A.I.M. Controls General Terms And Conditions

  1. General The terms and conditions contained herein, together with any additional or different terms contained in AIM Controls, LLC.'s ("AIM") Proposal or Purchase Order, if any, submitted to Purchaser (which Proposal shall control over these terms and conditions to the extent it contains any conflicting terms and conditions) or Seller, constitute the entire agreement between the parties with respect to this order and supersede all prior communications and agreements. Acceptance by AIM of Purchaser's order, or Purchaser's acceptance of AIM's Proposal is expressly limited to and conditioned upon Purchaser's acceptance of these terms and conditions which may not be changed or waived except in a writing signed by both parties. Acceptance by Seller of AIM’s purchase order is expressly limited to and conditioned upon Seller’s acceptance of these terms and conditions which may not be changed or waived except in a writing signed by both parties. Any additional, inconsistent or different terms and conditions contained in Purchaser's purchase order or other documents supplied by Purchaser, or in acknowledgements or other documents tendered by Seller, are hereby expressly rejected. Unless the context otherwise requires, the term "Equipment" as used herein includes all equipment, parts, and accessories sold, and all software and application software licensed to Purchaser by AIM, or licensed by Seller to AIM, under this order. Unless the context otherwise indicates, the term "Services" as used herein shall mean labor, supervision and project engineering services provided by AIM under this order. As used herein, the term "Purchaser" shall include the initial end user of the Equipment and/or Services; provided, however, that Paragraph 14(a) shall apply exclusively to the initial end user. As used herein, the term “Seller” shall include all sellers, agents or assigns.
  2. Prices, Taxes, Customs Duties
    • Unless otherwise specified in writing, all written quotations expire thirty (30) days from the date thereof.
    • Unless otherwise stated herein, Services prices are based on normal business hours (8 a.m. to 5 p.m. Monday through Friday). Overtime and Saturday hours will be billed at one and one half (1½) times the hourly rate; and Sunday hours will be billed at one and one half (1½) times the hourly rate; holiday hours will be billed at three (2) times the hourly rate.
    • The price does not include any Federal, state or local property, license, privilege, sales, use, excise, gross receipts, or other like taxes which may now or hereafter be applicable to, measured by, or imposed upon or with respect to the transaction, the Equipment, its sale, its value or its use, or any services performed in connection herewith. Purchaser agrees to pay or reimburse any such taxes which AIM or its suppliers are required to pay or collect. If Purchaser is exempt from the payment of any tax or holds a direct payment permit, Purchaser shall, upon order placement, provide AIM a copy, acceptable to the relevant governmental authorities of any such certificate or permit.
    • AIM's prices herein include customs duties and other importation or exportation fees applicable to AIM's importation into the United States and the rates thereof in effect on the date hereof. Any change in such duties, fees, or rates shall be the basis for a price adjustment in a change order.
  3. Payments
    • Unless specified to the contrary in writing by AIM, payment terms are net cash, payable without offset, in United States Dollars, 10 days from date of invoice payable by wire transfer to the account designated by AIM in the Proposal.
    • If, in the judgment of AIM the financial condition of Purchaser at any time prior to delivery does not justify the terms of payment specified, then AIM may require payment in advance, payment security satisfactory to AIM or cancel any outstanding order, whereupon AIM shall be entitled to receive reasonable cancellation charges. If delivery is delayed by Purchaser, payment shall become due on the date AIM is prepared to make delivery. Delays in delivery or non–conformities in any installments delivered shall not relieve Purchaser of its obligation to accept and pay for remaining installments.
    • Purchaser shall pay, in addition to the overdue payment, a late charge equal to the lesser of 1½ % per month or the highest applicable rate allowed by law on all such overdue amounts plus AIM's attorneys' fees and court costs incurred in connection with collection.
    • AIM shall pay all invoices to Seller within 30 days of receipt of the invoice at AIM’s offices.
  4. Changes
    • Any changes requested by Purchaser affecting the ordered scope of work must be accepted by AIM and resulting adjustments to affected provisions including price, schedule, and guarantees, mutually agreed in writing prior to implementation of the change.
