a. Any sale of products or services by Electric Maintenance Service Co., Inc. (EMS) is governed exclusively by these Standard Terms and Conditions of Sale (Standard Terms) and shall supersede any inconsistent or additional terms on Buyer’s purchase order or any other documents. These standard Terms constitute the final, complete and exclusive agreement between EMS and the buyer as to the subject matter hereof. EMS hereby objects to any inconsistent or additional terms. This agreement may be amended only in writing or signed by an authorized representative of EMS.
b. Any order placed with EMS must be in the form of a written purchase order or letter from Buyer (Order) and shall set forth all information necessary for EMS to fill the Order, if accepted. All proposals, questions or similar communications from EMS will be considered invitations to Buyer to submit an Order. A binding sales contract will result only when EMS accepts Buyer’s Order, at EMS’s office in Bridgeport CT or other such place as designated by EMS. EMS reserves the right to bill any Order at a minimum of $20, plus any additional charges provided for herein.
c. All products shall be packaged for domestic shipment in accordance with EMS’s standard specifications. If special packaging is required, it must be clearly requested in Buyer’s Order. The price for any special packaging shall be billed to Buyer.
a. EMS warrants that each new and unused product sold by EMS shall be free from defects in material workmanship for a period of (1) year from the date the products are purchased. Within the applicable warrantee period, EMS will, at its sole discretion, either repair, replace or return the purchase price paid to EMS for any product, part or service found by EMS to be defective: provided that the subject product is used under normal conditions for which it was designed and installed, operated and maintained in accordance with EMS’ instructions and (subject always to such instructions) in accordance with generally accepted industrial practices.
b. EMS’ warrantee obligation shall be conditioned upon receipt by EMS of written device of any alleged defects within sixty (60) days after discovery. EMS will not be responsible or accept invoices for unauthorized repairs to any products, even if defective, EMS shall not be responsible for any products which have been altered, abused, misused or improperly installed or repaired, or for any loss, damage, defect, claim or non-performance resulting from or attributable in Buyer’s specifications.
c. Where Buyer requests that EMS supply non-stock or component parts manufactured by a third party, EMS will, to the extent of the permitted, pass through in Buyer any warranty of the manufacturer. As to such items, Buyer’s sole remedy for breach of warrantee shall be the remedy offered by and available from the manufacturer. EMS shall have no liability, whether in contract, tort or otherwise, for such products.
d. EMS does not guarantee production rates or the quality of goods made using EMS’ products or services, nor shall any longer warranty periods apply, except as agreed in writing signed by an authorized EMS representative.
e. EMS’ warrantee herein is in lieu of and excludes all other warrantees of EMS and all, parent or affiliated companies of EMS, all other warrantees, whether express, implied or statutory, including but not limited to, any implied warrantees of merchantability and/or fitness of a particular purpose or use, are hereby excluded.
f. Under no circumstances shall EMS, or any parent or affiliated company of EMS, be liable to Buyer or any entity for any special, indirect or consequential damages, whether arising form breach of contract, tort, negligence, misrepresentation, strict liability or otherwise, including for lost profits, impairment of goods, work stoppage or otherwise, in any way arising out of or related to goods or services supplied by EMS or any transaction to which these standard terms apply. The maximum liability of EMS, including, but not limited to, with respect to the design, manufacture, sale, delivery, resale, inspection, assembly, installation, testing, repair, replacement, maintenance or use of any product or the performance of any service, shall not exceed the purchase price paid to EMS for the effective product or service.
a. All drawings, tables, graphs and the like submitted by EMS or contained in EMS’ publications or website shall be regarded as approximations only. Weights, measurements, capacities and all other particulars of products or services offered by EMS are approximate only. EMS is not responsible for such approximations, including, in particular, based on data supplied by Buyer.
4) Infringement: EMS’ liability for infringement (and the liability of any parent of affiliated company of EMS) is limited to EMS’ defense of any suit or proceeding brought against Buyer based on a claim that products sold hereunder, when employed in the manner intended by EMS, constitutes an infringement of any patent of the United States, if Buyer’s use of the products in the manner intended by EMS is finally enjoined in such action., EMS shall, at its option, procure for Buyer the right to continue using the products, replace the same with non-infringing products, modify the products so that they become non-infringing equivalent products, or refund the purchase price (less allowance for use, damage or obsolescence). EMS makes no warranty against patent infringement resulting from portions of the products made to Buyer’s specifications or the use of product in combination with any other products or in the practice of any other process, and if a claim, suit or action is brought against EMS or any parent or affiliate of EMS, Buyer shall defend, indemnify and save EMS (and its parent/affiliate) harmless from and against any and all claims, losses or damages arising wherefrom.
