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Proposal of Sale

The items described in this document are hereby offered for sale at prices to be established by ServoCon ALPHA, its subsidiaries and its authorized distributors. The products and services of sale and its acceptance by any customer (“Buyer”) shall be governed by all of the following Terms and Conditions. Buyer’s order for any item described in this document, when communicated to ServoCon ALPHA, its subsidiary or an authorized distributor (”Seller”) verbally or in writing, shall constitute acceptance of the offer. Prices quoted are subject to change without notice, unless otherwise noted. In any event, our quotations are subject to acceptance within thirty (30) days from date of issue. Any changes in quantities, partial release or destination may incur a price adjustment.

  1. Terms and Conditions of Sale: All descriptions, quotations, proposals, offers, acknowledgments, acceptances and sales of our products are subject to and shall be governed exclusively by the terms and conditions stated herein. Buyer’s acceptance of any offer to sell is limited to these terms and conditions. Any terms or conditions in addition to, or inconsistent with those stated herein, proposed by Buyer in any acceptance of any offer by Seller, are hereby objected to. No such additional, different or inconsistent terms and conditions shall become part of the contract between Buyer and Seller unless expressly accepted in writing by Seller. Seller’s acceptance of any offer to purchase by Buyer is expressly conditional upon Buyer’s assent to all the terms and conditions stated herein, including any terms in addition to, or inconsistent with those contained in Buyer’s offer. Acceptance of Seller’s products shall in all events constitute such assent.

  2. Payment-Labor Charges: Payment shall be made by Buyer net 30 days from the date of delivery of the items purchased hereunder. Amounts not timely paid shall bear interest at the rate of 1.1/2% for each month or a portion thereof that Buyer Is late in making payment. Any claims by Buyer for omissions or shortages in a shipment shall be waived unless Seller receives notice thereof within 30 days after Buyer’s receipt of the shipment. Seller shall not be held liable for any labor charges other than those agreed upon in advance between the manufacturer and Buyer of the products covered in a quotation.

  3. Delivery: Unless otherwise provided on the face hereof, delivery shall be made FOB Seller’s plant. Regardless of the method of delivery, risk of loss shall pass to Buyer upon Seller’s delivery to a carrier. Any delivery dates shown are approximate only and Seller shall have no liability for any delays in delivery.

  4. Warranty: Seller warrants that each item of its manufacture is free from defects in materials and workmanship at the date of shipment. Seller is a reputable manufacturer and purchases parts from only reputable suppliers and agrees to assign to Buyer whatever rights we have under warranty of such suppliers.

    Unless otherwise specified, Seller's obligation under this warranty is limited to replacing or repairing any item which within twelve (12) months from date of shipment is proven by Seller's inspection to have been defective at the time of shipment. As a condition of this warranty, Buyer shall notify Seller in writing of any claimed defect immediately upon discovery and shall return the item to Seller for inspection. Unless specifically approved in writing, Seller shall not provide uncompensated field service repairs or alterations unless Seller has previously agreed in writing to such allowance. Seller shall not be responsible for any work done or repairs made by others and disassembly by anyone other than authorized Seller personnel may void the terms of this warranty. Unless Seller is specifically requested to provide installation assistance under the terms of a contract, proper installation and checkout of a system shall be the sole responsibility of the Buyer.

    Seller shall not be liable for improper use, installation, operation or maintenance of items repaired by those other than Seller, nor for any damage that results from any improper use, installation, operation or maintenance. Seller shall not be responsible for any damages for loss of production or profits, damage to product or economy of operation, or any consequential or incidental damages occasioned by defects in or failure of any goods supplied by Seller, or by defects in or failure of any product in which a component manufactured by Seller is incorporated. Seller shall not be responsible for the performance of any product which incorporates component parts repaired by Seller, unless such performance is expressly designated as Seller's responsibility under the terms of the written agreement between Seller and the Buyer. The warranties contained herein are exclusive and are given in lieu of all other warranties, express, implied or statutory, including the implied warranty of merchantability or fitness for a particular purpose. Extended warranties are available on request.