    • AIM may, at its expense, make such changes in the Equipment or Services as it deems necessary, in its sole discretion, to meet any performance guarantees provided for in the Proposal. If Purchaser refuses to approve any such changes, AIM shall be relieved of its obligations to meet such guarantees to the extent to which AIM may be affected by such refusal.
    • Seller may not make any changes to products ordered or to the Terms of Acceptance including price, schedule, and guarantees unless said changes are mutually agreed in writing prior to implementation of the change.
  5. Delivery All Equipment manufactured, assembled or warehoused in the continental United States is delivered F.O.B. point of shipment. Equipment shipped from outside the continental United States is delivered F.O.B. originating point of shipment. Where the scheduled delivery of Equipment is delayed by Purchaser or by Force Majeure, AIM may deliver the equipment by moving it to storage for the account of and at risk of Purchaser. Shipping and delivery dates are contingent upon Purchaser's timely approvals and delivery by Purchaser of any documentation required for AIM's performance hereunder. Claims for shortages or other errors in delivery must be made in writing to AIM within ten days of delivery. Seller shall ship equipment F.O.B. the point of shipment to either AIM or to the end user.
  6. Risk of Loss Notwithstanding any agreement with respect to delivery terms or payment of transportation charges, risk of loss or damage shall pass to Purchaser and delivery shall be deemed to be complete upon delivery to a private or common carrier or upon moving into storage, whichever occurs first, at the point of shipment. AIM shall not accept risk of loss or damage until equipment is received from Seller by AIM, or AIM’s customer, and accepted subject to inspection for damage and completeness.
  7. Title Except with respect to licensed software (for which title does not pass; use being licensed), title to the Equipment sold shall remain in AIM until fully paid for.
  8. Inspection, Testing and Acceptance
    • Any inspections by Purchaser of Equipment on AIM's premises shall be scheduled in advance and during normal working hours.
    • When factory acceptance testing is included in the Agreement, AIM shall notify Purchaser when AIM will conduct a standard acceptance test for Purchaser prior to shipment. Unless Purchaser states specific objections in writing within ten (10) days after completion of the test, completion of the acceptance test constitutes Purchaser's factory acceptance of the Equipment and authorizes shipment.
    • When on–site acceptance testing is included in the Agreement, a standard AIM on–site acceptance test will be performed by AIM's personnel to verify that all Equipment supplied hereunder has arrived at site complete, without physical damage, and is ready for the use specified in the Proposal. Completion of the on–site acceptance test constitutes full and final acceptance of the Equipment. If the acceptance test is not performed within thirty (30) days after arrival of the Equipment at the site, final acceptance shall be deemed made.
  9. Warranty
    • General. AIM warrants the Equipment (excluding software) against defects in material and workmanship for a period of twelve (12) months after installation or eighteen (18) months from date of shipment, whichever first in time occurs. The Seller shall warrant all Equipment for use as designed by the manufacturer.
    • Services. AIM warrants Services against defects in workmanship for a period of ninety (90) days from the date of completion of such Services.
    • Special. If applicable to the scope of AIM's work hereunder, AIM further warrants: (1) spare parts and components sold by AIM against defects in material and workmanship for a period of twelve (12) months after shipment and (2) repaired or refurbished parts repaired by AIM against defects in material and workmanship for a period of Ninety (90) days after shipment, unless repaired pursuant to an original Equipment warranty, in which case the repair is warranted for the time remaining of the original warranty period.
    • Software. If software developed by AIM is furnished hereunder, AIM's sole warranty of such software is that, except as specified below, it will execute in accordance with AIM's published specification when properly installed. The warranty period shall be one (1) year from date of shipment. If the software does not meet the above warranty and if the Purchaser promptly notifies AIM and provides the description of the error and complete information about the manner of its discovery, AIM shall thereupon correct any defect or error by (at its option): (1) modifying or making available to the Purchaser instructions for modifying any erroneous program; or (2) making available at AIM's facility necessary corrected or replacement programs. The foregoing warranty shall not apply to defects resulting from (1) unauthorized modification or (2) Purchaser-supplied software or interfacing. AIM does not warrant that the functions contained in the software will operate in combinations which may be selected for use by the Purchaser, or that the software products are free from errors in the nature of what is commonly categorized by the computer industry as "bugs".
