Terms and Conditions

Sales of Services for North America

All quotations, products and services provided by Petroleum Analyzer Company, LP (“PAC”) to any customer, distributor, original equipment manufacturer, end-user or other purchaser (“Buyer”) are furnished only on the terms and conditions stated herein.  By ordering and accepting delivery of products and/or services from PAC, Buyer agrees to and accepts these terms and conditions and agrees that, unless modified by separate negotiated agreement as provided below, these terms and conditions, together with the item, quantity, price, and similar terms as confirmed in PAC’s quotation, order acknowledgement and/or invoice, constitute the entire agreement of the parties, superseding all other communications and documentation. PAC hereby expressly rejects any different or additional terms or requirements, preprinted or otherwise, including without limitation any government procurement regulations or contractual clauses of any nature, contained or referenced in any purchase order or other documentation furnished by Buyer, whether before or after delivery of the products or services, even if receipt thereof is acknowledged by signature or otherwise. No modification of these terms shall be effective unless set out in a separate negotiated agreement signed by an authorized officer of PAC.

DEFINITIONS: 
“Services” means any field commissioning, start-up, installation, supervision, site survey, training, consultation, or professional services furnished by PAC to Buyer as described in the Service Quotation.
“Service Agreement” means Services to be provided by PAC to Buyer over a specified period of time as described in the Service Quotation.”
“Service Quotation” means the quotation provided by PAC to Buyer that sets forth the details of the Services to be performed. Such details may include the location of the equipment where PAC shall perform any on-site Services, and the charges, rates and expenses to be paid by Buyer for the Services. 
“Part” means repair or replacement parts that are either sold to Buyer during the course of performing Services or provided to Buyer as required under the Service Agreement.
“Product” means the one (1) serialized PAC or third party hardware product that is supported by PAC as described, if applicable, in a Service Agreement.
“Turnaround Time” for Depot Care means the time it takes for repair or preventative maintenance and certification once the instrument is received at the depot facility to the time it leaves the depot facility.
                                                                                              

SERVICE AGREEMENT TYPES:

•  Basic Care Agreement: 
• Price includes one (1) on-site or depot preventative maintenance certification service per year for the covered product(s) agreed upon.
•  Complete Care Agreement: 
• • None of the obligations of PAC LP, LLC in this Complete Care shall apply to any Products which have been subjected to misuse, neglect, accident, or (without restricting the generality of the foregoing) any extreme environmental condition or improper handling.
•       • Any instrument issues that are the result of introducing improper application solvents, chemicals, or samples, will not be covered under Complete Care.
•       • Needed repairs can be deemed uncovered under Complete Care terms at the discretion of PAC service department personnel. In these cases, a separate repair quotation will be provided.
•       • Any issues that are deemed to be the result of a 3rd party service vendor will not be covered under Complete Care terms. In these cases, a separate repair quotation will be provided.
• • Complete Care coverage does not apply to cosmetic repairs  
• • Complete Care repairs are only applicable when the performance of the instrument is effected and/or hindered  
• • Service department personnel will decide the best way to repair the instrument quickly and effectively  
• • Complete Care is only applicable to actively produced instrumentation.  
• • Complete Care is offered as a program option to customers that meets the following criteria.  
•        • Visible service history with PAC within the last year, per instrument. 
•        • If a new instrument is to begin Complete Care coverage, any necessary repairs determined to be needed upon the initial visit will not be covered under Complete Care terms.
•        • Product was purchased directly from PAC, not second hand.
•             • Company can transfer internally or acquired based on acquisition.  
•  For each year lapse in Complete Care renewal, a fee of 10% of program cost will be added.
•  

QUOTATIONS & PRICES: All prices are in US Dollars and, unless otherwise specified in a separate written agreement or quotation, are subject to change at any time without notice. Unless otherwise specified therein, all quotations are valid for thirty (30) days and may be changed or withdrawn at any time prior to acceptance. Quotations to non-U.S. Buyers are solicitations for offers to purchase. Clerical or typographical errors are subject to correction. Quoted prices and performance/delivery dates are valid only for the terms and payment schedule specified.  Prices do not include, and Buyer assumes responsibility for payment of, any applicable federal, state, local, or foreign sales, use, occupation, value added, goods and services, excise, property. customs, visa, brokerage, stamp, documentary, permitting, import/export, or other taxes, tariffs, fees, duties, withholdings or other government charges of any nature related to the Services and/or Parts provided by PAC to Buyer. Any such amounts paid by PAC will be added to the applicable invoice and paid by Buyer unless Buyer provides an exemption certificate acceptable to the applicable taxing authority.  

CONSUMABLES: Consumable items, including but not limited to columns, septa, seals, vials, caps, syringes, filters, liners, pistons, nuts and ferrules, jets, igniters, plugs, filament, test samples, fuses, and indicator lamps, are not included in the Services and will be separately invoiced.

