.  BUYER SUPPLIED DATA:  To the extent that Seller has relied upon any specifications, information, representation of operating conditions or other data supplied in writing by Buyer to Seller in the selection or design of the Goods or 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 and relied upon by Seller, any warranties or other provisions contained herein which are affected by such condition shall be null and void.
 
12.  GENERAL PROVISIONS:  (a) Buyer shall not assign its rights or obligations under the Agreement without Seller’s prior written consent.  (b) There are no understandings, agreements or representations, express or implied, not specified in the Agreement.  (c) No action, regardless of form, arising out of transactions under the Agreement, may be brought by either party more than two (2) years after the cause of action has accrued.  (d) Any modification of these terms and conditions must be set forth in a written instrument signed by a duly authorized representative of Seller.  (e) The Agreement is formed and shall be construed, performed and enforced under the laws of the State of North Carolina.
 
13.  INDEMNIFICATION:   Seller shall indemnify and hold harmless Buyer against third-party claims for liability, loss, damage, cost and expense incurred or suffered by Buyer arising out of, or in connection with (a) the performance of this Contract, (b) Buyer’s use or operation of the Work or any part thereof; or (c) Seller’s performance of the Work or any part thereof, and which occurs or is caused by the negligence or willful misconduct of Seller, any of its employees or any person, firm or corporation directly or indirectly employed or engaged by the Seller in connection with the Work or any part thereof.  However, nothing herein shall be construed as making the Seller liable for any liability, loss, damage, cost or expense caused by the contributory negligence of the Buyer.
 
14.  INSURANCE:  Seller will purchase and maintain insurance of a form and with company with an A.M. Best Rating of at least A-VII and who are authorized to do business in the state(s) in which all aspects of the service contemplated under this Agreement are to be performed.  Unless otherwise stated the required insurance shall be maintained at all times during the course of Seller’s performance under this Agreement. 

• Workers’ Compensation – Statutory coverage in the state work is performed.  Employer’s Liability with minimum limits of $500,000 per accident/per employee. 
• Commercial General Liability (“CGL”, Occurrence Form) with combined single limit for Bodily Injury and Property Damage of not less than $1,000,000 each occurrence and $2,000,000 Annual Aggregate.
• Business Automobile Liability, in a combined single limit for Bodily Injury and Property Damage - $1,000,000 arising out of any vehicles including owned, leased, hired and non-owned.
• To the extent of Seller’s contractual indemnification obligation herein, the CGL and Business Auto insurance policies shall name Buyer as an Additional Insured. 
• To the extent of Seller’s contractual indemnification obligation herein, The CGL, Auto and Workers’ Compensation policies shall provide a waiver of subrogation in favor of Buyer.