These terms and conditions of sales (“terms and conditions”) apply to the purchase by Buyer of any and all Electric Motion Company, Inc. (“EMC”) products. EMC hereby gives notice of its rejection to any different or additional terms and conditions other than as stated herein. Buyer’s acceptance of the provisions of EMC’s terms and conditions as recited herein shall be conclusively presumed upon Buyer’s receipt of the product(s), or if no written objection is received by EMC within fifteen (15) days from the date on EMC’s order acknowledgment, whichever event shall first occur.
Standard pricing applies, unless otherwise quoted. EMC, at its sole discretion, reserves the right to modify its standard pricing. Unless otherwise agreed to in writing by EMC, orders will be billed at prices in effect at t h e time the order is shipped by EMC.
Unless otherwise noted on the invoice, payment terms are net thirty (30) days from the invoice date. Invoices will be dated the day of shipment. A service charge of 1.5% per month or, if such rate exceeds the maximum lawful rate, the maximum lawful rate shall be assessed on all past due accounts and shall be payable on demand.
Unless otherwise stated in writing, EMC’s quotations remain valid for thirty (30) days from the date of issue.
Prices do not include any sales, use, excise or similar taxes. Consequently, in addition to the price specified herein, the amount of any present or future sales, use, excise or other similar tax applicable to the sale or use of the equipment hereunder, shall be paid by the Buyer unless prior to shipment Buyer provides EMC with a current tax exemption certificate acceptable to the relevant taxing authorities.
Sales by agents or through overseas representatives shall be made directly by and between EMC and Buyer at prices, terms and conditions of sale specified by EMC. All invoices will be issued by and payment remitted to EMC.
EMC will use reasonable efforts to meet shipment or delivery dates specified by EMC, but such dates are estimates only. In no event shall EMC be liable for any special, consequential, liquidated or other indirect (including loss of profits) or direct damages due to any delay in delivery or shipment or non-delivery, whether or not excused hereunder. In no event shall EMC be liable for any delay or non-delivery if caused directly or indirectly by Acts of God, fire, flood, strike or lockout or other labor dispute, accident, civil commotion, riot, war, governmental regulation or order, whether or not it later proves to be invalid, or from any other cause or causes (whether or not similar to any of the foregoing) beyond EMC’s control.
Any request by Buyer for shipping deferments must be prior approved by EMC and are subject to price negotiation.
EMC warrants to Buyer that the products sold will be free of defects in workmanship or material for a period of one (1) year (or as otherwise specified by EMC) from the date of original shipment by EMC when stored, installed, operated or maintained in accordance with recommendations of EMC and standard industry practice and when used under proper and normal use. EMC shall in no event be responsible or liable for modifications, alterations, misapplication or repairs made to its products by Buyer or others, or for damage caused thereto by negligence, accident or improper use by Buyer or others. This warranty does not include reimbursement for the expenses of labor, transportation, removal, installation or reinstallation of the products. This warranty shall run only to the first Buyer of a product from EMC or the first buyer of that product from that EMC Buyer (which may include an original equipment manufacturer reselling an EMC product for the first time), and is non-assignable and non-transferable and shall be of no force and effect if asserted by any person other than such first Buyer.
ENGINEERING ANALYSIS OR STUDY BY EMC: EMC does not warrant the accuracy of and results from product or system performance recommendations resulting from any engineering analysis or study. This applies regardless of whether a charge is made for the recommendation. Responsibility for selection of the proper product of application rests solely with the Buyer. In the event of errors or inaccuracies determined to be caused by EMC, its liability will be limited to the re- performance of any such analysis or study.
BUYER INSPECTIONS: Tests, inspections and acceptance of all material must be made at the EMC factory. Upon reasonable notice, Buyer’s inspectors are welcome at the factories and are provided with the necessary facilities for carrying out their work. Name and phone number of who should be contacted for inspection should be given to EMC no later than two ( 2 ) weeks prior to t h e scheduled shipment date. Buyer’s inspectors may be required to execute a confidentiality agreement prior to such a visit.
THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WHETHER WRITTEN, ORAL, EXPRESSED OR IMPLIED. THERE ARE NO WARRANTIES OF MERCHANTABILITY OR FITNESS OF ANY PRODUCT FOR A PARTICULAR PURPOSE.
Any claim by Buyer that a product is defective or non-conforming shall be deemed waived by Buyer unless submitted to EMC in writing within thirty (30) days from the date Buyer discovered, or by reasonable inspection should have discovered the alleged defect or non-conformity. Any warranty claim must be brought within one (1) year of discovery of the alleged defect or non-conformity by Buyer or third party. Upon prompt written notice by the Buyer that a product is defective or non-conforming, EMC’s liability shall be limited to repairing or replacing the product, at EMC’s discretion.
IN NO EVENT SHALL EMC BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLE OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER AS THE RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY, INCLUDING WITHOUT LIMITATION LABOR OR EQUIPMENT REQUIRED TO REMOVE AND/OR REINSTALL ORIGINAL OR REPLACEMENT PARTS, LOSS OF TIME, PROFITS OR REVENUES, LACK OR LOSS OF PRODUCTIVITY, LOSS OF USE OF THE PRODUCTS OR ANY ASSOCIATED EQUIPMENT INTEREST CHARGES OR COST OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, FACILITIES, SYSTEMS, SERVICES OR DOWNTIME COSTS, DAMAGE TO OR LOSS OF PROPERTY OR EQUIPMENT, ANY INCONVENIENCE, COST OR DAMAGE ARISING OUT OF ANY DELAY IN PERFORMING, FAILURE TO PERFORM OR OTHER BREACH OF THE WARRANTY SET FORTH IN HEREIN OR OBLIGATIONS UNDER SUCH WARRANTY, OR CLAIMS OF THIRD PARTIES AGAINST BUYER, ARISING OUT OF OR IN CONNECTION WITH THE SALE, INSTALLATION, USE OF, INABILITY TO USE, OR THE REPAIR OR REPLACEMENT OF THE PRODUCTS SOLD PURSUANT TO THESE TERMS. IN NO EVENT SHALL EMC’S TOTAL LIABILITY IN RESPECT OF ANY AND ALL CLAIMS OF ANY KIND WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH, OR RESULTING FROM EMC’S SALE, DELIVERY, RESALE, REPAIR, REPLACEMENT OR FURNISHING OF ANY PRODUCTS, INCLUDING PERFORMANCE OR BREACH OF THE WARRANTY SET FORTH HEREIN OF THESE TERMS, EXCEED THE PURCHASE PRICE ALLOCABLE TO THE GOOD(S) THAT GIVE RISE TO THE CLAIM, AND ANY AND ALL SUCH LIABILITY SHALL TERMINATE UPON THE EXPIRATION OF THE APPLICABLE WARRANTY PERIOD FOR SUCH GOOD(S).
INTELLECTUAL PROPERTY INDEMNITY If EMC is using a design provided by or on behalf of Buyer, Buyer shall indemnify and hold harmless EMC for any and all claims or demands of infringement of a third party’s intellectual property rights.
Unless mutually agreed to otherwise, all shipments are F.O.B. Origin (Uniform Commercial Code) for all product(s) being shipping domestically and EX Works (2010 Incoterms®) for all product(s) being shipped internationally. Risk of loss and title of products shall pass to Buyer upon delivery to the designated carrier. Acceptance of a specified routing does not constitute a guarantee of ship date, transit time or arrival date. EMC will not be responsible for any cartage or storage charges at destination.
EMC’s responsibility for exception-free delivery ceases when the transportation company receives shipment in good condition. Claims for loss or damage during transport must be reported directly to the carrier by Buyer. EMC’s willingness to assist does not indicate liability for claim or replacement.
Shipping dates provided by EMC are estimates only. EMC shall make every reasonable effort to meet Buyer’s shipping requirements provided EMC promptly receives all necessary information from Buyer and approved drawings if required by EMC. EMC will not assume liability because of delayed shipment for any reason. EMC’s responsibility ceases upon acceptance of shipment by carrier.
