Terms & Conditions
ACKNOWLEDGEMENT AND ACCEPTANCE OF ANY ORDER BY Seller 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.
1. Definitions. (a) “Buyer” means the individual or entity identified on Buyer’s purchase order, or, if different, on Seller’s quotation, order acknowledgement or confirmation. (b) “Seller” refers to Electro Mechanical Industries, Inc. (c) “Product” means (i) any product designed or manufactured by or on behalf of Seller, or (ii) any third-party manufacturer’s product offered for sale by Seller.
2. Terms. Seller’s Acceptance. Unless Seller expressly agrees in writing, these Terms and Conditions will govern all purchase orders and quotations. Seller specifically rejects, and Buyer disclaims, all pre-printed provisions in Buyer’s purchase order and any other Buyer forms or documents, including any terms and conditions on Buyer’s internet site. All orders are accepted and all sales are made subject only to the terms and conditions set forth above, and this statement is intended as a final, complete and exclusive statement of the parties’ agreement. No statements, representations, agreements or changes of any kind or any conflicting terms or conditions incorporated in any writing by purchaser to Seller are binding on Seller unless specifically agreed to in writing duly signed by its authorized representative. Any and all prior statements, representations, and agreements not incorporated herein are excluded and superseded hereby.
Seller’s failure to object to any term or condition in any communication from Buyer will not be construed as agreement to such term or condition, nor will it be deemed a waiver of these Terms and Conditions. Seller reserves the right, in its sole discretion, not to accept any purchase order, including any purchase order issued in connection with a quotation provided by Seller. In the event the Buyer and Seller have executed a definitive contract relating to the Products purchased (a “Definitive Contract”), then the terms and conditions set forth in such contract shall supersede any conflicting terms and conditions set forth herein for as long as such contract is in effect and not terminated or expired.
3. Governmental Rules. The rules and regulations of any local, state, federal or other government or governmental authority relating to procurement will not apply to any sales of Products by Seller to Buyer.
4. Quotations and Prices. After Seller’s acceptance of an order, purchaser’s modification shall not be effective unless accepted by Seller in writing. Except as otherwise specifically provided in Seller’s quotation or order acknowledgement or confirmation, the prices of Products will be Seller’s published list prices in effect at the time of Seller’s quotation or Seller’s acknowledgement or confirmation of Buyer’s purchase order and are not subject to trade or other discounts. Seller’s stenographic, clerical or other errors are subject to correction by Seller. Seller may change its published list prices at any time without notice. Unless stated otherwise in Seller’s quotation or order acknowledgement or confirmation, prices do not include any costs related to insurance, special packaging or insulation, source inspection, testing or similar charges, or related to service calls or service work performed by Seller, all of which must be paid by Buyer.
5. Terms of Payment. Unless Seller’s Accounting department otherwise agrees in writing, Payment terms are NET thirty (30) days from the date of Supplier’s invoice, unless otherwise specified and approved in advance in writing from the EMI Credit Department. Invoices will be rendered upon delivery of each order to Purchaser. All payments shall be made to the “remit to” location as stated on the Supplier’s invoice. Supplier reserves the right to invoice, and Purchaser agrees to pay for, any or all Product ready for shipment, together with expenses, costs, and losses associated therewith, whenever shipment is delayed pursuant to Purchaser’s written instructions or for other reasons beyond Supplier’s control. Buyer will pay interest on any past due invoices at a rate of 18% per annum, simple interest on the unpaid balance, or, if lower, the maximum rate permitted under applicable law. Buyer will pay all costs, including reasonable attorneys’ fees, court costs and collection agency fees that Seller incurs in the enforcement of this agreement against Buyer. Seller may, in its sole discretion, withhold shipment of orders if Buyer’s account is in arrears or if the financial condition of Buyer at any time becomes unsatisfactory to Seller. Buyer acknowledges that Seller retains a security interest in all Products, and all proceeds and products thereof, until Buyer renders payment in full, and Buyer hereby authorizes Seller to file any documents necessary to perfect Seller’s security interest.
Any tax or other charge imposed by law on the sale of goods or the performance of services shall be paid by the Purchaser, unless the law specifically provides that such payment must be absorbed by Supplier. Purchaser shall inform the Supplier, in advance in writing, of such taxes or other charges imposed by state, municipal, or other law that are to be paid by the Supplier.
