Terms and Conditions of Sale

PLEASE NOTE: Placing an order with Auto Technology Company (“Seller”) constitutes acknowledgement that you (“Buyer”) have read, understood, and agree to the following Terms and Conditions of Sale.

1. Scope

The terms and conditions of sale contained herein (“Terms”) apply to all quotations and offers made by Seller and all purchase orders accepted by Seller. These Terms apply to all sales made by Seller except to the extent that they conflict with a separate written sales agreement entered into between Seller and Buyer that (i) makes specific reference to each provision of these Terms that is being superseded, and (ii) is signed by a duly authorized officer of Seller (a “Sales Agreement”). A Buyer purchase order is not a Sales Agreement.

These Terms apply in lieu of any course of dealing between Seller and Buyer or usage of trade. These Terms may conflict with terms contained in Buyer purchase orders or other procurement documents. In such case, these Terms shall govern, and Seller’s acceptance of Buyer’s order is conditioned upon Buyer’s acceptance of these Terms, whether by written acknowledgement, by implication, or by acceptance and payment of products ordered.

Seller’s failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of these Terms in any respect, and any such provisions are hereby objected to. Buyer will be deemed to have assented to these Terms if any part of the products and/or services are shipped or provided, or an invoice is presented in connection with the products and/or services.

2. Price, Taxes and Quotations

Any order that can be canceled and rescheduled pursuant to Section 6(a) is subject to potential price changes immediately. All prices are exclusive of any present or future sales, revenue, excise tax, value added tax, turnover tax, import duties (including brokerage fees), or other taxes applicable to the manufacture or sale of any product. Such taxes, when applicable, shall be paid by Buyer unless Buyer provides a proper tax exemption certificate.

If Buyer claims exemption from any sales, use, or other tax imposed by any taxing authority, Buyer shall indemnify and hold Seller harmless from and against any such tax, together with any interest or penalties, which may be assessed if the items or the transaction are held to be taxable.

Unless otherwise agreed in a Sales Agreement, prices quoted by Seller are those current at the date of quotation and are subject to change by Seller. Any quote issued by Seller is valid for only thirty (30) days from issuance. Seller may modify a quote prior to the expiration of such thirty-day period to reflect material changes in Seller’s raw materials costs.

All accepted orders are subject to price increases due to increased labor, material, and vendor costs if Buyer delays the commencement of construction or delivery for more than ninety (90) days.

3. Delivery

Unless otherwise set forth in a Sales Agreement, delivery shall be FOB Seller’s plant. Any delivery dates shown are approximate only, and Seller shall have no liability for delays in delivery. Seller may deliver products in one or more consignments and invoice each consignment separately. Seller reserves the right to ship product in advance of the agreed shipping date.

If Seller gives Buyer notice that product is ready to ship and Buyer delays shipment, Seller may charge storage fees at the prevailing rate for cold storage in Seller’s industry. Unless otherwise provided in a Sales Agreement, time of delivery is not of the essence.

4. Payment

Unless otherwise specified in a Sales Agreement, payment terms shall be as set forth in Seller’s quote; provided, however, Seller reserves the right to invoice upon giving notice that product is ready to ship.

Buyer agrees to pay interest on any unpaid balance at a rate of five (5) percentage points above the annual Federal Funds rate as specified in The Wall Street Journal on the day the balance becomes due. Unless otherwise set forth in a Sales Agreement, all payments shall be made in United States dollars.

For contracts outside the United States, Seller may require payment to be secured by an irrevocable letter of credit or bank guarantee acceptable to Seller. Where payment is made by letter of credit, all costs of collection shall be for Buyer’s account.

If Seller is required to bring legal action to collect delinquent accounts, Buyer agrees to pay Seller’s attorneys’ fees and costs. No assignment or delegation of Buyer’s indebtedness to Seller shall be binding on Seller, and Buyer shall remain primarily and unconditionally liable until paid in full.

Credit Card & Electronic Payment Authorization

Buyer may elect to pay by credit card or other electronic methods through Seller’s authorized payment processors. Seller does not store or process full credit card numbers. Payment information is encrypted and tokenized by the payment processor in accordance with PCI-DSS standards.