ORDERS & ACCEPTANCE: Orders must be presented by an authorized representative of Buyer in writing or via electronic means acceptable to PAC and will be considered accepted only by written or electronic acknowledgement, PAC reserves the right, at its option and without liability, to refuse any order or to specify an alternate schedule if orders from all sources exceed PAC’s available personnel, inventory or ability to deliver. PAC may allocate available personnel and inventory in its sole discretion. Where PAC provides a Service Quotation, orders must accept and reference the applicable quotation in its entirety and without modification in order to receive quoted pricing. Where orders are placed, quoted, acknowledged, and/or invoiced by electronic transmission, the data transmitted will be deemed “in writing” and to have been “signed;” and any printout of electronic transmissions maintained in the ordinary course of business will be considered an “original” and will be admissible as between the parties to the same extent and under the same conditions as other business records maintained in documentary form. PAC shall be entitled to assume that persons placing orders on behalf of Buyer (electronically or otherwise) are authorized to do so and to accept the terms and conditions herein.

CHANGES: Changes requested by Buyer after order acceptance must be submitted in writing and are subject to acceptance by PAC. Costs and delays resulting from such changes shall be solely determined by PAC and binding upon Buyer. Buyer shall inform PAC promptly of any relocation of any equipment for which Services have been scheduled but not yet performed. Any such relocation may, in the sole discretion of PAC, result in a change in price and/or schedule. Accordingly, PAC shall be entitled to an extension of time, and reimbursement of costs.

SCHEDULES; TERMINATION & SUSPENSION: Dates quoted by PAC are estimated based upon Buyer’s specified requirements at time of order acceptance. Services shall be performed Monday through Friday during normal business hours. If equipment is not available to be serviced at the time the Services are scheduled to be performed, Buyer shall still be liable for the cost of such Services.  Unless Services have been performed, Buyer may cancel its order or terminate or suspend performance of Services at Buyer’s convenience, by written notice to PAC, subject to payment of all reasonable costs and charges associated with such termination or suspension as solely determined by PAC, which may include, without limitation, direct or indirect cancellation charges or penalties, handling and storage costs, and other direct, incidental and consequential costs and damages. Delays due to Buyer-requested changes, suspension or deferment, or delay in delivery of required approvals and/or information, may also cause additional expense to PAC, resulting in additional charges to Buyer. PAC’s performance is subject to approval of Buyer’s credit and PAC may cancel, suspend or discontinue delivery of any Services to Buyer if Buyer fails to make any required payment or otherwise fails to meet any of its obligations as provided herein or in any Service Agreement.

PAYMENT TERMS: Payment terms are as stated in PAC’s Service Quotation or order acknowledgement and are subject to change if, in PAC’s discretion, Buyer‘s financial condition or payment records merit such change. Deposits or down payments, if any, are non-refundable; no discount for early payment is authorized without PAC’s written consent. PAC may discontinue performance if Buyer fails to pay any sum due. If Buyer becomes delinquent in any payment due, PAC shall be entitled to exercise any and all available legal remedies, including set off against any sums otherwise due from PAC to Buyer, and may institute credit hold procedures on all open orders. Future orders will not be confirmed until Buyer’s account is brought current, including any outstanding interest charges. PAC may apply any funds received from Buyer in its discretion to the payment of any and all accounts or amounts owed to PAC by Buyer. Unless otherwise specified in a Service Quotation, payment terms will not be affected by any delay in completion or acceptance of services.

LIMITED WARRANTY: 
PAC Parts & Services: PAC warrants that the Services shall be performed in a professional manner consistent with good industry practices, and that all PAC-manufactured Parts (including remanufactured Parts) supplied in connection with the Services will be free from defects in materials and workmanship in each case for ninety (90) days following the completion of the Services. Buyer should inspect all Products upon completion of Services and notify PAC promptly of any defect or non-conformance. Third party equipment, components, parts or consumables not manufactured by PAC are warranted, if at all, only by the original manufacturer and only if and to the extent set forth in the original manufacturer’s warranty, and PAC will have no warranty liability with respect to such third party products or failure of any such supplier to perform under its warranty. PAC’s responsibility shall in all events be limited to re-performance or correction of any defective or non-conforming Services and repair or replacement of any failed or defective PAC-manufactured Part(s), and shall not include any further liability for or arising out of any third party products or installations with which or in which the Products are used. Claims for loss or damage in transit should be made directly to the delivering carrier.

Documentation: PAC shall provide Buyer with such data and/or documentation, if any, as specifically identified in PAC’s Service Quotation or order acknowledgement. All documentation is provided “AS IS” and without warranty.

