Terms & Conditions of Sales and Shipment
ACKNOWLEDGEMENT AND ACCEPTANCE OF ANY ORDER BY SELLER IS EXPRESSLY LIMITED TO AND MADE CONDITIONAL UPON THE TERMS AND CONDITIONS CONTAINED HEREIN. ANY OF THE PURCHASER’S TERMS AND CONDITIONS WHICH ARE IN ADDITION TO OR DIFFERENT FROM THOSE CONTAINED HEREIN AND WHICH ARE NOT SEPARATELY AGREED TO IN WRITING (EXCEPT ADDITIONAL PROVISIONS SPECIFYING QUALITY, CHARACTER OF THE PRODUCTS ORDERED, AND SHIPPING INSTRUCTIONS) ARE HEREBY OBJECTED TO AND SHALL BE OF NO EFFECT. THE PURCHASER SHALL BE DEEMED TO HAVE ASSENTED TO ALL TERMS AND CONDITIONS CONTAINED HEREIN IF ANY PART OF THE PRODUCTS DESCRIBED HEREIN IS ACCEPTED.
Orders or other requests, whether oral or written, for machinery or equipment (Equipment”), or the supply or sale of spare or replacement parts (Parts”) or for services (Services”) to be provided by Electro-Mechanical Industries, Inc., on behalf of itself and its divisions and subsidiaries (Seller”) to its customers (each a Buyer”) are subject to Seller written acceptance by an authorized representative of Seller and any orders so accepted will be governed by (i) the terms and conditions stated in these Terms and Conditions for provision of Equipment, Parts or Services ( Terms and Conditions”), (ii) the written proposal submitted by Seller to Buyer ( Proposal”), if any, (iii) the written order acknowledgment issued by Seller to Buyer ( Acknowledgment”), if any (iv) any change orders identified as such and agreed to in writing by Seller (the Order, Terms and Conditions, Proposal, Acknowledgment, and any such change order, and any such additional terms as agreed to in writing by an authorized representative of Seller collectively referred to herein as Agreement.” Buyer’s submission of a purchase order (or other similar document) shall be deemed to be an express acceptance of these Terms and Conditions notwithstanding language in Buyer’s purchase order (or other similar document) inconsistent herewith, and any inconsistent language in Buyer’s purchase order (or other similar document) is hereby rejected. Buyer’s purchase order (or other similar document is incorporated in this Agreement, only to the extent of specifying the nature and description of the Equipment, Parts or Services and then only to the extent consistent with the Proposal or Acknowledgment. In the event of any conflict between a Proposal and an Acknowledgement, the Acknowledgment shall prevail.
Prices of Equipment, Parts or Services shall be as stated in the Proposal or Acknowledgment, or if there is no Proposal or Acknowledgment, as otherwise agreed to in writing by Seller in writing. All price quotations are Ex-works (INCOTERMS 2000) Seller’s premises or as agreed per quote and are subject to change without notice. All sales, use, import, excise and like taxes, whether foreign or domestic, shall be charged to and borne by Buyer. Seller bears no responsibility for any consular fees for legalizing invoices, certificates of origin, stamping bills of lading, or other charges required by the laws of any country of destination, or any fines imposed due to incorrect declarations. Charges will be added for factory preparation and packaging for shipment and insurance. Minimum freight and invoice charges apply, as in effect at the time of order. If by reason of any act of government, the cost to Seller of performing its obligations hereunder is increased, such increase shall be added to the quoted price.
3. PAYMENT TERMS
Unless alternate payment terms are specified or approved by Seller’s credit department, all charges, including applicable packing and transportation costs, billed by Seller are payable within Net 30 days of the date of invoice. Interest at maximum applicable legal rate or 18% per annum, whichever is lower, may be charged on any amounts not paid within 30 days from the date of an invoice. A charge of $25.00 shall be imposed on any returned checks. Any amounts that are past due shall be placed on hold and Seller. shall have the right to withhold any future unshipped orders. Seller reserves the right to modify or withdraw credit terms at any time without notice. Unless otherwise specified all payments are due in the currency specified in Seller’s Proposal, Acknowledgment and/or invoice. Interest shall be due from Buyer to Seller on overdue accounts at the maximum rate allowed by law. When partial shipments are made, the goods will be invoiced as shipped and each month’s invoices will be treated as a separate account and be payable accordingly. Payment for goods is due whether or not technical documentation and/or any third-party certifications are complete at the time of shipment. Seller shall be entitled to recover all reasonable attorneys’ fees and other costs incurred in the collection of overdue accounts. Seller reserves the right where doubts arise as to Buyer’s financial position or if Buyer is in default of any payment, to suspend delivery or performance of any order or any part thereof without liability or without prejudice to and without limitation of any other remedy until Buyer cures the default and payment or satisfactory security for payment has been provided. Seller shall have the option to extend the delivery date by a time at least equal to the period of suspension.
Unless otherwise specified on the face hereof, all US and international sales shall be Seller’s premises, as modified by these Terms and Conditions. Where goods are to be supplied from stock, such supply is subject to availability of stocks at the date of delivery. Partial shipments maybe made as agreed by Buyer and Seller. Stated delivery dates are approximate only and cannot be guaranteed. Seller shall have no liability for damages arising out of the failure to keep a projected delivery date, irrespective of the length of the delay. In the event Buyer is unable to accept delivery of goods when tendered, Seller may, at its option, arrange storage of the goods and Buyer shall be liable to Seller for the reasonable cost of such storage. This provision is without prejudice to any other rights, which Seller may have with respect to Buyer’s failure to take delivery of goods, which includes the right to invoice Buyer for the goods. Buyer agrees that title to the goods will transfer to Buyer upon invoicing notwithstanding Buyer’s inability to accept delivery and that Buyer assumes all risk of loss or damage to the goods from the date title passes to Buyer.