By providing a payment method and/or electing to save a payment method for future use with the payment processor, Buyer:

  • Authorizes Seller to charge that payment method for approved orders, invoices, shipping charges, service work, or related authorized charges;

  • Represents that Buyer is authorized to use the card or account provided;

  • Agrees that charges may be processed without additional signatures for authorized transactions; and

  • Agrees to promptly update expired or changed payment information.

Seller reserves the right to suspend shipments or services if payment is declined or becomes past due.

5. Non-Conforming Delivery and Risk of Loss

Buyer shall notify Seller in writing of any visible defects, quantity shortages, or incorrect shipments within seven (7) days of receipt. Failure to notify Seller within such time shall be deemed a waiver of any right to return products on those bases, subject to Buyer’s rights under Section 7.

Seller shall retain a security interest in the products until Buyer’s final payment. Risk of loss and title shall pass to Buyer when the products are placed with a carrier or other transport agent.

6. Order Cancellation

(a) Buyer’s Cancellation

Due to the nature of Seller’s products and production schedules, Buyer’s orders may not be canceled once Seller has commenced fulfillment of Buyer’s order (“Commencement”). Buyer may cancel an order for convenience prior to Commencement, subject to a cancellation fee equal to twenty-five percent (25%) of the contract price of the canceled product.

(b) Seller’s Cancellation

Seller may cancel any unfilled order without notice if Buyer becomes insolvent, is adjudicated bankrupt, petitions for or consents to relief under any bankruptcy or reorganization statute, or becomes unable to meet financial obligations in the normal course of business. Any order cancelable by Buyer under Section 6(a) may also be canceled by Seller if notice is provided prior to Commencement.

7. Warranty

(a) Third-Party Products

Seller makes no warranty with respect to products manufactured by third parties and resold by Seller, whether sold separately or incorporated into Seller products. Buyer’s sole warranty, if any, is that provided by the third-party manufacturer.

(b) Seller’s Products

Seller warrants that products manufactured by Seller shall be free from defects in materials and workmanship and shall conform to Seller’s published specifications (or other specifications accepted in writing signed by a duly authorized officer of Seller) for one (1) year from the date of shipment for new products and thirty (30) days from the date of shipment for used products.

This warranty does not apply to products subject to misuse, neglect, accident, modification, or alteration such that the product cannot be tested under normal conditions. Seller shall make the final determination as to whether its products are defective.

Seller’s sole obligation for products failing to comply with this warranty shall be, at Seller’s option, to ship conforming parts for Buyer installation or to have Seller personnel repair/replace non-conforming parts, provided that within fourteen (14) days prior to expiration of the warranty period:
(a) Seller receives written notice of nonconformity; and
(b) Seller determines the product is nonconforming and the cause is not improper installation, repair, or misuse.

THIS WARRANTY AND THE STATED REMEDIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE DISCLAIMED. Seller does not assume or authorize any person to assume any other liability in connection with Seller’s products. Buyer will pass this warranty to any third-party purchaser of Seller’s products.

(c) Buyer’s Designs

NOTWITHSTANDING THE FOREGOING, THERE ARE NO WARRANTIES WHATSOEVER ON ITEMS BUILT OR ACQUIRED, WHOLLY OR PARTIALLY, TO BUYER’S DESIGNS OR SPECIFICATIONS.

(d) Limited Liability

IN NO EVENT SHALL SELLER BE LIABLE FOR PERSONAL INJURY OR PROPERTY DAMAGE OR ANY OTHER LOSS, DAMAGE, COST OF REPAIR OR RE-WORK, OR ANY INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, ARISING FROM OR CONNECTED WITH THIS AGREEMENT OR ITEMS SOLD HEREUNDER, WHETHER ARISING FROM BREACH OF CONTRACT, WARRANTY, OR TORT (INCLUDING NEGLIGENCE). Seller’s aggregate liability shall be limited to the contract value of the products or services that are the subject of the claim.

(e) Recommendations

Buyer acknowledges Seller disclaims any representation, warranty, or guaranty regarding the use, design, application, operation, maintenance costs, engineering, fabrication, or information provided by Seller. Recommendations are not warranties. Failure to provide recommendations does not create liability.

