2 - INCOE® Corporation
Contents
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17. or procedures unless specifically contained in the Agreement 12 Remedy and Limitation of Seller s Liability A Defective or non conforming Goods discovered and re turned during the warranty period shall be repaired or re placed 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 ofthe 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 CIRCUMSTANCES SHALL SELLER BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES 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 spe cifically provided by the UCC as modified and limited herein The replacement or repair of Goods by
18. THE START 2 5 4 LOC ON 2 30 120 5 3F LOC 20 2 5 5 EE L 1 A TAR ot mE a lt
19. and request a written confirma tion orrevision Prices do notinclude taxes and Buyer shall pay all applicable sales or other taxes levied with respect to Goods and replacements and the Agree ment 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 1 596 per month to the extent allowed by law and otherwise at the highest written con tract rate allowed by law E All amounts due on installation or other event which requires the action or co operation of Buyer which Buyer fails to supply timely shall become due upon such failure 4 Delivery Shipping dates are estimates based on S
20. 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 au thorization 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 return 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 INCLUDING BUT NOT LIMITED TO THOSE OF FITANESS FOR A PARTICULAR PURPOSE MERCHANTABILITY AND NON INFRINGEMENT Seller does not warrant the Goods will comply with the requirements of any safety or environ mental code or regulation of any federal state municipality or other jurisdic tion beyond the specific express warranties in this Ag
21. 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 connec tion 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 dam ages and expenses including reasonable attorney fees under theories of tort product liability negligence ordinary 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 CONSEQUEN TIAL PUNITIVE EXEMPLARY OR INCIDENTAL DAMAGES AS DEFINED IN THE UCC OR OTHERWISE This limitation shall be enforced regardless of whether Seller has defaulted in its warranty or other obligations Any legal in ability 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 B
22. 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 regarding patent infringement 11 Disclaimer and Limitation of Express Warranties There are no express warranties other than those contained inthe Agreement Any representations as to performance and other matters except as contained in the Agreement were for illustrative purpos es only and do not constitute a warranty Whether or nottheGoodsareto beusedexclusivelybyBuyer thereshallbenothirdpartybeneficiaries totheexpresswarrantiescontainedherein Sellerdoesnotwarrantanyportionofthe GoodsnotmanufacturedbyornotfurnishedbySeller whetherornotspecifiedbyBuyer 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
23. 074 8907 310 INCOE H K Ltd E info incoe de 1205 Leader Industrial Centre 57 59 Au Pui Wan Street Fo Tan Shatin N T INCOE SOUTH AMERICA Hong Kong INCOE International Brasil Ltda Rua Eugenio Ulhano 335 Jardim Virginia Itatiba SP 13257 480 Brasil Sales amp Support T 852 2790 8840 F 852 2790 8411 E info hk incoe cn Sales amp Support INCOE SINGAPORE T 55 11 4538 2445 INCOE Singapore Pte Ltd i 55 11 4524 5690 8 Boon Lay Way 03 02 E incoebrasil incoe com br TradeHub 2 609964 Singapore Singapore Sales amp Support T 65 6 515 5300 F 65 6 861 1163 E support incoesing com WWW incoe com Pg 15 INCOE CORPORATION 3 2010 71 477754 NOTES RIGHT FROM THE START Pg 16 9 INCOE CORPORATION 4 2010 WWW Incoe com INCOE CORPORATION 3 2010 WWW Incoe com HU FIGHT FROM THE START
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25. ORATION 4 2010 FIGHT FROM THE START MICROCOM AS Mam a i iB AY AEREAS Exp www incoe com O Es Sle AE Pala es mcs m dde TZE date a EEN aia 1 161 10 a HiA Aba Oi TIA A iid Lol Cae TIZ E otr str E E IIVE RG LY Su MESE Otr HiA Zt eS
26. SERVES THE RIGHT TO MAKE AN AD JUSTMENT IN THE PRICE OF THE GOODS No modifications limitations waivers or discharge ofthe 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 provisions 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 employ ees contractors and suppliers 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
27. 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 5096 and 7596 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 pub www incoe com EO FIGHT FROM THE START lished 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 C Seller s warranties shall apply only if the Goods i ha
