
https://www.emerson.com/en-us/automation/topworx
Warranty
These terms and conditions, the attendant quotation or acknowledgment, and all documents
incorporated by reference therein, binds TopWorx, Inc. hereinafter the Seller, and the buyer,
hereinafter Buyer, and constitutes the entire agreement (Agreement) between Buyer and Seller
for the provision of services (Services) and/or the sale of goods (Goods) including (except as
provided in Section 10) rmware incorporated therein.
1. PRICES: Unless otherwise specied by Seller, Seller's price for the Goods and/or Services
shall remain in eect for thirty (30) days after the date of Seller's quotation or acceptance of the
order for the Goods/Services, whichever is delivered rst, provided an unconditional, complete
authorization for the immediate manufacture and shipment of the Goods and/or provision of
Services pursuant to Seller's standard order processing procedures is received and accepted
by Seller within such time period. If such authorization is not received by Seller within such thirty
(30) day period, Seller shall have the right to change the price for the Goods/Services to Seller's
price in eect for the Goods/Services at the time the order is released to nal manufacture.
Prices for Goods do not cover storing, installing, starting up or maintaining Goods unless
expressly stated in Seller’s quotation. Notwithstanding the foregoing, the price for
Goods/Services sold by Seller, but manufactured by others, shall be Seller's price in eect at the
time of ship-ment to Buyer.
2. DELIVERY, ORDER ACCEPTANCE AND DOCUMENTATION: All shipping dates are
approximate and are based upon Seller's prompt receipt of all necessary information from Buyer
to properly process the order. Notwithstanding any provisions to the contrary in this or other
documents related to this transaction, and regardless of how price was quoted, whether FOB,
FAS, CIF or otherwise, legal title to the Goods and risk of loss thereto shall transfer to Buyer
as follows: for sales in which the end destination of the Goods is within the United States, upon
delivery to the freight carrier at the shipping point; for sales in which the end destination of the
Goods is outside of the United States, immediately after the Goods have passed beyond the
territorial limits of the United States. Seller shall provide Buyer with that data/documentation
which is specically identied in the quotation. If additional copies of data/documentation or
non-standard data/documentation are to be provided by Seller, they shall be provided to Buyer
at Seller's price then in eect. Data/documentation marked as condential or proprietary may not
be reproduced or used for any purpose other than the purpose for which it was provided and may
not be disclosed to third parties without the prior written permission of Seller.
3. EXCUSE OF PERFORMANCE: Seller shall not be liable for delays in performance or for non-
performance due to failure or interruption of computer or telecommunication systems, acts of
God, war, riot, re, terrorism, labor trouble, unavailability of materials or components, explosion,
accident, compliance with governmental requests, laws, regulations, orders or actions, or other
unforeseen circumstances or causes beyond Seller's reasonable control. In the event of such
delay, the time for performance or delivery shall be extended by a period of time reasonably
necessary to overcome the eect of the delay.
4. TERMINATION AND SUSPENSION BY BUYER: Buyer may terminate or suspend its order
for any or all of the Goods/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.
5. LIMITED WARRANTY: Subject to the limitations contained in Section 6 herein, Seller warrants
that the licensed rmware embodied in the Goods 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. The foregoing warranties
will apply until the expiration of the applicable warranty period. All other Goods are warranted for
twelve (12) months from the date of shipment by Seller. Consumables and Services are
warranted for a period of 90 days from the date of shipment or completion of the Services.
Products purchased by Seller from a third party for resale to Buyer (“Resale Products”) shall
carry only the warranty extended by the original manufacturer. Buyer agrees that Seller has
no liability for Resale Products beyond making a reasonable commercial eort to arrange for
procurement and shipping of the Resale Products. If Buyer discovers any warranty defects and
noties Seller thereof in writing during the applicable warranty period, Seller shall, at its option,
correct any errors that are found by Seller in the rmware or Services or repair or replace F.O.B.
point of manufacture that portion of the Goods or rmware found by Seller to be defective, or
refund the purchase price of the defective portion of the Goods/Services. All replacements or
repairs necessitated by inadequate maintenance, normal wear and usage, unsuitable power
sources or environmental conditions, accident, misuse, improper installation, modi-cation,
repair, use of unauthorized replacement parts, storage or handling, or any other cause not the
fault of Seller are not covered by this limited warranty, and shall be at Buyer’s expense. 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 Seller. All costs of dismantling, reinstallation and
freight and the time and expenses of Seller’s personnel and representatives for site travel and
diagnosis under this warranty clause shall be borne by Buyer unless accepted in writing by
Seller. Goods repaired and parts replaced by Seller 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 Seller. THE WARRANTIES AND REMEDIES SET FORTH ABOVE ARE
EXCLUSIVE. 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.
6. LIMITATION OF REMEDY AND LIABILITY: SELLER SHALL NOT BE LIABLE FOR
DAMAGES CAUSED BY DELAY IN PERFORMANCE. 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 TO BUYER
OF THE SPECIFIC GOODS MANUFACTURED OR 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,
REVENUE OR USE AND COSTS INCURRED INCLUDING WITHOUT LIMITATION FOR
CAPITAL, FUEL AND POWER, AND CLAIMS OF BUYER’S CUSTOMERS.