    • Equipment/Services Remedy. Should any failure to conform with the applicable warranties appear during the specified periods under normal and proper use and provided the Equipment has been properly stored, installed, operated and maintained, and if given prompt written notice by Purchaser, AIM shall correct such nonconformity by, at its option, (1) repair or replacement of the nonconforming Equipment or parts thereof, or (2) refund of the purchase price of the nonconforming Equipment or parts thereof, or (3) in the case of nonconforming Services, provide equivalent Services at the job site or refund the price therefor. Repairs or replacements pursuant to warranty shall not renew or extend the applicable original warranty period, provided however, that any such repairs or replacement of Equipment or parts thereof shall be warranted for the time remaining of the original warranty period or 30 days, whichever is longer. AIM shall not be responsible for providing working access to the defect, including disassembly and re–assembly of equipment or for providing transportation to and from repair or factory facility, all of which shall be at Purchaser's risk and expense.
    • These warranties shall not apply to any Equipment or parts thereof which (1) have been improperly repaired or altered; (2) have been subjected to misuse, negligence or accident; (3) have been used in a manner contrary to AIM's instructions; (4) are comprised of materials provided or design stipulated by Purchaser; (5) are used equipment; or (6) result from normal wear and tear.
    • THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF QUALITY AND PERFORMANCE, WRITTEN, ORAL OR IMPLIED, AND ALL OTHER WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR USAGE OF TRADE ARE HEREBY DISCLAIMED BY AIM AND ALL EQUIPMENT MANUFACTURERS.
    • Correction of nonconformities in the manner and for the period of time provided above shall be Purchaser's sole and exclusive remedy for any failure of AIM to comply with its obligations and shall constitute fulfillment of all liabilities of AIM and any Equipment manufacturer (including any liability for direct, indirect, special, incidental or consequential damages) whether in warranty, contract, tort (including negligence) or otherwise with respect to or arising out of the work performed hereunder.
  10. Patent Indemnity
    • AIM shall defend at its own expense any actions brought against Purchaser alleging that the Equipment furnished hereunder by AIM or the use of said Equipment to practice any process supplied hereunder by AIM directly infringes any claim of a patent of the United States of America and to pay all damages and costs finally awarded in said actions. AIM shall have the right to settle or otherwise terminate said actions in behalf of Purchaser. Seller shall defend at its own expense any actions brought against AIM alleging the Equipment furnished by Seller, or the use of said Equipment to practice any process supplied hereunder by Seller directly infringes any claim of patent of the United States of America, and to pay all damages and costs finally awarded in said actions.
    • AIM shall have no obligations hereunder and this provision shall not apply: (1) to any other equipment or processes, including Equipment or processes supplied hereunder by AIM which have been modified or combined with other equipment or processes; (2) to any products or articles manufactured by any equipment or processes; (3) to any patent issued after the date hereof; and (4) in the event any of said actions are settled or otherwise terminated without the prior written consent of AIM.
    • If, in any action hereunder, the Equipment is held to constitute infringement, or the practice of any process using the Equipment is finally enjoined, AIM shall, at its option and its own expense, either procure for Purchaser the right to continue using said Equipment; or, modify or replace it with non–infringing equipment; or, with Purchaser's assistance, modify the process so that it becomes non–infringing; or remove it and refund the purchase price allocable to the infringing equipment. THE FOREGOING PARAGRAPHS STATE THE ENTIRE LIABILITY OF AIM AND EQUIPMENT MANUFACTURER WITH RESPECT TO PATENT INFRINGEMENT.
    • To the extent that said Equipment or any part thereof is modified by Purchaser, or combined by Purchaser with equipment or processes not furnished hereunder ( except to the extent that AIM is a contributory infringer) or said Equipment or any part thereof is used by Purchaser to perform a process not furnished hereunder by AIM or to produce an article, and by reason of said modification, combination, performance or production, an action is brought against AIM, Purchaser agrees to defend and indemnify AIM in the same manner and to the same extent that AIM indemnifies Purchaser in this "Patent Indemnity" paragraph.
