MICROCOM
®
TEMPERATURE CONTROLLER
INSTRUCTION MANUAL
Pg.
www.incoe.com
WARRANTY
5
17
©INCOE
®
CORPORATION 4/2010
C.
Seller‘s warranties shall apply only if the Goods: (i) have been installed, maintained, and
used in conformity with instructions furnished by Seller from time to time, if any; (ii) have
been subjected to normal use for the purpose for which Goods were designed;
(iii) have not been subjected to misuse, negligence, or accident; and, (iv) have not been
altered or repaired by persons other than Seller in any respect which, in the judgment of
Seller, adversely affects the condition or operation of the Goods.
10 Patent Express Warranties
Seller shall defend and indemnify Buyer from any claim which asserts that the Goods
or their inherent methods of operation, intrinsically, infringe any United States patent,
except as to a claim based on Buyer‘s use of the Goods as a step in an overall process or as
an element in an overall combination. Seller‘s obligation shall not apply to a claim based
on Goods or portions thereof specified, designed, or manufactured by Buyer. Buyer shall
notify Seller promptly of any assertions of patent infringement and provide Seller with as-
sistance and information requested by Seller, or Seller shall have no further obligation to
defend or indemnify. Seller shall defend with its counsel or other counsel of its choice and
shall have the sole right, without consultation with Buyer, to take all action Seller deems
appropriate to prosecute or settle such claims. Seller‘s exclusive obligation to indemnify
as to Goods declared to infringe is limited to the acquisition of a license, the replacement
of Goods with non-infringing goods, the modification of the Goods so that they are non-
infringing, or the return of the purchase price and shipping costs in exchange for the Goods,
as Seller may elect. This section states the Seller‘s entire and exclusive obligation regard-
ing patent infringement.
11 Disclaimer and Limitation of Express Warranties
There are no express warranties other than those contained in the Agreement. Any
representations as to performance and other matters, except as contained in the
Agreement, were for illustrative purposes only and do not constitute a warranty. Whether or
not the Goods are to be used exclusively by Buyer, there shall be no third party beneficiaries
to the express warranties contained herein. Seller does not warrant any portion of the
Goods not manufactured by or not furnished by Seller (whether or not specified by Buyer),
but Seller shall assign to Buyer upon request all assignable warranties of Seller‘s suppliers related
to such Goods. All descriptions, shipping specifications and illustrations of the Goods or the
Seller and its quality and other systems and capabilities in catalogues, brochures and price
lists or otherwise provided by the Seller are intended for general guidance only and the Seller
is not responsible for any errors or omissions therein or for any loss or damage resulting
from reliance on them. Seller does not warrant that it or the Goods are in compliance with
any entity, organization or industry standards, guidelines, or procedures unless specifically
contained in the Agreement.
12 Remedy and Limitation of Seller‘s Liability
A.
Defective or non-conforming Goods discovered and returned during the warranty
period shall be repaired, or replaced by Seller without any additional charge and shipped
to Buyer, FOB Seller‘s plant, for reinstallation by Buyer at its cost, subject to the terms
hereof. The warranty obligation of Seller is limited to the repair or replacement at Seller‘s
plant of any part of the Goods which Buyer shall, within the warranty period, return to
Seller, with transportation charges prepaid by Buyer, and which Seller shall determine upon
examination to be defective or not in conformity with the express warranties contained
herein. In lieu of repair or replacement, if Seller elects, Seller may, upon return of such
Goods and making a determination of non conformity or defect, keep the Goods and refund
the purchase price. Buyer‘s remedies shall be limited
(even in the event of Seller‘s default of
its warranty obligations)
exclusively to those provided in this section.
UNDER NO CIRCUM-
STANCES SHALL SELLER BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAM-
AGES.
Buyer waives any causes of action or theories of liability including, but not limited
to, those arising under contract, tort, strict liability, product liability, statutes, or otherwise,
except as specifically provided by the UCC as modified and limited herein. The replacement
or repair of Goods by the Seller does not give rise to any new warranty except the warranty
period provided for herein shall be extended by the length of any period from the date the
defective or non conforming Goods are received by the Seller until the date repaired or
replacement Goods are delivered to Buyer.
B.
Buyer must contact Seller requesting warranty coverage plus a return authorization
number and other instructions for the return of Goods to Seller or other instructions. If
requested by Seller, Buyer shall issue a new purchase order or amendment to Seller for
replacement parts, subject to Seller issuing a credit memo if Buyer’s claim for warranty
coverage is approved. Buyer must comply with Seller’s return instructions (including re-
turn of the Goods) within 30 days or the claim shall be deemed conclusively to have been
abandoned. Buyer is responsible for properly tagging, identifying, and packing returned
Goods. Goods returned without compliance with the above procedures shall be returned
to the sender at sender’s cost.
13 Disclaimer of Implied Warranties
THE SELLER DISCLAIMS ALL IMPLIED WARRANTIES (OTHER THAN GOOD TITLE) IN-
CLUDING BUT NOT LIMITED TO THOSE OF FITNESS FOR A PARTICULAR PURPOSE,
MERCHANTABILITY, AND NON-INFRINGEMENT.