6.Shipping. Seller will pack, package and crate Products in accordance with its standard commercial practices. Seller may make partial shipments and submit invoices for such partial shipments in accordance with the payment terms set forth in Section 5 above. Seller may ship overages or underages of weight, length, size and/or quantity in accordance with Seller’s standard practices.
7. Taxes. The amount of any present or future sales, use, excise or similar taxes, duties, tariffs or assessments, applicable to the ordered products shall be added to Seller price and paid by the Purchaser, unless the Buyer timely provides with a valid tax exemption certificate acceptable to Seller.
8. Delivery. Unless otherwise specified on the face hereof, all US and international sales shall be F.O.B. Seller’s premises as modified by these Terms and Conditions. Where Products 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. Seller will make commercially reasonable efforts to ship the Products by the estimated shipping date, but will not be liable for any damages, loss or expense (direct, incidental, indirect, economic, consequential or otherwise) arising from a delay in shipment.
9. Acceptance of Products. The Products provided by Seller are deemed accepted by Buyer upon delivery.
10. Risk of Loss. Title, Ownership and risk of loss pass to Buyer upon the earlier of (i) Seller’s delivery of the Products to the carrier, or (ii) invoicing by Seller for the Products where Buyer is unable to accept delivery on the scheduled date. Seller retains a security interest in the Products 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.
11. Inspection Following Delivery Buyer agrees to inspect the Products promptly following receipt, and to report in writing to Seller any shortage, damage or visually detectable discrepancy within 2 days following receipt of delivery. All claims for damage, visually detectable discrepancies and shortages not reported to Seller in writing within such 2-day period are waived by Buyer.
12. Delay in Delivery. If Buyer for any reason delays delivery of Seller’s completed Products, Buyer shall be obligated reimburse Seller for any and all of Seller’s costs of storage incurred by Seller after the date that Seller is prepared to deliver the Products. Seller may also invoice Buyer for the completed Products, and Buyer must pay for the Products in accordance with the terms of the original sale.
13. Warranties. Seller warrants the Products to Buyer in accordance with the terms, conditions and limitations of Seller’s Limited Warranty for such Products as in effect as of the date of shipment. Unless otherwise provided to Buyer in writing, Seller’s Limited Warranty for the Products is located on Seller’s website. Nothing in these Terms and Conditions or in Seller’s Limited Warranty shall be construed to provide Buyer with a warranty for any system implementation using the Products. Warranties for system implementations or projects will be available only on terms set forth in a mutually agreed statement of work. Otherwise, all system projects, implementations and designs are the sole responsibility of Buyer. SELLER SPECIFICALLY EXCLUDES ANY AND ALL OTHER WARRANTIES, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
14. Force Majeure. If Seller is unable by reason of Force Majeure to carry out any of its obligations under this instrument, other than obligations to pay money, then on Seller giving notice and particulars in writing to Buyer 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, epidemic, 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. During any such Force Majeure event, Seller will not be required to make any allocation of production, shipments or deliveries, notwithstanding any applicable laws or regulations that may provide otherwise.
15. Patents. Seller shall pay costs and damages finally awarded in any suit against Buyer or its vendees to the extent based upon a finding that the design or construction of the Products as furnished infringes a United States patent or third party intellectual property claims (except infringement occurring as a result of incorporating a design or modification at Buyer’s request) or the combination with Seller’s Products and Buyer’s Products, provided that Buyer promptly notifies Seller of any charge of infringement, and Seller is given the right at its expense to settle such charge and to defend or control the defense of any suit based upon such charge. As a condition to Seller’s obligation to indemnify Buyer, Buyer must (i) notify Seller in writing within 10 days after Buyer knows a claim has been asserted against Buyer, (ii) grant to Seller complete control over the defense of the claim and (iii) provide to Seller all available documents and information regarding the claim. If the court finds that the Products are infringing, or if Seller believes that such a determination is possible, Seller may, in its sole discretion and at its expense, (w) replace the Products with non-infringing products, (x) procure on Buyer’s behalf a license for the continued use of the Products, (y) modify the Products to the extent necessary to cure any problems of infringement or (z) refund the purchase price paid for the Products that are claimed to be infringing, less a reasonable amount for depreciation, in which event Buyer will promptly discontinue using such Products. THIS ARTICLE 15 SETS FORTH SELLER’S ENTIRE LIABILITY WITH RESPECT TO PATENTS AND INTELLECTUAL PROPERTY.