  11. Limitation of Liability
    • In no event shall AIM, its suppliers or subcontractors be liable for special, indirect, incidental or consequential damages, whether in contract, warranty, tort, negligence, strict liability or otherwise, including, but not limited to, loss of profits or revenue, loss of use of the Equipment or any associated equipment, cost of capital, cost of substitute equipment, facilities or services, downtime costs, delays, or claims of customers of the Purchaser or other third parties for such or other damages. AIM's liability for any claim whether in contract, warranty, negligence, tort, strict liability, or otherwise for any loss or damage arising out of, connected with, or resulting from this contract or the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, repair, replacement, installation, technical direction of installation, inspection, operation or use of any equipment covered by or furnished under this contract, or from any services rendered in connection therewith, shall in no case (except as provided in the section entitled "Patent Indemnity") exceed one-half (½) of the purchase price allocable to the Equipment or part thereof or Services which gives rise to the claim.
    • All causes of action against AIM arising out of or relating to this contract or the performance or breach hereof shall expire unless brought within one year of the time of accrual thereof.
    • In no event, regardless of cause, shall AIM assume responsibility for or be liable for penalties or penalty clauses of any description or for indemnification of Purchaser or others for costs, damages, or expenses arising out of or related to the Equipment and/or Services.
  12. Laws And Regulations AIM does not assume any responsibility for compliance with Federal, state or local laws and regulations, except as expressly set forth herein, and compliance with any laws and regulations relating to the operation or use of the Equipment is the sole responsibility of the Purchaser. All laws and regulations expressly incorporated herein shall be those in effect as of the date hereof. In the event of any subsequent revisions or changes thereto, AIM assumes no responsibility for compliance therewith. If Purchaser desires a modification as a result of any such change or revision, it shall be treated as a change order. Nothing contained herein shall be construed as imposing responsibility or liability upon AIM for the obtaining of any permits, licenses or approvals from any agency required in connection with the supply, erection or operation of the Equipment.
  13. OSHAAIM warrants that the Equipment will comply with the relevant standards of the Occupational Safety and Health Act of 1970 ("OSHA") and the regulations promulgated thereunder as of the date of this Proposal. Seller warrants that the Equipment will comply with the relevant standards of the Occupational Safety and Health Act of 1970 ("OSHA") and the regulations promulgated thereunder as of the date of this Proposal. Upon prompt written notice from the Purchaser of a breach of this warranty, AIM will replace the affected part or modify it so that it conforms to such standard or regulation. AIM's obligation shall be limited to such replacement or modification. Upon prompt written notice from AIM of a breach of this warranty, Seller will replace the affected part or modify it so that it conforms to such standard or regulation. AIM's or Seller’s obligation shall be limited to such replacement or modification. In no event shall AIM be responsible for liability arising out of the violation of any OSHA standards relating to or caused by Purchaser's design, location, operation, or maintenance of the Equipment, its use in association with other equipment of Purchaser, or the alteration of the Equipment by any party other than AIM.
  14. Software Liscense
    • AIM owns and has all rights to certain proprietary computer software. As part of the sale made hereunder, Purchaser obtains a limited license to use certain proprietary software identified in AIM's proposal, subject to the following: (a) The proprietary software may be used only in conjunction with equipment specified by AIM. (b) The proprietary software is to be kept strictly confidential. (c) The proprietary software shall not be copied, reverse engineered, or modified. (d) The Purchaser's right to use the proprietary software shall become effective upon delivery and shall continue until the related equipment is no longer used by the Purchaser or until otherwise terminated hereunder. (e) The rights to use the proprietary software are non–exclusive, and are non–transferable, except with AIM's prior written consent.