Limited Remedy: Any breach of the foregoing warranties must be reported prior to expiration of the 90-day warranty period, and Buyer’s exclusive remedy and PAC’s entire liability for breach of the foregoing warranties will be re-performance or correction of any non-conforming Services as necessary to correct the identified defect(s) or non-conformance or if PAC, using reasonable efforts, is unable to re-perform the Services or correct the identified defect(s) or non-conformance to Buyer’s reasonable satisfaction, PAC will credit to Buyer the purchase price paid to PAC for any defective Part(s) and/or an appropriate portion of the fees paid for the non-conforming portion of the Services.

Exclusions: Any warranty claim, support claim, or liability is excluded, and Buyer shall be solely responsible, for any claim, damage, or liability arising out of (1) accident, misuse, abuse, tampering, or neglect, including without limitation loss or damage in transit or lack of routine care or maintenance, (2) operator error, (3) failure to follow applicable operating instructions, safety precautions  and bulletins, including disassembly, modification, or improper or inadequate site preparation, installation, maintenance, repairs, or certification performed by Buyer or a third party not authorized by PAC, (4) misapplication, including without limitation any use of Products outside of normal operating conditions, specifications, or environment, (5) damage, defects, problems, malfunctions, or failures created by Buyer-supplied or third party supplied hardware, parts, components, accessories, software, interfacing, supplies, or attachments or their interface with the Products, (6) inaccuracy of any data, specifications, or information supplied by Buyer pursuant to any purchase order or otherwise, or (7) acts of God such as fire, flood, and natural disasters, fire or water damage, corrosive atmosphere, intermittent power line voltage or frequency, electrical spikes or surges, or other causes external to the Products.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE FOREGOING LIMITED WARRANTY AND REMEDIES ARE EXCLUSIVE AND EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS, TERMS, OR CONDITIONS, WRITTEN OR ORAL, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES, TERMS, OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CORRESPONDENCE WITH DESCRIPTION, AND NONINFRINGEMENT, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.

Certain Legal Limitations: The foregoing warranty gives Buyers specific legal rights which may vary based on local law. When, under applicable law, implied warranties are not allowed to be excluded in their entirety, such warranties will be limited to the duration of the applicable written warranty. No employee, agent, dealer or other person is authorized to give any other warranties on behalf of PAC, nor to assume for PAC any other liability in connection with any of its products.

LEGAL COMPLIANCE: Buyer is responsible for compliance with all applicable laws, regulations, codes, recommendations and requirements of government authorities including payment of all applicable taxes or duties, and for obtaining all licenses and permits pertaining to the purchase, installation, operation, disposition, and use of the Products by Buyer, it being understood that PAC makes no warranty of any kind regarding compliance with such requirements.

WORKSITE SAFETY & INSURANCE: Services and warranty work to be performed at Buyer's facility shall not be performed if PAC reasonably believes conditions at Buyer's facility represent a safety or health hazard to any PAC employee or contractor, and Buyer shall be responsible for taking all precautions reasonably necessary to prevent personal injury to PAC’s employees, agents or contractors at Buyer’s premises. Buyer shall secure and maintain an insurance policy or policies protecting Buyer and PAC against any loss, liability, or expense whatsoever, including product liability, worker's compensation, personal injury, fire, theft, death, property damage, or otherwise, arising from or in connection with the Services. Buyer shall furnish to PAC certificates evidencing all such insurance upon request by PAC.

FORCE MAJEURE: Neither party will be liable for non-performance or delay in performance of any obligation (other than payment of monetary sums due) to the extent caused, either directly or indirectly, by acts of God, failure of supplies or transportation, war, riot, or civil commotion, governmental action or embargo, strikes or labor disputes, or other causes beyond such party’s reasonable control and without negligence on its part, provided that the affected party uses reasonable efforts to avoid or remove any causes of nonperformance and continues performance with reasonable dispatch whenever such causes are removed.  For delays resulting from such causes, performance will be correspondingly extended.