  5. Limitation of Remedy: seller’s liability arising from or in any way connected with the items sold or this contract shall be limited exclusively to repair or replacement of the items sold or refund of the purchase price paid by buyer, at sellers sole option. In no event shall seller be liable for any incidental, consequential or special damages of any kind or nature whatsoever, included but not limited to lost profits arising from or in any way connected with this agreement or items sold here, whether alleged to arise from breach of contract, express or implied warranty, or in tort, including without limitation, negligence, failure to warn or strict liability.

  6. Changes, Terminations, Reschedules and Cancellations: Buyer may request the designs or specifications for the items sold hereunder as well as the quantities and delivery dates thereof, or may request to cancel all or part of this order. However, no such requested modification or cancellation shall become part of the contract between Buyer and Seller unless accepted by Seller in a written amendment to the Agreement. Acceptance of any such requested modification or cancellation shall be at Seller’s discretion, and shall be upon such terms and conditions as Seller may require. Acceptance of any order is subject to credit approval and acceptance of order by Seller and his suppliers. If Buyer fails to comply with these Products and Services Of Sale or if Buyer's credit becomes unsatisfactory to Seller, Seller reserves the right to terminate upon notice to Buyer and without liability to Seller. Cancellations by Buyer shall be by mutual agreement in writing, based on any adjustments necessary to cover labor expended, material procured, and reasonable overhead expenses applicable thereto. Seller is not to be accountable for delays in delivery if caused by any legislative, administrative or executive law, order or requisition of the Federal Government or any State or Municipal Government or any subdivision, department, agency, officer or official thereof, or if caused by, but not limited to, strike, fire, floods, accidents, delays of carrier, inability to obtain suitable and sufficient labor, and necessary supply of raw materials or other unavoidable contingencies beyond the Seller's control. Factory shipment or delivery dates are the best estimates of our suppliers. In no case shall Seller be liable for any consequential or special damages arising from any delay in delivery.

  7. Special Tooling: A tooling charge may be imposed for any special tooling, including without limitation, dies, fixtures, molds and patterns, acquired to manufacture items sold pursuant to this contract. Such special tooling shall be and remain Seller’s property notwithstanding payment of any charges therefore by Buyer.

  8. Buyer’s Property, Requirements, and Remedies: Any designs, tools, patterns, materials, drawings, confidential information or equipment furnished by Buyer or any other items which become Buyer’s property, may be considered obsolete and may be destroyed by Seller after two (2) consecutive years have elapsed without Buyer placing an order for the items which are manufactured using such property. Seller shall not be responsible for any loss or damage to such property while it is in Seller’s possession or control. Material and equipment included in a quotation is based on Seller's interpretation of Buyer's requirements and are subject to verification by Buyer or his representative. Any quotation does not include accessory equipment unless such items are listed. Buyer's remedies for any defects in the material covered by a quotation is subject to any limitations contained in manufacturer's terms and conditions to Seller. A copy of such terms and conditions will be furnished upon written request. In any event, Seller shall not be liable for claims (based upon breach of express or implied warranties or negligence) for consequential or special damages or for any expenses by reason of the use, sale or fabrication of the materials covered by a quotation which are found to be defective. In addition, claims for shortages, other than loses in transit must be made in writing not more than five (5) days after receipt of shipment. Finally no material may be returned to Seller without the written consent of the Seller.

  9. Taxes: Unless otherwise indicated on the face hereof, all prices and charges are exclusive of excise, sales, use, property, occupational or like taxes which may be imposed by any taxing authority upon the manufacture, sale or delivery of the items sold hereunder. If any such taxes must be paid by Seller or if Seller Is liable for the collection of such tax, the amount thereof shall be in addition to the amounts for the items sold. Buyer agrees to pay all such taxes or to reimburse Seller therefore upon receipt of its invoice. If Buyer claims exemption from any sales, use or other tax imposed by any taxing authority, Buyer shall save Seller harmless from and against any such tax, together with any interest or penalties thereon which may be assessed if the items are held to be taxable. Exemptions shall be communicated in writing.