7. PATENTS: Subject to the limitations contained in Section 6, Seller shall defend any suits
brought against Buyer based on a claim that use of the Goods manufactured by Seller
TOPWORX TERMS AND CONDITIONS OF SALE
constitutes an infringement of a valid patent of the United States, and shall pay any damages
awarded therein against Buyer, provided that Buyer: promptly noties Seller in writing of the ling
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 manufactured by Seller
are held to be infringing in such suit and their use is enjoined, Seller shall, at its sole option and
expense, provide a commercially reasonable alternative, including, but not limited to, procuring
for Buyer the right to continue using the Goods, replacing them with a non-infringing product or
modifying 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 manufactured by Seller or in a manner for which
the Goods were not designed by the Seller or if the Goods were not designed by the Seller or
if the Goods were designed by the Buyer or were modied by or for the Buyer in a manner to
cause them to become infringing.
8. TAXES: Any tax or governmental charge payable by the Seller because of the manufacture,
sale or delivery of the Goods, or provision of Services, may at Seller's option be added to the
price herein specied. The foregoing shall not apply to taxes based upon Seller’s net income.
9. TERMS OF PAYMENT: Subject to the approval of Seller's Credit Department, terms are F.O.B.
shipping point, net 30 days from date of Seller's invoice in U.S. currency, except for applicable
milestone payments covered below or export shipments for which Seller may require other
arrangements. Freight charges may include shipping and handling charges, and Buyer shall pay
all such charges. If any payment owed to Seller hereunder is not paid when due, it shall bear
interest at a rate 1-1/2% per month interest from the date on which it is due until it is received
and future shipments may be placed on hold. Seller shall have the right, among other remedies,
either to terminate the Agreement or to suspend further deliveries under this and/or other
agreements with Buyer in the event Buyer fails to make any payment hereunder when due.
Buyer shall be liable for all expenses attendant to collection of past due amounts, including
attorneys' fees. Unless otherwise provided in Seller's written quotation, periodic milestone
payments shall be made by Buyer when the purchase price of this Agreement exceeds $100,000.
In such cases, invoices shall be issued by Seller and paid by Buyer based on the following
milestones: Milestone 1: 30% of price upon acceptance of order by Seller. Milestone 2: 30% of
price upon release by Seller of approved bills of material to manufacturing for assembly.
Milestone 3: 40% of price upon shipment of the Goods by Seller. Seller reserves the right to
designate additional Milestones where the Agreement provides for Services in excess of $50,000.
10. SOFTWARE AND FIRMWARE: 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
rmware and software, including all copyrights relating to such rmware and software and all
copies of such rmware and software. Except as otherwise provided herein, Buyer is hereby
granted a nonexclusive, royalty free license to use rmware and software, and copies of rmware
and software, incorporated into the Goods only in conjunction with such Goods and only at the
Buyer’s plant site where the Goods are rst used. Buyer may negotiate with Seller separate
licenses to use such copies and rmware and software at other plant sites. Buyer’s use of certain
rmware (as specied by Seller) and all other software shall be governed exclusively by Seller’s
and/or third party owner’s applicable license terms.
11. BUYER SUPPLIED DATA: To the extent that Seller has relied upon any specications,
information, representation of operating conditions or other data or information supplied by Buyer
to Seller (“Data”) in the selection or design of the Goods and/or provision of the Services and the
preparation of Seller's quotation, and in the event that actual operating conditions or other
conditions dier from those represented by Buyer and relied upon by Seller, any warranties or
other provisions contained herein which are aected by such conditions shall be null and void.
12. 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 items may be supplied will apply to its receipt and use of Goods and Services. In no event
shall Buyer use, transfer, release, import, export, or re-export Goods in violation of such
applicable laws, regulations, orders, or requirements.
13. 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 specied 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 years after the cause of action has accrued; (d) any modication 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 Missouri (however, Buyer and Seller agree that the proper venue for all
actions arising under the Agreement shall be only in the State where the Goods involved in such
actions were manufactured; (f) The 1980 United Nations Convention on Contracts for the
International Sale of Goods does not apply to this Agreement; (g) If any provision of the
Agreement is invalid under any statute or rule of law, such provision, to that extent only, shall be
deemed to be omitted without aecting the validity of the remainder of the Agreement; (h) Seller
specically objects to the application of any Federal Acquisition Regulation (“FAR”) or other
governmental procurement provision or clause to the Agreement; (i) UNLESS
OTHERWISE SPECIFICALLY PROVIDED IN SELLER’S QUOTATION, GOODS AND SERVICES
HEREUNDER ARE NOT INTENDED FOR USE IN ANY NUCLEAR OR NUCLEAR RELATED
APPLICATIONS. Buyer (i) accepts Goods and Services in accordance with the restriction set
forth in the immediately preceding sentence, (ii) agrees to communicate such restriction in
writing to any and all subsequent purchasers or users and (iii) agrees to defend, indemnify and
hold harmless Seller from any and all claims, losses, liabilities, suits, judgments and damages,
including incidental and consequential damages, arising from use of Goods and Services in any
nuclear or nuclear related applications, 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;
(j) The rights, remedies and protections aorded to Seller under this Agreement, including but
not limited to indemnication of Seller, limitation of remedy and liability and limited warranty shall
extend to Seller and to its aliates, subsidiaries, or related companies performing or supplying
work, services, or products under this Agreement or any agreement into which it is incorporated
by reference; and (k) Seller does not agree to: (i) indemnify Buyer; or (ii) name Buyer as an
additional insured. 17