MICROCOM
®
TEMPERATURE CONTROLLER
INSTRUCTION MANUAL
Pg.
www.incoe.com
5
WARRANTY
16
©INCOE
®
CORPORATION 4/2010
5.1 GENERAL TERMS & CONDITIONS OF SALE
1 Applicable Law and Jurisdiction
These general terms and conditions apply to all proposals and quotations submitted by Seller,
to all purchase orders received by Seller, and to all goods and services sold by Seller, except as
other-wise specifically provided in a document signed by Seller. This sale or any sale resulting
herefrom consists only of these terms and conditions and those in other documents which
are referred to herein or are attached hereto or in a document subsequently signed by Seller
and referencing this transaction (all of which constitute the “Agreement“). THE AGREEMENT
SHALL BE GOVERNED, CONSTRUED AND ENFORCED UNDER THE LAW OF THE STATE
OF MICHIGAN INCLUDING THE UNIFORM COMMERCIAL CODE IN FORCE ON THE INITIAL
DATE OF THE AGREEMENT (“UCC“), EXCEPT AS PROVIDED HEREIN. The U.N. Convention
on the International Sales of Goods shall not apply. Any services to be provided hereunder,
whether or not they are otherwise ancillary to and part of a sale of goods (as separate units), shall
be considered ancillary to a sale of goods and the UCC shall apply to all goods and services to
be provided hereunder (“Goods“).
THE COURTS OF MICHIGAN SHALL HAVE EXCLUSIVE
JURISDICTION OVER THE PARTIES AND THE CLAIMS ARISING UNDER OR RELATED
TO THE AGREEMENT.
The parties stipulate to the convenience of Michigan courts in general,
and Oakland Circuit Court in particular, as to all litigation. Any declaration of unenforceability
of a provision shall be as narrow as possible and shall not affect the enforceability of the other
provisions.
2 Formation, Integration and Modification
A.
The Agreement supersedes all previous quotations and agreements pertaining to the Goods.
Delivery to Seller of the Buyer‘s acceptance of a Seller’s quotation (according to its terms),
Seller‘s actions in reliance on Buyer‘s oral acceptance of a written or oral quotation, or Buyer‘s
receipt of the Goods, will constitute a binding contract under the terms of the Agreement. The
Agreement is subject to Seller‘s revocation or cancellation without liability until it is approved by
Seller at its home office. Notice of such approval may be furnished to the Buyer in the form of
an acknowledgment, shipment, or other form of express approval.
B.
An order submitted by Buyer orally or in a purchase order or other writing (whether or not
it contains terms or conditions modifying, adding to, repugnant to, or inconsistent with these
Terms and Conditions), may be accepted, approved or filled by Seller, but any resulting contract
and the liabilities or obligations of Seller shall be determined solely by the Agreement, and
(unless the Seller otherwise advises Buyer in writing) notice is hereby given that Seller objects
to any such terms or conditions in Buyer‘s purchase order or other writing. Seller shall not be
deemed to have in any way enlarged or modified its liabilities or obligations under the Agree-
ment by filling such order or by failing to further object to Buyer‘s terms or conditions.
C.
The Agreement is a final, complete and exclusive statement of the Agreement of the par-
ties. THE SELLER IS WILLING TO NEGOTIATE WRITTEN CHANGES TO THESE TERMS AND
CONDITIONS, BUT RESERVES THE RIGHT TO MAKE AN ADJUSTMENT IN THE PRICE OF
THE GOODS. No modifications, limitations, waivers or discharge of the Agreement or any of its
terms shall bind Seller unless in writing and signed by Seller‘s authorized employee at its home
office. Notwithstanding anything to the contrary in this Agreement, no modifications, limitation,
waiver or discharge of any provision of the Agreement shall affect the Buyer‘s liabilities to Seller
accrued prior thereto. Seller may correct unilaterally any mathematical and typographical errors
in the Agreement. Typed provisions of the Agreement take precedence over printed provi-
sions. A course of performance, course of dealing, or customs in the trade shall not constitute
a modification or waiver by Seller of any right by Seller.