    • Nothing contained in this Agreement shall be deemed to convey any title to or ownership in the software or the intellectual property contained therein in whole or in part to Purchaser, nor to designate the software a "work made for hire" under the Copyright Act, nor to confer upon any person who is not a named party to this Agreement any right or remedy under or by reason of this Agreement. In the event of termination of this License, Purchaser shall immediately cease using the software and without retaining any copies, notes or excerpts thereof, return to AIM the software and all copies thereof and shall remove all machine readable software from all of Purchaser's storage media.
  15. Inventions and Information Unless otherwise agreed in writing by AIM and Purchaser, all right, title and interest in any inventions, developments, improvements or modifications of or for Equipment and Services shall remain with AIM. Any design, manufacturing drawings or other information submitted to the Purchaser remain the exclusive property of AIM. Purchaser shall not, without AIM's prior written consent, copy or disclose such information to a third party. Such information shall be used solely for the operation or maintenance of the Equipment and not for any other purpose, including the duplication thereof in whole or in part.
  16. Force Majeure AIM shall not be liable for loss, damage, detention, or delay, nor be deemed to be in default from causes beyond its reasonable control including but not limited to acts of war (declared or undeclared) fire, strike, labor difficulties, Acts of God, acts or omissions of any governmental authority or of Purchaser, compliance with government regulations, insurrection or riot, embargo, delays or shortages in transportation or inability to obtain necessary labor, materials, or manufacturing facilities from usual sources or from defects or delays in the performance of its suppliers or subcontractors due to any of the foregoing enumerated causes. In the event of delay due to any such cause, the date of delivery will be extended by period equal to the delay plus a reasonable time to resume production and the contract price will be adjusted to compensate AIM for such delay.
  17. Cancellation Any order or contract may be cancelled by Purchaser only upon prior written notice and payment of termination charges, including but not limited to, all costs identified to the order or contract incurred prior to the effective date of notice of termination and all expenses incurred by AIM attributable to the termination, plus a fixed sum of ten (10) percent of the final total selling price to compensate for disruption in scheduling, planned production and other indirect costs.
  18. Termination No termination by Purchaser for default shall be effective unless, within fifteen (15) days after receipt by AIM of Purchaser's written notice specifying such default, AIM shall have failed to initiate and pursue with due diligence correction of such specified default.
  19. Export Control
    • Purchaser represents and warrants that the Equipment and Services provided hereunder and the "direct product" thereof are intended for civil use only and will not be used, directly or indirectly, for the production of chemical or biological weapons or of precursor chemicals for such weapons, or for any direct or indirect nuclear end use. Purchaser agrees not to disclose, use, export or re-export, directly or indirectly, any information provided by AIM or the "direct product" thereof as defined in the Export Control Regulations of the United States Department of Commerce, except in compliance with such Regulations.
    • If applicable, AIM shall file for a U.S. export license, but only after appropriate documentation for the license application has been provided by Purchaser. Purchaser shall furnish such documentation within a reasonable time after order acceptance. Any delay in obtaining such license shall suspend performance of this Agreement by AIM. If export license is not granted or, if once granted, is thereafter revoked or modified by the appropriate authorities, this Agreement may be canceled by AIM without liability for damages of any kind resulting from such cancellation. At AIM's request, Purchaser shall provide to AIM a Letter of Assurance and End-User Statement in a form reasonably satisfactory to AIM.
  20. Assignment Any assignment of this contract or any rights or obligations hereunder without prior written consent of AIM shall be void.
  21. Choice of Law This agreement shall be governed by the laws of the State of Texas, but excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods and excluding Texas law with respect to conflicts of law. Purchaser agrees that all causes of action under this agreement shall be brought in the State Courts of the State of Texas, or the U.S. District Court for the Southern District of Texas, Houston Division. Seller agrees that all causes of action under this agreement shall be brought in the State Courts of the State of Texas, or the U.S. District Court for the Southern District of Texas, Houston Division. If any provision hereof, partly or completely, shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision or portion hereof and these terms shall be construed as if such invalid or unenforceable provision or portion thereof had never existed.
  22. Entire Agreement This Agreement constitutes the entire agreement between AIM and Purchaser or Seller, and there are no agreements, understandings, restrictions, warranties, or representations between AIM and Purchaser or Seller other than those set forth herein or herein provided for.