  10. Indemnity for Infringement of Intellectual Property Rights: Seller shall have no liability for infringement of any patents, trademarks, copyrights, trade dress, trade secrets or similar rights except as provided in this Part 10. Seller will defend and indemnify Buyers against allegations of infringement of U.S. patents, U.S. trademarks, copyrights, trade dress and trade secrets (hereinafter Intellectual Property Rights). Seller will defend at its expense and will pay the cost of any settlement or damages awarded in any action brought against Buyer based on an allegation that an item sold pursuant to this contract infringes the Intellectual Property Rights of a third party. Seller’s obligation to defend and indemnify Buyer is contingent on Buyer notifying Seller within ten (10) days after Buyer becomes aware of such allegations of infringement, and Seller having sole control over the defense of any allegations or actions including all negotiations for settlement or compromise. If an item sold hereunder is subject to a claim that it infringes the Intellectual Property Rights of a third party, Seller may, at its sole expense and option, procure for Buyer the right to continue using said item, replace or modify said item so as to make it non infringing or offer to accept return of said item and return the purchase price less a reasonable allowance for depreciation. Notwithstanding the foregoing, Sellers shall have no liability for claims of infringement based on information provided by Buyer, or directed to items delivered hereunder for which the designs are specified in whole or part by Buyer, or infringements resulting from the modification, combination or use in a system of any item sold hereunder. The foregoing provisions of this Part 10 shall constitute Seller’s sole and exclusive liability and Buyer’s sole and exclusive remedy for infringement of Intellectual Property Rights. If a claim is based on information provided by Buyer or if the design for an item delivered hereunder is specified in whole or in part by Buyer, Buyer shall defend and indemnify Seller for all costs, expenses or judgments resulting from any claim that such item infringes any patent, trademark, copyright, trade dress, trade secrets or any similar right.

  11. Force Majeure: Seller does not assume the risk of and shall not be liable for delay or failure to perform any of Seller’s obligations by reason of circumstances beyond the reasonable control of Seller (hereinafter ‘Events of Force Majeure’). Events of Force Majeure shall include without limitation, accidents, acts of God, strikes or labor disputes, acts, laws, rules or regulations of any government or government agency, fires, floods, delays or failures in delivery of carriers or suppliers, shortages of materials and any other cause beyond Seller’s control.

  12. Waiver:The failure of the Seller or Buyer to insist upon the performance of any of the terms and conditions of a contract or to exercise any right hereunder shall not be deemed to be a waiver of such term, condition, or right under this contract.

  13. Entire Agreement, Modifications and Governing Law: The terms and conditions set forth herein, together with any amendments, modifications and any different terms or conditions expressly accepted by Seller in writing, shall constitute the entire Agreement concerning the items sold, and there are no oral or other representations or agreements which pertain thereto. This Agreement shall be governed in all respects by the law of the State of Virginia. No actions arising out of the sale of the items sold hereunder or this Agreement may be brought by either party more than one (1) year after the cause of action accrues. No terms and conditions other than those stated herein, and no agreement or understanding, in any way purporting to modify these terms and conditions, whether contained in the buyer's purchase or shipping release forms, or elsewhere, shall be binding on Seller. If the conditions of a quotation which prevail over any inconsistent terms of Buyer's purchase order are not acceptable to Buyer, he must so notify Seller within ten (10) days.

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This document and other information from ServoCon ALPHA, its subsidiaries and authorized distributors provide product and/or system options for further investigation by users having technical expertise. It is important that you analyze all aspects of your application and review the information concerning the product or system. Due to the variety of operating conditions and applications for these products or systems, the user, through its own analysis and testing, is solely responsible for making the final selection of the products and systems and assuring that all performance, safety and warning requirements of the application are met. The products described herein, including without limitation, product features, specifications, designs, availability and pricing, are subject to change by ServoCon ALPHA and its subsidiaries at any time without notice.

The items described in this document are hereby offered for sale by ServoCon ALPHA, its subsidiaries or its authorized distributors. This offer and its acceptance are governed by the provisions stated in the “Proposal of Sale.”

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