Cancellation of an order for current stock product requires that EMC receive notice a minimum of five (5) days prior to EMC’s scheduled ship date. Requests for cancellation of orders for non-stock products are at the sole discretion of EMC, and may only be considered if (i) no work has been performed or material purchased for the non-stock products, and (ii) notice is received by EMC a minimum of five (5) days’ prior to EMC’s scheduled ship date. All cancellations of non- stock products, if approved by EMC, may be subject to a cancellation charge assessed by EMC. Stock product orders shipped after cancellation notice is received, but before expiration of the five day requirement, may be returned subject to compliance with all Returned Product General Conditions, see below.
General Conditions applying to all transactions:
condition will be charged and added to the restocking charge.
10. Unauthorized returns will be refused. Product returned without proper authorization from EMC will, at the sole
option of EMC, be returned to the Buyer freight collect, or scrapped immediately with no issuance of credit. Unauthorized product included in a return will not be credited.
Unless otherwise agreed to in writing by EMC, shipments will be made in standard package quantities or multiples thereof. EMC Customer Service will notify the Buyer of any orders that do not comply with this policy, and Buyer shall authorize an adjustment to comply with standard package quantities before the order will be entered.
All prices shown in the price lists are subject to change without notice. All quotations on special products or modifications to catalog products are binding only if confirmed in writing by the factory for the period shown on the quotation. Price protection will be provided for a period of thirty (30) days from date of quotation from EMC.
All orders are taken and prices quoted only with the understanding that each order shall be subject to the acceptance of EMC upon such terms as we may specify when order is received. Prices to cover amount of any sales or excise tax which now or hereinafter may be imposed by any taxing authority upon this product or the sale or manufacture thereof.
EMC reserves the right to discontinue products, modify designs, and change specifications or prices without incurring obligation.
All invoices are due and payable per the standard terms stated herein. In the case of an apparent discrepancy in a line item charge, Buyer is obligated to advise EMC Customer Service in writing of the nature of the claimed discrepancy within five (5) days of receipt of the invoice. This includes all requests for proof of delivery. A claim of discrepancy does not relieve Buyer of the absolute obligation to pay the remaining balance of the invoice in accordance with the standard terms of payment. Upon review, EMC will have sole discretion to resolve the discrepancy; and the Buyer expressly agrees to abide by EMC’s decision. EMC will promptly advise Buyer of its decision regarding any disputed items or charges.
EMC warrants that at time of shipment, the products will conform to the applicable occupational safety and health standards promulgated pursuant to the Federal Occupational Safety and Health Act of 1970, which are in effect on the date that EMC enters its acknowledgment of Buyer’s order. The Buyer’s exclusive remedy and EMC’S liability for breach of this warranty is limited to replacement of the nonconforming products.
Buyer acknowledges that the products, and all related technical data, that have been or will be purchased from EMC are subject to the Export Administration Regulations (EAR) and the U.S. Department of Commerce. Buyer further agrees that, except as permitted by applicable U.S. laws and regulations, the export, re-export, resale, or transfer of EMC products will NOT involve (i) persons or entities included on Restricted Parties Lists published by the U.S. Government or any entities 50% or more owned by any such designated persons or entities; (ii) any country or region subject to comprehensive or significant U.S. trade sanctions; or (iii) any other person or entity if Buyer knows or has reason to believe the Products are intended or likely to be used for any restricted purpose (i.e. chemical, biological, or nuclear weapons, terrorism, sanctioned military uses). Buyer also agrees that EMC products will be used in compliance with all applicable laws and regulations of the country(s) in which Buyer does business.
EMC represents that any goods to be delivered hereunder will be produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended.
These Terms and Conditions supersede all those published and previously issued by Electric Motion Company, Inc., Southport Products, LLC, Engineered Wire and Cable, LLC, and Solar Brackets, LLC.