D.
The Agreement is only for the benefit of the parties, except all disclaimers and limitations
applicable to Seller shall be for the benefit of Seller‘s agents, employees, contractors, and sup-
pliers. If any provisions are determined to apply to third parties, all other provisions including
limitations, waivers, and disclaimers shall also apply.
3 Prices, Payment and Risk of Loss
A.
Prices contained in Seller‘s published price lists, if any, are subject to change without notice.
Prices contained in individual written quotations or proposals are firm only for a period of thirty
(30) days from the date of the quotation after which Buyer should inquire of Seller as to their
validity and request a written confirmation or revision. Prices do not include taxes and Buyer
shall pay all applicable sales or other taxes levied with respect to Goods (and replacements) and
the Agreement, unless exempt therefrom. All prices are in United States dollars. Buyer shall
pay all government fees levied on the installation and inspection of the Goods. Buyer shall pay
upon receipt all invoices rendered by Seller for any such items Seller may pay and for the Goods.
B.
This Agreement is for a shipment contract and the Goods shall be delivered F.O.B. Seller‘s
dock. Whether or not Seller prepays shipping charges, risk of loss passes to Buyer upon tender
of the Goods to a carrier. Seller‘s breach of the Agreement shall not affect the passing of the
risk of loss to Buyer notwithstanding any provision of law to the contrary.
C.
Seller may unilaterally increase prices to cover increased costs (plus reasonable overhead
and profit) of design, materials, and manufacturing required by changes requested by Buyer
after the date of any quotation.
D.
All amounts not paid to Seller when due shall incur a carrying charge of 1.5% per month to
the extent allowed by law and otherwise at the highest written contract rate allowed by law.
E.
All amounts due on installation or other event which requires the action or cooperation of
Buyer which Buyer fails to supply timely shall become due upon such failure.
4 Delivery
Shipping dates are estimates based on Seller‘s present engineering and manufacturing
capacity and scheduling, and may be revised by Seller upon receipt or scheduling of Buyer‘s
order. All shipping dates are approximate and shall be computed from the date of entry of
the order on Seller‘s books. All shipping dates are further subject to Seller‘s prompt receipt
from Buyer of a written purchase order or acceptance, letter of credit, down payment,
and other conditions as specified in the Agreement, and of all drawings, information and
approvals necessary to provide Goods and to grant any credit proposed in the Agreement.
5 Delay of Shipment or Performance Excused for Various Reasons
A.
If shipment of any item or other performance by Seller is delayed at the request of or due
to the fault of Buyer, Seller may at its option hold the item at the place of manufacture at
the risk and expense of the Buyer from the time it is ready for shipment. In the event of any
such delay in shipment, full and final payment for an item shall be due and payable thirty (30)
days after the Buyer is notified that the item is ready for shipment. If the Seller is unwilling to
accommodate the Buyer by holding such item, the Buyer shall accept shipment immediately.
B.
Dates for Seller‘s performance are estimates only. In addition, the Seller shall not be in default
because of its delay or failure to deliver or perform resulting, in whole or in part, from: (i) any
foreign or domestic embargoes, seizures, acts of God, insurrections, war, or the adoption or
enactment of any law, ordinance, regulation, ruling or order, or (ii) the lack of usual means
or transportation, fires, floods, explosions, strikes or any other accidents, contingencies, or
events, at the Seller‘s or its supplier‘s plant or elsewhere (whether or not beyond the Seller‘s
control) which directly or indirectly interfere with, or render substantially more burdensome,
Seller‘s production, delivery, or performance.
6 Inspection, Testing and Rejection
A.
If the Agreement expressly provides for Buyer‘s inspection and/or acceptance of the
Goods, Seller‘s standard test procedures conducted by Seller‘s representative shall be the
criteria for inspection and/or acceptance, unless other specific procedures have been speci-
fied in the Agreement.
B.