PROPRIETARY INFORMATION: Buyer acknowledges that PAC’s Products and Services utilize, are based upon, and embody various confidential and/or proprietary technology, processes, methods, information, know-how and trade secrets of PAC, and that PAC (or its suppliers or licensors, where applicable) shall exclusively own all inventions, technology, techniques, know-how, engineering, and other proprietary information of any kind used or embodied in the Products, Parts, software, documentation, and other items furnished by PAC or utilized by PAC in connection with the Services, including without limitation all drawings, designs, specifications, materials, methods, documentation, and information, written or oral, all patents, patent applications, copyrights, trademarks, trade names, trade secrets, and other intellectual property and proprietary rights and interests with respect thereto, and all reproductions or derivatives thereof in any form (“Proprietary Information”). Buyer shall not acquire or claim any right, title, or interest in, and shall exercise reasonable care to maintain the confidentiality of, all Proprietary Information provided by or obtained from PAC, and shall use Proprietary Information solely as required for its authorized use of the Products, Parts, and Services as supplied by PAC. Buyer may not copy, adapt, develop, reverse engineer, recast, compile, decompile, translate, disassemble, or create derivative works from any Products, Parts, documentation, or other items provided by PAC, or permit any Representative or third party to do so, or directly or indirectly create, or attempt to create, by disassembling, reverse engineering or otherwise, or from any instructions, manuals, schematics, or other information provided or made available by or on behalf of PAC, any products, parts, systems, software, technologies, ideas, items, or concepts comparable to or competing with those provided hereunder, or any part thereof, or disclose or use any such information for commercial purposes or in a manner detrimental to PAC. Buyer may not remove, alter, or obscure any copyright, trademark, trade name, logo, government restricted rights, or other proprietary or confidentiality notices or legends from any items provided by PAC, shall reproduce such notices and legends on any copies made in accordance with these terms and conditions, and shall not, directly or indirectly, take, authorize or permit any action, or use any procedure or process in any jurisdiction, to assert, register, file, publish, confirm, perfect or claim any right in any intellectual property or proprietary rights of PAC, its suppliers or licensors. Disclosures of Proprietary Information may be made only to Buyer’s Representatives having a specific need to know and a written obligation to protect such information on terms no less restrictive than those contained herein. Buyer shall be responsible for any breach by its Representatives. It is agreed that any breach of this Section may cause PAC irreparable harm for which recovery of damages would be inadequate, and that immediate injunctive or other equitable relief are appropriate and available to PAC to prevent any violation, threatened or actual, of this article, even if monetary damages are available and readily quantifiable, and without proof of actual damage. Except as expressly set forth in these terms and conditions, PAC grants no right, title or interest in any of its intellectual property rights to Buyer.

FINANCE CHARGES & COLLECTION EXPENSES:  Amounts past due will be charged interest at the rate of one (1) percent per month from date of invoice or the maximum legal rate, whichever is less. If PAC deems it necessary to refer an account to an agent or attorney for collection, all costs and expenses of collection (including, without limitation, reasonable attorneys’ fees) will be charged to Buyer’s account and accrue interest at the rate stated above, unless prohibited by applicable law.

LIMITATION OF LIABILITY: Any action against PAC arising out of or relating to the Services, Products, and/or transactions to which these terms and conditions apply, regardless of form, must be brought within twenty-four (24) months after the cause of action arises or performance hereunder has been completed or terminated, whichever is earlier.  Any such action must be brought in the courts of the State of Texas and Buyer submits to the non-exclusive jurisdiction of such courts for purposes of any such action. IN NO EVENT WILL PAC BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR OTHER INDIRECT LOSSES OR DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF BUSINESS OR PROFITS, LOSS OF OR DAMAGE TO DATA, EQUIPMENT, OR PROPERTY, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME, OR CLAIMS OF THIRD PARTIES, HOWEVER CAUSED, WHETHER FORESEEABLE OR NOT, AND EVEN IF ADVISED OF THE POSSIBILITY THEREOF.  THESE LIMITATIONS WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, NEGLIGENCE AND DETRIMENTAL RELIANCE, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING LIMITATION DOES NOT APPLY TO DAMAGES RESULTING FROM PERSONAL INJURY CAUSED BY PAC’S NEGLIGENCE.  PAC’S AGGREGATE LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING OUT OF ANY AND ALL CAUSES WHATSOEVER, INCLUDING WITHOUT LIMITATION DEFECTS IN THE SERVICES< PRODUCTS< PARTS< DOCUMENTATION< OR OTHER ITEMS SUPPLIED BY PAC, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE PAID OR PAYABLE TO PAC FOR THE SERVICE(S), PRODUCT(S), OR ITEM(S) GIVING RISE TO THE CLAIM. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BUYER ACKNOWLEDGES THAT THESE LIMITATIONS OF LIABILITY ARE A MATERIAL PART OF THE BARGAIN BETWEEN THE PARTIES AND ARE REFLECTED IN PRICING, WHICH WOULD BE HIGHER WITHOUT THESE LIMITATIONS.

GOVERNING LAW:  These Terms and Conditions and all transactions to which they may apply, including without limitation any disputes arising out of deliveries or Services provided by TransCore to Buyer, shall be governed by and construed and enforced in accordance with the laws of the State of Texas and the United States of America, without giving effect to any conflict of law provision that would cause the application of the laws of any other jurisdiction except where expressly prohibited by applicable law or constitutional provisions restricting choice of law by a political subdivision, agency or instrumentality. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods shall not be applicable to this agreement or any arrangement arising out of this agreement relative to the supply of the items being supplied hereunder, and any applicable international discovery and service of process conventions will be inapplicable.