28. e covered under one or more of the following Patents USA 5 269 677 5 660 369 Canada 2 062 903 Germany 4028660 4324275 Japan 2 093 613 and other foreign patents pending INCOE Corporation 4 2010 website www incoe com manuals MICROCOM MALAUS FIGHT FROM THE START 5 2 INCOE NORTH AMERICA INCOE CHINA SHANGHAI INCOE Corporation INCOE Hotrunners Shanghai Co Ltd 1740 East Maple Road 399 Xuanzhong Road Building 16 Troy Michigan 48083 Pudong New Area USA Shanghai 201314 China Main T 1 248 616 0220 F 1 248 616 0225 Sales amp Support E info incoe com T 86 21 5818 6300 F 86 21 5818 6303 Sales T 1 248 556 7770 E info incoe cn F 1 248 616 0227 E customer support incoe com INCOE CHINA DONGGUAN BRANCH OFFICE INCOE Hotrunners Shanghai Co Ltd Room B 5 F Hao Yun Building 2nd Huan Road Changan Town Dongguan Guangdong China Support T 1 248 556 7790 F 1 248 556 7799 E tech support incoe com INCOE EUROPE Sales Support T 86 769 8535 5881 F 86 769 8542 2998 E info dg incoe cn INCOE International Europe Carl Zeiss Stralge 47 D 63322 Rodermark Germany Sales amp Support T 49 0 6074 8907 0 DG AIS DONS F 49 0 6
29. eller s present engineering and manu facturing 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 ship ping dates are further subject to Seller s prompt receipt from Buyer of a writ INCOE CORPORATION 4 2010 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 ship ment 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 o
30. iability to Seller written instructions for installing maintaining and operating the Goods At Buyer s request and cost Seller may furnish personnel and equip ment 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 othertravel expenses Buyer shall have competent 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 License of all user manuals software programs firmware and stor age 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 Soft ware s source code Title and all ownership rights to the Software remain with Seller its licensors or its suppliers The Software is the proprietary inf
31. ically 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 referenc ing 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 RE LATED TO THE AGREEMENT The parties stipulate to the convenience of Michi gan 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
32. n of the purchase price with the tribunal pending final adjudication An action shall accrue no later than shipment of the Goods 330439 2 21 01 INCOE CORPORATION 3 2010 MICROCOM m EO E FIGHT FROM THE START 5 1 INCOE NORTH AMERICA Support T 1 248 556 7790 F 1 248 556 7799 E tech support incoe com INCOE EUROPE Sales amp Support T 49 0 6074 8907 0 F 49 0 6074 8907 310 E info incoe de INCOE SOUTH AMERICA Sales amp Support T 55 11 4538 2445 F 55 11 4524 5690 E incoebrasil incoe com br INCOE HONG KONG Sales amp Support T 852 2790 8840 F 852 2790 8411 E info hk incoe cn Pg 14 www incoe com INCOE CORPORATION 4 2010 INCOE CHINA SHANGHAI Sales amp Support T 86 21 5818 6300 F 86 21 5818 6303 E info incoe cn INCOE SINGAPORE Sales amp Support T 65 6 515 5300 F 65 6 861 1163 E support incoesing com INCOE CHINA DONGGUAN Sales amp Support T 86 769 8535 5881 F 86 769 8542 2998 E info dg incoe cn These products ar
33. 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 Agreement 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 parties THE SELLER IS WILLING TO NEGOTIATE WRITTEN CHANGES TO THESE TERMS AND CONDITIONS BUT RE
34. orma tion 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 con fidential 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 DFO bushings three years for cast pro rated and DF heaters one year pro rated for screen pacs fast
35. ormation 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 Agreement 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 compliance 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 portio
36. r enactment of any law ordi nance regulation ruling or order or ii the lack of usual means or transporta tion 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 accep tance 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 specified 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 objection 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 specificity 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 Buy er Seller may furnish upon request and without additional cost or l
37. reement 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 includ www incoe com MICROCOM WARRANTY ing those provided under purchase orders subsequent to the Agreement re lated to the Goods are subject to all limitations 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 vol untary 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
38. uyer recover more than the purchase price 18 Security Interest Power of Attorney In addition to any security interest granted by the UCC the Buy er hereby grants a security interest to the Seller in all Goods and documents related thereto and proceeds and products there from to secure all obligations of the Buyer to the Seller whether or not arising under the Agreement Buyer shall sign financing statements evi dencing the security interest as reasonably requested by Seller or Seller may file a copy of the Agreement or portion thereof as a financ ing 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 security 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 not ed 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 inf
39. ve 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 negli gence 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 op eration 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 asser tions of patent infringement and provide Seller with assistance and informa tion 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 acqui sition of a license
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