16. Buyer Furnished Property. If Buyer furnishes any components, tools, dies, jigs or other property, equipment, material, or facilities to Seller in connection with the performance of this agreement, Buyer shall bear all risk of loss or damage with respect to such property, equipment, material, or facilities and shall indemnify and hold Seller harmless from and against all loss, cost, expense or liability arising in connection with its use of any such property, equipment, material, or facilities. Seller shall not be responsible for any delay in performance or nonperformance hereunder or the failure of any Product to conform to applicable specifications resulting, in whole or in part, from Seller’s use of property, equipment, material, or facilities furnished by Buyer.
17. Limitations on Liability. THE WARRANTIES IN SECTION ARE EXCLUSIVE AND ARE MADE ONLY TO BUYER. SELLER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS AND EXCLUDES ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND ANY REPRESENTATION OR WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OR PERFORMANCE. No person is authorized to give any additional warranties on Seller’s behalf or to assume for Seller any other liability, except in a writing signed by an authorized officer of Seller. SELLER’S TOTAL LIABILITY FOR ANY CLAIM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE MANUFACTURE, SALE, DELIVERY OR USE OF THE PRODUCTS WILL BE LIMITED TO PROVEN DIRECT DAMAGES, NOT TO EXCEED THE PURCHASE PRICE OF SUCH PRODUCTS. IN NO EVENT WILL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY CLAIM FOR LOSS OF ACTUAL OR ANTICIPATED REVENUES OR PROFITS. The limitations on liability in these Terms and Conditions will apply regardless of the form of action, whether in contract, tort, strict liability or otherwise, and whether damages were foreseeable. The limitations of liability in this Section 17 will survive failure of any exclusive remedies provided in these Terms and Conditions or in Seller’s Limited Warranty.
18. Remedies for Events of Default. If Buyer (i) fails to pay any amount due within 30 days of the due date, (ii) files a petition in bankruptcy or seeks relief under any bankruptcy, reorganization, insolvency, dissolution, liquidation or similar law of any jurisdiction, or (iii) becomes unable to pay or suspends payment of its debts as they become due, or if a court issues an order appointing a receiver, custodian or administrator over all or part of Buyer’s assets, Seller may terminate any outstanding purchase order. In addition, without waiving any other available remedies, Seller may: (w) declare immediately due and payable all sums due and to become due under any outstanding purchase order; (x) stop manufacture of any Products for Buyer; (y) stop all shipments in progress and future shipments; and (z) repossess any Products in which Seller has a security or ownership interest in the Products, which is hereby retained by Seller.
19. Waiver of Subrogation. Each party waives (for itself and its insurance carrier) all its rights of subrogation against the other party and the other party’s employees, agents, suppliers and subcontractors to recover damages and losses to the extent such damages or losses are covered by insurance; provided that this provision will have no effect to the extent that it invalidates or otherwise limits the insurance coverage of a party.
20. Specifications. Seller may at any time without notice to Buyer change its Product specifications and manufacturing practices; provided that such changes do not materially impair the performance of the Products. Seller will exclusively own all materials and information provided by Seller to Buyer, including, without limitation, specifications, drawings, engineering data and technical designs.
21. Cancellation. Unless otherwise expressly agreed in writing by Seller, all sales are final. No returns will be accepted by Seller without a written authorization to return materials signed by Seller. After acceptance, order cannot be cancelled by Buyer without Seller written consent and then only upon terms that will adequately compensate Seller for its lost profits and for all of its costs and expenses applicable to the cancelled order.
22. License. Buyer shall acquire herein any right, title or interest in any set-up, design information, fitting-up, drawings, tooling, or invention or other intellectual property resulting therefrom, which remain the sole property of Seller. Neither this instrument nor the purchase of any Products hereunder shall be interpreted to provide Buyer or its customers any license under any patent or other proprietary rights of Seller, except the right to use such Products for the purposes for which they are sold.