(f) Matters Voiding Warranty

Seller’s warranty is void if:

  1. Buyer fails to use the products as instructed or intended;

  2. Buyer modifies the products;

  3. Buyer repairs or attempts repairs with non-factory parts; or

  4. Buyer improperly repairs the products regardless of parts source.

8. Special Tooling

Seller may impose tooling charges for special tooling (dies, fixtures, molds, patterns). Such tooling remains Seller’s property even if Buyer pays tooling charges. Buyer acquires no interest in Seller apparatus used in manufacturing, even if converted or adapted. Seller may alter, discard, or dispose of tooling at its discretion unless otherwise stated in a Sales Agreement.

9. Buyer’s Property

Buyer-furnished designs, tools, patterns, materials, drawings, confidential information, or equipment may be considered obsolete and destroyed after two (2) consecutive years without Buyer placing an order for the items manufactured using such property. Seller is not responsible for loss or damage while such property is in Seller’s possession or control.

10. Indemnity for Infringement of Intellectual Property Rights

(a) By Seller

Seller will defend and indemnify Buyer against allegations of infringement of U.S. patents, trademarks, copyrights, trade dress, or trade secrets (“Intellectual Property Rights”) in connection with an item sold hereunder, subject to Buyer notifying Seller in writing within ten (10) days after becoming aware and Seller having sole control of the defense and settlement.

If an item is subject to an infringement claim, Seller may, at its option: procure the right to continue use, replace/modify to be non-infringing, or accept return and refund the purchase price less reasonable depreciation. Seller has no liability for claims based on Buyer information, Buyer-specified designs, or modifications/combination/system use. This is Buyer’s exclusive remedy.

(b) By Buyer

Buyer will defend and indemnify Seller against claims of infringement arising from Buyer-provided information or Buyer-specified designs.

11. Confidential Information

Except as required by law, neither party shall use, disclose, or communicate the other party’s confidential information except as necessary to perform obligations hereunder.

12. Force Majeure

Seller is not liable for delay or failure to perform due to circumstances beyond Seller’s reasonable control, including accidents, acts of God, strikes, governmental actions, fires, floods, carrier or supplier delays, shortages of materials, or other causes beyond Seller’s control.

13. Assignment and Subcontracting

Seller may assign its rights or subcontract any part of the work or services as Seller deems necessary or desirable.

14. Notices

Notices are deemed given if sent by prepaid first-class mail to the party’s last known address. Notice to Seller shall be sent to:
Auto Technology Company, 20026 Progress Drive, Strongsville, Ohio 44149.

15. Waiver

Seller’s failure to enforce rights does not constitute a waiver of such rights.

16. Set-Off

Buyer may not set off any amount due Buyer against any amount due Seller.

17. Governing Law

These Terms are governed by the laws of the State of Ohio.

18. Jurisdiction and Venue

Any civil action arising out of this agreement or sale shall be brought in courts of competent jurisdiction sitting in Cuyahoga County, Ohio, which shall be the exclusive venue. Buyer and Seller submit to jurisdiction and waive defenses of lack of jurisdiction or improper venue.

19. Limitation of Actions

No action may be brought against Seller more than thirteen (13) months after the earlier of the invoice date or the date the cause of action accrues.

20. Entire Agreement

These Terms, together with any amendment in a Sales Agreement, constitute the entire agreement between Seller and Buyer regarding products sold and services provided. There are no oral or other agreements pertaining thereto.

Service & Parts Notice
Please contact Auto Technology if you would like Auto Technology to service your equipment, calibrate gauges, or supply replacement parts.

Restocking

Equipment returned (only with Seller approval) for restocking shall be credited at invoice value less a minimum of fifteen percent (15%) of the purchase price, subject to inspection and approval. Items must be shipped prepaid by Buyer unless otherwise authorized in writing.

Procedure for Returning Goods

  1. Contact the Sales Coordinator or other authorized personnel for approval.

  2. After approval, ship prepaid with a packing slip to:
    Auto Technology Company
    20026 Progress Drive
    Strongsville, Ohio 44149
    (440) 572-7800 or 1-800-443-8336

All returns must be approved and are subject to inspection prior to acceptance. Auto Technology is not responsible for damages incurred during return shipment. Returns must be prepaid unless otherwise authorized in writing.