Vertiv Seller User Manual
TERMS AND CONDITIONS OF SALE
Vertiv Corporation is herein referred to as the “Seller” and the customer or person or entity purchasing goods and/or services (“Goods”) and/or
parts required for services (“Parts”) or licensing software and/or firmware, which are preloaded, or to be used with Goods (“Software”) from Seller is
referred to as the “Buyer.” These Terms and Conditions, any price list or schedule, quotation, acknowledgment, Seller’s scope or statement of work,
or invoice from Seller relevant to the sale of the Goods, Parts and licensing of Software by Seller, and all associated terms, conditions and documents
incorporated by specific reference herein or therein, constitute the complete and exclusive statement of the terms of the agreement (“Agreement”)
governing the sale of Goods, Parts, and/or license of Software by Seller to Buyer. Any discrepancies between the terms of the above referenced
documents shall be resolved by Seller. Seller’s acceptance of Buyer’s purchase order is expressly conditional on Buyer’s assent to all of Seller’s terms
and conditions of sale, including terms and conditions that are dierent from or additional to the terms and conditions of Buyer’s purchase order.
Buyer’s acceptance of the Goods, Parts, and/or Software will manifest Buyer’s assent to the terms of this Agreement. Seller reserves the right in its
sole discretion to refuse orders.
1. Prices. Unless otherwise specified in writing by Seller, the price quoted or specified by Seller for the Goods, Parts and/or Software shall
remain in eect for thirty (30) days after the date of Seller’s quotation, Seller’s scope of work or acknowledgment of Buyer’s order for the
Goods, whichever occurs first, provided an unconditional authorization from Buyer for the shipment or performance of the Goods and/or
Parts, and/or Software is received and accepted by Seller within such time period. If such authorization is not received by Seller within such
thirty (30) day period, Seller shall have the right to change the price for the Goods, Parts and/or Software to Seller’s price for the Goods, Parts,
and/or Software at the time of Seller’s shipment or performance thereof. All prices and licensee fees are exclusive of taxes, transportation
and insurance, which are to be borne by Buyer. Seller reserves the right to correct any obvious errors in specifications or prices. Unless
otherwise specified by Seller, Parts, that are required for the performance of services will be furnished at Seller’s then prevailing prices.
A service charge of $19.99 will be added to all orders which, excluding shipping charges, taxes, and insurance, do not meet the minimum
order value of $750.00. The service charge amount and/or minimum order value may be changed by Seller at any time, without notice.
2. Taxes. Any current or future tax, duty, tari or governmental charge (or increase in same) aecting Seller’s costs of production, sale, services
or delivery or shipment of Goods Parts, and/or Software, or which Seller is otherwise required to pay or collect in connection with the sale,
purchase, delivery, performance, storage, processing, use or consumption of Goods, Parts, and/or Software, shall be for Buyer’s account and
shall be added to the price or billed to Buyer separately, at Seller’s election.
3. Terms of Payment. Unless otherwise specified by Seller, terms are net thirty (30) days from date of Seller’s invoice in U.S. currency. Seller
shall have the right, among other remedies, either to terminate this Agreement or to suspend further performance under this and/or other
agreements with Buyer in the event Buyer fails to make any payment when due, which other agreements Buyer and Seller hereby amend
accordingly. Buyer shall be liable for all expenses, including attorneys’ fees, relating to the collection of past due amounts. If any payment owed
to Seller is not paid when due, it shall bear interest, at a rate to be determined by Seller, which shall not exceed the maximum rate permitted
by law, from the date on which it is due until it is paid. Seller may preserve its interests in payment by enforcing any applicable mechanic’s,
labor, construction or similar lien rights. Should Buyer’s financial responsibility become unsatisfactory to Seller, cash payments or security
satisfactory to Seller may be required by Seller for future deliveries or performance of Goods, Parts, and/or Software. If such cash payment or
security is not provided, in addition to Seller’s other rights and remedies, Seller may discontinue deliveries or performance. Buyer hereby grants
Seller a security interest in all Goods, Parts, and/or Software sold to Buyer by Seller, which security interest shall continue until all such Goods,
Parts, and/or Software are fully paid for, and Buyer, upon Seller’s demand, will execute and deliver to Seller such instruments as Seller requests
to protect and perfect such security interest.