Seller does not warrant the Goods will
comply with the requirements of any safety or environmental code or regulation of any
federal, state, municipality or other jurisdiction beyond the specific express warranties in
this Agreement.
14 Parts, Service and Training Performed by Seller
All warranty and non-warranty parts, inspection, labor, service, software, and training, if
any, provided by the Seller or its agents and contractors (including those provided under
purchase orders subsequent to the Agreement) related to the Goods are subject to all limi-
tations and disclaimers of warranties and remedies provided in the Agreement. The Seller
may have access to the Goods during or after installation of the Goods. The Seller is not
under any duty to inspect the Goods for any defects or any improper use or modification
of the Goods nor to correct or advise the Buyer of any such condition, use or modification,
which is observed. Any notification which may be given is voluntary and subject to all
limitations and disclaimers in the Agreement.
15 User‘s Responsibility for Safety
It is Buyer‘s or other user‘s responsibility to provide all proper dies, devices, tools, training,
and other means that may be necessary to effectively protect all personnel from serious
bodily injury which otherwise may result from the method of particular installation, use,
operation, or service of the Goods. Manuals furnished by Seller; ANSI Safety Standards;
EPA, OSHA and similar state regulations; and other sources should be used by Buyer to
insure the safe use of the Goods. If Buyer fails to comply with the obligations set forth in
this section, Buyer shall indemnify and save Seller harmless from any liability or obligation
incurred by Seller to persons injured directly or indirectly in connection with the operation
of the Goods and all warranties of Seller shall become automatically void.
16 Indemnification
Buyer shall indemnify the Seller from any and all third party claims, damages, and expenses
(including reasonable attorney fees) under theories of tort, product liability, negligence (or-
dinary or gross), warranty, contract, statute, or otherwise arising out of the use, storage, sale,
processing or other disposition of the Goods, supplies or materials used in connection with
the Goods, or parts manufactured with the Goods, if the action or inaction of the Buyer or
its employees, customers or agents, or the Buyer‘s design specifications, were a material
or proximate cause of injuries or damages giving rise to claims against the Seller.
17 Consequential, Incidental, and Other Damages
BUYER AND THIRD PARTIES SHALL NOT BE ENTITLED TO ANY CONSEQUENTIAL, PU-
NITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES, AS DEFINED IN THE UCC OR OTH-
ERWISE.
This limitation shall be enforced regardless of whether Seller has defaulted
in its warranty or other obligations.
Any legal inability to limit or restrict the right of the
Buyer or a third party to such damages shall not affect the right of Seller to indemnification
hereunder, and under no circumstance shall Buyer recover more than the purchase price.
18 Security Interest, Power of Attorney
In addition to any security interest granted by the UCC, the Buyer hereby grants a se-
curity interest to the Seller in all Goods and documents related thereto and proceeds
and products therefrom to secure all obligations of the Buyer to the Seller, whether or not
arising under the Agreement. Buyer shall sign financing statements evidencing the security
interest as reasonably requested by Seller, or Seller may file a copy of the Agreement or
portion thereof as a financing statement. Buyer grants Seller an irrevocable power of attorney
to sign Buyer‘s name to a financing statement if necessary or convenient to perfect Seller‘s se-
curity interest. In case of a default by Buyer, Seller may peaceably enter the premises of
the Buyer and others to repossess or render inoperable all Goods in which it has a security
interest.
19 Proprietary Information
A.
Buyer acknowledges that any information disclosed to Seller has not and will not be
confidential or a trade secret unless clearly and conspicuously noted on the disclosure, or
in some other writing delivered to Seller at or prior to the time of the disclosure. Otherwise,
Seller shall be under no obligation to refrain from using in its business any information,
manufacturing processes or unpatented disclosures which may pass to it from Buyer in
the performance of the Agreement
B.
All proposals, plans and other information furnished by the Seller in bidding, negotiating
and performing the Agreement, are confidential and the property of Seller and shall not be
shown or disclosed to any other bidder, and shall not be shown or disclosed to any third
party or used by Buyer except as may be necessary for the selection or use of the Goods.
C.
Any invention or other information developed by Seller in the performance of the Agree-
ment shall remain the property of Seller.
20 United States Government Regulations
The Buyer shall not engage in any transaction with respect to the Goods which violates any
statute or regulation of the United States of America.
21 Certifications
Seller certifies that any Goods produced in the United States shall be produced in com-
pliance with all applicable requirements of Sections 6, 7 and 12 of the U.S. Fair Labor
Standards Act, and of the regulations and orders of the U.S. Department of Labor issued
under Section 14 thereof. No other certifications or waivers regarding payments to Seller‘s
suppliers or laborers are required.
22 Time for Bringing Action
Any proceeding by the Buyer for breach of the Agreement or any other right against Seller
arising from or in connection with the payment cannot be filed nor maintained unless: (i)
it is commenced within one (1) year after the cause for action has accrued; (ii) Buyer has
given timely written notice to Seller of its claim as provided herein; and (iii) Buyer deposits
the unpaid portion of the purchase price with the tribunal pending final adjudication. An
action shall accrue no later than shipment of the Goods.
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