23. Laws. Export/Import Compliance. Seller’s Products, including any software, documentation, and related technical data, may be subject to US export control laws and regulations, including the Export Administration Regulations and the International Traffic in Arms Regulations. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by Buyer. Buyer assumes all responsibility for shipments of Products requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Products. Buyer agrees to not directly or indirectly export or divert any Products and other related technology or technical documentation to any third party or country where such export or transmission is restricted or prohibited. Buyer agrees full responsibility to or Buyer agrees that this Order is subject to all applicable U.S. government laws and regulations relating to export including, but not limited to, the US Department of Commerce Export Administration Regulations and all administrative acts of the U.S. Government thereunder. In the event that Buyer exports any Products from the United States, or re-exports it from a foreign destination, Buyer agrees to ensure that the distribution and export/re-export or import of the Products is in compliance with all laws, regulations, orders or other restrictions of the US Export Administration Regulations and the appropriate foreign government. Buyer further agrees that neither Buyer nor any of its subsidiaries will export/re-export any Products, directly or indirectly, to any country for which the US government or any agency thereof of the foreign government from which it is shipping requires an export license, or other governmental approval, without first obtaining such license, approval or letter, obtain any license to export, re-export, or import as may be required. To the extent Buyer provides personally identifiable information to Seller, Buyer represents and warrants that it has taken all steps legally required under applicable data protection, privacy or related laws, including but not limited to providing notice and/or obtaining individual consent, where legally required, in order to disclose, transfer or otherwise provide such personally identifiable information to Seller. Buyer shall neither directly nor indirectly pay or offer, promise, give, or authorize to pay money or anything of value to any employee or official of a government or instrumentality or department thereof, to any political party or candidate for political office, to any employees or officials of public international organizations, or to any other person with the knowledge or belief that such money or item of value will be passed on to one of the above to influence any act or decision by such person or by any governmental body for the purpose of obtaining, retaining, or directing business or to otherwise obtain an improper advantage.
24. Changes. Any other change order must be in writing and signed by duly authorized representatives of Seller and Buyer. Change orders will specify any resulting adjustments in delivery schedule or price.
25. Confidential Information. All non-public, confidential or proprietary information of Seller, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party. In addition, Buyer will not use any of Seller’s trademarks, service marks or trade names without the express written consent of Seller.
26. Assignment. The rights and obligations contained herein shall inure to and be bind upon the parties, their legal representatives, successors, and permitted assigns. Buyer may not assign all or any portion of its rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of Seller. Any attempted assignment without such consent shall be void. Seller may assign, delegate, novate or subcontract any of its rights or obligations, in whole or in part, without Buyer’s consent.
27. Waiver. Seller’s waiver of any breach of any provision contained in these Terms and Conditions will not waive any other breach by Buyer. Seller’s delay or failure to enforce its rights under these Terms and Conditions shall not be deemed a waiver of such rights.
28. Venue and Governing Law. THIS INSTRUMENT 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 AND VENUE SHALL BE IN A COURT WHICH IS LOCATED IN HARRIS COUNTY, TEXAS.
29. Relationship of the Parties. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
30. Entire Agreement. This instrument contains the entire and only agreement between the parties hereto relating to the subject matter hereof, and any representation, affirmation of fact, and course of prior dealings, promise or condition in connection, therewith, or usage of the trade not incorporated herein, shall not be binding on either party. The rights and obligations contained herein shall inure to and be bind upon the parties, their legal representatives, successors, and permitted assigns. This instrument supersedes all other written or oral agreements between the parties, except in the event of a definitive agreement signed by the parties.
31. Amendment. The parties may modify this instrument or the definitive quotation or order acknowledgement or confirmation, only by an express written agreement signed by both parties.
32. Indemnification. Buyer shall indemnify and hold Seller harmless from all expenses (including attorneys’ fees), claims, demands, suits, judgments, actions, costs, and liabilities (including without limitation those alleging Seller’s own negligence) which may arise from, relate to, or be connected with the Buyer’s possession, installation, erection, start-up, use, maintenance, operation, removal, or resale of the Products and any manuals, instructions, designs, drawings or specifications related thereto.