4. Shipment and Delivery.
acknowledged or quoted by Seller, all shipping dates and/or performance dates are approximate and not guaranteed. Seller reserves the right
to make partial shipments. Seller, at its option, shall not be bound to tender delivery of any Goods, Parts, and/or Software for which Buyer has
not provided shipping instructions and other required information. If the shipment or performance of the Goods, Parts, and/or Software is
postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all storage costs and other additional expenses
resulting therefrom. For sales in which the end destination of the Goods, Parts, and/or Software is outside of the United States (except for
those international sales to Seller’s ailiated companies), risk of loss and legal title to the Goods, Parts, and/or Software shall transfer to Buyer
immediately after the Goods, Parts, and/or Software have passed beyond the territorial limits of the United States. For international sales to
Seller’s ailiated companies, all shipments of Goods, Parts, and/or Software are made on a Delivered at Terminal (DAT) basis, per Incoterms 2010,
with freight charges from Seller’s facility to destination terminal invoiced to buyer either on a Prepaid or PPD/Add basis, as agreed to by Seller and
Buyer. All other shipments of Goods, Parts, and/or Software are made on an Ex Works (EXW) Seller’s Shipping Point basis, per Incoterms 2010,
with Seller responsible to load goods on Buyer’s nominated vehicle. Any claims for shortages or damages suered in transit are the responsibility
of Buyer and shall be submitted by Buyer directly to the carrier. Notwithstanding the above, risk of loss and legal title to Parts shall transfer to
Buyer (i) upon delivery by the Seller, or (ii) at the time Parts are placed in storage due to Buyer’s delay or postponement. Shortages or damages
must be identified and signed for at the time of delivery. Requests for changes in quoted transportation modes will not be made or accepted on
orders already processed unless otherwise mutually agreed upon by Seller and Buyer. Requests for changes in quoted transportation modes to
orders already accepted by Seller will be subject to new freight terms and billed at the price in eect at the time of the request for change. Any
request for changes to quoted transportation modes must be submitted in writing to Seller and are subject to Seller’s acceptance and adjustment
in freight price. The transportation costs quoted by Seller may be changed by Seller without notice in order to reflect Seller’s prices at the time of
shipment and will reflect any market increase in transportation costs. If a price for delivery has been quoted, any changes at the destination
transportation modes, spotting, switching, handling, storage and other accessorial services and demurrage shall be borne by the customer,
and any related increase in transportation charges shall be added to the quoted price.
While Seller will use all reasonable commercial eorts to maintain the delivery date(s) and/or performance dates
for
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TERMS AND CONDITIONS OF SALE
5. Limited Warranty. Subject to the limitations of Section 6, Seller’s standard warranty that is applicable to the Goods and/or Software at the
time of purchase is the only warranty applicable to the sale of Seller’s Goods and/or Software and its terms, conditions and limitations are
incorporated by reference herein and Seller warrants that it will perform the services as described in these terms and conditions and will
exercise all reasonable skill, care and due diligence in the performance of the services. Seller warrants that all services performed shall be
free from faulty workmanship for a period of thirty (30) days from completion of services. Thermal Solution Components, including but not
limited to, fans, air-to-air heat exchangers, air conditioners, emergency DC vent systems and filtered thermal vent systems are warranted to
be free from defects in material and workmanship for a period of twelve (12) months from date of shipment, or manufacturer’s pass through
warranty, whichever is longer, provided the following conditions are met: (i) Semi-annual preventive maintenance logs are maintained by
Buyer and such logs are available to Seller upon request; and (ii) Input voltage to the air conditioner unit does not vary by greater than
+/-10%; and (iii) in the event of accidental or intentional shut-o, a Thermal Solution Component will not be restarted for at least five (5)
minutes; and (iv) The refrigerant specified on the unit nameplate label will be the only refrigerant utilized in the air conditioner unit; and, (v)
Buyer complies with all installation, operations and maintenance instructions provided by Seller. Goods, Parts and/or Software purchased by
Seller from a third party for resale or license to Buyer (“Resale Products”) shall carry only the warranty extended by the original manufacturer.
To the extent assignable, Seller assigns to Buyer any warranties that are made by manufacturers and suppliers of such Resale Products.