All drawings, specifications, technical documentation, samples, prototypes and Goods
shall be deemed approved and/or accepted by Buyer if Buyer does not provide a written ob-
jection and/or rejection within seven (7) days of receipt or other reasonable time established
by Seller. Any objection and/or rejection by the Buyer must be in writing and state with speci-
ficity all defects and non-conformities upon which Buyer will rely to support its rejection.
ALL DEFECTS AND NON-CONFORMITIES WHICH ARE NOT SO SPECIFIED ARE WAIVED.
7 Installation and Start Up
All Goods shall be assembled and installed by and at the expense of the Buyer. Seller may
furnish, upon request and without additional cost or liability to Seller, written instructions for
installing, maintaining, and operating the Goods. At Buyer‘s request and cost, Seller may
furnish personnel and equipment to assist in the installation and/or start up of the Goods.
Buyer shall pay Seller its prevailing per diem rates for such personnel and equipment plus
reasonable transportation, food, lodging and other travel expenses. Buyer shall have com-
petent supervisory, maintenance and operating personnel present when Seller‘s personnel are
performing such services.
8 Software License
The Seller grants the Buyer, for its internal use only, a non-exclusive perpetual license (“Li-
cense“) of all user manuals, software programs, firmware, and storage media (“Software“)
provided by the Seller in conjunction with the Goods with which the Software is provided,
for the sole purpose of the operation of the Goods. This License terminates automatically
if Buyer is in default of its obligations. The Software may be provided in machine readable
object code only. Licensee may make and keep one copy of the object code, if provided
by Seller, for backup purposes. When making a copy, the Buyer shall reproduce all Seller‘s
copyright or patent notices in all forms originally included in the Software. Buyer shall not
make any effort to obtain or reproduce the Software‘s source code. Title and all ownership
rights to the Software remain with Seller, its licensors, or its suppliers. The Software is
the proprietary information and trade secret of the Seller or its licensors, whether or not
any portion thereof is or may be validly copyrighted or patented. The License may not be
assigned nor transferred by Buyer except as a part of a transfer of the Goods with-out the
written consent of Seller which may be withheld. The Software is provided for the Buyer‘s
internal use only and the Buyer shall maintain the confidential nature of the Software and
related materials and protect them against disclosure or improper use. Buyer shall pay all
taxes based on the Software or use of the Software, however designated or levied, except
those based on Seller‘s net income. All disclaimers and limitations applicable to the Goods
apply to the License.
9 General Express Warranties
A.
Seller warrants to Buyer only, that Goods (or portions thereof manufactured by Seller) shall
be free from manufacturing defects in materials and workmanship which are discovered within
the warranty period, subject to the disclaimers and limitations of the Agreement. This is not a
warranty of performance, but a limited warranty as to the condition of the Goods at the beginning
of the warranty period. The warranty period, measured from date of shipment by Seller, shall
be: one year for hot runner systems and components (other than heaters and thermocouples);
three years for defects causing leakage for DFQ bushings; three years for cast (pro-rated) and
DF heaters; one year pro-rated for screen pacs, fast cycle bushings, and KX heaters; six months
for thermocouples; two years for temperature and valve gate controllers (reduced to six months
for electronic components); one year for quick mold change products; and 90 days for all other
Goods. The percentage of the replacement cost shall be reduced by three percent for each full
month from 90 days after the date of shipment for the cast heater warranty and by 50% and
75% at the end of six and nine months, respectively, after shipment for the screen pac, fast
cycle bushings, and KX heater warranty. Because the Goods may be subject to a wide variety
of use, installation, maintenance and cleaning, the warranty is only against such defects and not
against any other failures such as, but not limited to, those due to wear and tear, and normal
maintenance and perishable items are excluded from this warranty against defects.
B.
Seller warrants to Buyer that the Goods will be as described in the Agreement in all
material respects, subject to the limitations stated herein and Seller‘s published and internal
standards; however, Seller retains the right to change the dimensions, composition, design,
performance, color and appearance of the Goods without liability if, in its judgment, the
change is non material. Seller may, in its discretion, also rely on any generally accepted
industry standards.