5. FORCE MAJUERE
If either party is unable by reason of Force Majeure to carry out any of its obligations under this Agreement, other than obligations to pay money, then on such party giving notice and particulars in writing to the other party within a reasonable time after the occurrence of the cause relied upon, such obligations shall be suspended. Force Majeure” shall include acts of God, laws and regulations, government action, war, civil disturbances, strikes and labor problems, delays of vendors, carriers, lightening, fire, flood, washout, storm, breakage or accident to equipment or machinery, shortage of raw materials, and any other causes that are not reasonably within the control of the party so affected. Seller shall be paid its applicable standby rate, if any, during any such Force Majeure event.
Orders placed by Buyer and accepted by Seller may be canceled only with the consent of Seller and will subject Buyer to cancellation charges as determined by Seller. All of Seller’s documents, drawings and like information shall be returned to Seller upon Buyer’s request for cancellation. No orders may be canceled subsequent to shipment.
7. TITLE AND RISK OF LOSS
Ownership and risk of loss pass to Buyer upon the earlier of (i) Seller’s delivery of the goods to the carrier, or (ii) invoicing by Seller for the goods where Buyer is unable to accept delivery on the scheduled date. Seller retains a security interest in the goods until the purchase price has been paid, and Buyer agrees to perform upon request all acts required to secure Seller’s interest. Seller accepts no responsibility for any damage, shortage or loss in transit. Seller will attempt to pack or prepare all shipments so that they will not break, rust or deteriorate in shipment, but does not guarantee against such damage. Claims for any damage, shortage or loss in transit must be made by Buyer on the carrier.
8. LIMITED WARRANTY
In the case of the purchase of new Equipment/Parts and solely for the benefit of the original user, Seller warrants, for a period of 12 months from shipment that Equipment of its own manufacture shall conform to the material and technical specifications set forth in the relevant scope of work document or purchase order as agreed to in writing by Seller and Buyer. If the Equipment fails to conform to such specifications upon inspection by Seller, Seller at its option and as Buyer’s sole remedy will either repair or replace such defective Equipment with the type originally furnished. Seller’s warranty obligations hereunder shall not apply if the non-conformity was caused by a) Buyer’s failure to properly store or maintain the Equipment or Parts; b) unauthorized modifications, repair or service of the Equipment or Parts by Buyer; c) utilization of replacement parts not manufactured by Seller; or d) use or handling of the Equipment or Parts by Buyer in a manner inconsistent with Seller’s recommendations. Further Seller’s warranty obligations under this Article 8 shall terminate if a) Buyer fails to perform its obligations under this or any other Agreement between the parties, orb) if Buyer fails to pay any charges due Seller. Any third-party warranties provided on Equipment or Parts not manufactured by Seller are assigned to Buyer, without recourse, at the time of delivery, provided such warranties are assignable. THIS ARTICLE 9 SETS FORTH BUYER’S SOLE REMEDY AND SELLER’S ONLY OBLIGATION WITH REGARD TO NON-CONFORMING EQUIPMENT, PARTS OR SERVICES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED PURSUANT TO THE PROVISIONS OF THIS ARTICLE 8, SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, AND SELLER DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Seller expressly reserves the right to change, discontinue or modify the design and manufacture of its products without obligation to furnish, retrofit or install goods previously or subsequently sold.
10. REASONABLE ATTORNEY=S FEES
In the event suit or other proceedings shall be brought for the recovery of the purchase price, or any unpaid balance, or the breach by BUYER of any terms herein contained, BUYER shall pay to SELLER, in addition to any damages provided by law, reasonable attorney=s fees and any costs of collection.
SELLER, its officers, directors, shareholders or properties, shall not be responsible, obligated, or liable for any injury by damage resulting from an application or use of its products, either singly or in combination with other products, arising out of acceptance of BUYER=S orders. SELLER shall have no liability for errors in weight or quantity delivered unless claim is made by BUYER with in five (5) days after receipt of shipment and accompanied by original transportation bill signed by carrier noting that carrier received the goods from SELLER in the condition claimed, if such timely claim is made by BUYER. SELLER may either ship the quantity necessary to make good the deficiency or, at SELLER=S option, credit BUYER with the invoice price of the deficiency.
12. REMEDIES AND LIMITATION OF LIABILITY
SELLER shall not be liable for incidental or consequential losses, damages, or expenses arising directly or indirectly from the sale, handling or use of the goods or from any other cause relating thereto. SELLER=S liability in any other case, including for claims of breaches of warranty or negligence is exclusively limited, at SELLER=S option, to the replacement of goods not complying with their agreement, the repayment of, or crediting BUYER with, an amount equal to the purchase price of such goods, or repairing or arranging for repair of the goods. If SELLER requests the return of the goods, the goods will be redelivered to SELLER in accordance with SELLER=S instructions. The remedies contained herein constitute the sole recourse of BUYER against SELLER for breach of any use of the goods delivered hereunder. In no event shall the liability of SELLER exceed the purchase price of the specific item to which such warranty related.
13. CHOICE OF LAW
This agreement and matters connected with the performance thereof shall be construed in accordance with, and governed by the law of the State of Texas as if it were executed and performed entirely in Houston, Harris County, Texas. Venue shall be in a Court which is located in Harris County.