EXCEPT AS SPECIFIED ABOVE, RESALE PRODUCTS FURNISHED HEREUNDER ARE FURNISHED AS-IS, WHERE-IS, WITH NO WARRANTY
WHATSOEVER. THE WARRANTY SET FORTH IN THIS SECTION 5 AND THE WARRANTY SET FORTH IN SECTION 8 ARE THE SOLE AND
EXCLUSIVE WARRANTIES GIVEN BY SELLER WITH RESPECT TO THE GOODS AND/OR SOFTWARE AND ARE IN LIEU OF AND EXCLUDE
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO
SELLER IN SPECIFICATIONS, DRAWINGS OR OTHERWISE, AND WHETHER OR NOT SELLER’S PRODUCTS ARE SPECIFICALLY DESIGNED
AND/OR MANUFACTURED BY SELLER FOR BUYER’S USE OR PURPOSE. SELLER’S WARRANTY EXTENDS ONLY TO PURCHASERS WHO
BUY FOR INDUSTRIAL OR COMMERCIAL USE. This warranty does not extend to any losses or damages due to misuse, accident, abuse,
neglect, normal wear and tear, negligence (other than Seller’s), unauthorized modification or alteration, use beyond rated capacity, unsuitable
power sources or environmental conditions, improper installation, repair, handling, maintenance or application or any other cause not the fault
of Seller. To the extent that Buyer or its agents have supplied specifications, information, representation of operating conditions or other data
to Seller in the selection or design of the Goods and/or Software and the preparation of Seller’s quotation, and/or scope of work, and in the
event that actual operating conditions or other conditions dier from those represented by Buyer, any warranties or other provisions contained
herein that are aected by such conditions shall be null and void. Buyer assumes all other responsibility for any loss, damage, or injury to
persons or property arising out of, connected with, or resulting from the use of Goods, Parts, and/or Software, either alone or in combination
with other products/components.
6. Limitation of Remedy and Liability. THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER (OTHER
THAN THE WARRANTY PROVIDED UNDER SECTION 8) SHALL BE LIMITED TO REPAIR, CORRECTION OR REPLACEMENT, OR REFUND
OF THE PURCHASE PRICE UNDER SECTION 5. SELLER SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE
AND THE REMEDIES OF BUYER SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE. IN NO EVENT, REGARDLESS OF THE FORM OF THE
CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR
OTHERWISE), SHALL SELLER’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC
GOODS, PARTS, AND/OR SOFTWARE PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. BUYER AGREES THAT
SELLER’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS SHALL NOT EXTEND TO INCLUDE INCIDENTAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES. The term “consequential damages” shall include, but not be limited to, loss of anticipated profits, business interruption,
loss of use, revenue, reputation and data, costs incurred, including without limitation, for capital, fuel, power and loss or damage to property or
equipment. It is expressly understood that any technical advice furnished by Seller with respect to the use of the Goods, Parts and/or Software
is given without charge, and Seller assumes no obligation or liability for the advice given, or results obtained, all such advice being given and
accepted at Buyer’s risk.
7. Insurance. Seller shall maintain the following insurance or self-insurance coverage: Worker’s Compensation in accordance with the statutory
requirements of the state in which the work is performed. Employer’s Liability with a limit of liability of $2,000,000 per occurrence for bodily
injury by accident or bodily injury by disease. Commercial General Liability (CGL) for bodily injury and property damage with a limit of
$2,000,000 per occurrence and per location aggregate. Automobile Liability insurance that covers usage of all owned, non-owned and leased
vehicles and which is subject to a combined single limit per occurrence of $2,000,000. Automobile Liability insurance includes Contractual
Liability, but no special endorsements. Buyer expressly acknowledges and agrees that Seller has set its prices and entered into this Agreement
in reliance upon the limitations of liability, insurance coverage, and other terms and conditions specified herein, which allocate the risk between
Seller and Buyer and form a basis of this bargain between the parties.
8. Patents and Copyrights. Subject to the limitations of the second paragraph of Section 6 and any and all associated terms, conditions and
documents incorporated by specific reference by Seller. Seller warrants that the Goods and/or Software sold, except as are made specifically
for Buyer according to Buyer’s specifications, do not infringe any valid U.S. patent or copyright in existence as of the date of shipment. This
warranty is given upon the condition that Buyer promptly notify Seller of any claim or suit involving Buyer in which such infringement is
alleged and cooperate fully with Seller and permit Seller to control completely the defense, settlement or compromise of any such allegation
of infringement. Seller’s warranty as to utility patents only applies to infringement arising solely out of Buyer’s operation according to Seller’s
specifications and instructions of such Goods and/or Software. In the event (i) such Goods and/or Software are held to infringe such a U.S.
patent or copyright in such suit, and the use of such Goods and/or Software is enjoined, or (ii) a compromise or settlement is made by Seller.
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