5) Shipment, Force Majeure, Prices and Error:
a. Shipment/Delivery dates are approximations only. EMS shall not be liable to pay any penalty or damages, including consequential damages, for any delay in shipment.
b. In no event shall EMS be liable for any damages, including consequential damages, caused by delays or non-performance resulting or related to force majeure or other causes beyond EMS’ reasonable control, including, but not limited to, war, blockade, civil disturbances, strikes and lockouts, labor shortages, fire and other casualties, acts of nature, accidents and governmental acts (including regulations concerning export and import licensing and currency exchange). In case of non-delivery, EMS’ obligation shall be limited to the refund of any advance payment received from Buyer.
c. All claims for loss of or damage to products, whether concealed or obvious, must be made, in writing, to the carrier and to EMS by Buyer as soon as possible after receipt of shipment, and in no case beyond 24 hours of shipment or such claims shall be deemed waived. EMS will render reasonable assurance in providing information necessary for Buyer to process such damage claims with the carrier or any insurance company.
d. EMS’ quoted prices are firm for fifteen (15) days from the date of EMS’ written proposal. Thereafter, the applicable prices are those in effect at the time Buyer’s Order is placed with EMS. EMS will notify Buyer of any price changes for incorporation into a revised Order prior to acceptance by EMS. Pricing based on volume discounts is subject to adjustment by EMS if actual shipping volumes do not meet minimum volume requirements of agreement. Clerical errors in any element of proposal, purchase order, invoice or contract are subject to correction by EMS.
e. (1) Buyer agrees to accept delivery within fifteen (15) days following the anticipated date of delivery. If Buyer refuses to take delivery within the fifteen (15) day period, EMS reserves the right to charge Buyer for storage charges plus interest. (2) All shipments are F.O.B. EMS’ (or its suppliers) manufacturing plant or warehouse. EMS will, at Buyer’s expense, arrange for the transportation of the products from the manufacturing plant or warehouse designated by EMS. Buyer is responsible to timely procure all necessary export and import licenses and all permits required for the consummation of the transaction.
6) Terms of Payment:
a. All payments are due within thirty (30) days of EMS’ invoice. EMS reserves the right to require payment in advance, or satisfactory security, for any shipment or sale. EMS may cancel any shipment or Order for any Buyer which has failed to make payment or comply with any other provision of these Standard Terms. EMS reserves the right to seek any other remedy available at law or equity. Payment shall be made at the agreed time, to the place specified, and in the currency indicated on EMS’ invoice. Buyer’s failure to pay at the agreed time and place constitutes a waiver of Buyer’s right to demand EMS performance under the contract.
b. When an account becomes past due according to its payment terms, Buyer shall pay interest on the balance due, at the greater of 1.50% per month (18% per annum) or the maximum permitted by law, until paid in full.
c. If delivery and/or payment in installments are accepted by EMS, Buyer’s failure to pay any installment when due shall give EMS the right to suspend work or delivery until such payment is made. In the event that any such default by Buyer continues more than fifteen (15) days, EMS shall then cancel the contract by written notice to Buyer. Upon cancellation of installment contract, all items already delivered and paid for in full by Buyer will be transferred to Buyer as is, where is, without warranty.
d. All duties, tariffs, fees, costs and other charges connected with shipment, insurance, exportation and importation of the products are the responsibility of the Buyer, and, if paid by EMS such expenses may be recovered by EMS from Buyer, and Buyer shall indemnify EMS against claims for the same. Buyer is responsible for all taxes applicable or related to this transaction, including all sales, use and excise taxes.
7) Risk of Loss: Risk of loss and/or damage to the products shall pass to Buyer upon delivery thereof to Buyer or its representative, or to a carrier for shipment to Buyer for its designated customer, as the case may be, at the manufacturing plant or warehouse of EMS or its supplier. Buyer is responsible to obtain insurance coverage on all shipments of products supplied by EMS.
8) Returns/Cancellation Charges: Buyer shall not return any product to EMS without the written consent of, and upon terms agreed to, by EMS. If Buyer refuses to accept delivery, or improperly revokes acceptance of products, Buyer shall be responsible for EMS’ cancellation charges and expenses. Before returning products, a Return Goods Authorization (R.G.A.) number and form must be obtained from EMS. Products returned without an R.G.A. number clearly marked on the outside of the shipping carton may be returned. Except for approved warranty returns, EMS will only accept for return and credit new, unused, current stock items, in the original packaging and undamaged. Buyer shall be responsible for all freight charges, import/export charges, duties, tariffs, taxes, insurance and risk of loss/damage regarding return shipment to EMS.
9) Security Interest: To secure any indebtedness due to and owing from Buyer from time to time, Buyer hereby grants to EMS and EMS hereby reserves a continuing purchase money security interest in all products heretofore and hereafter sold and delivered to Buyer by EMS and all related parts, components and accessories therefore and all proceeds arising from the sale or other dissolution of the foregoing including but not limited to cash, accounts, contract rights, accounts receivable, instruments and chattel paper. Buyer shall at no time grant any security interest that conflicts with that granted to EMS herein. Buyer shall cooperate with EMS and hereby appoint EMS as its attorney-in-fact to execute and file, on Buyer’s behalf any documents necessary to evidence and protect EMS’ security interests.
10) Governing Law, Forum and Jury Waiver: These Standard Terms and the relationship of the parties shall be governed by the internal laws of the State of Connecticut, USA without regard to its choice of law rules. For all claims or disputes arising out of or relating to the sale of products or services by EMS and/or the relationship of Buyer and EMS, Buyer shall file any and all lawsuits or claims exclusively in the state or federal courts located in Fairfield County Connecticut. Buyer hereby submits to the personal jurisdiction of said courts and waives any claim of improper or inconvenient venue. To the fullest extent permitted by law, Buyer hereby agrees to waive the right to trial by jury for all claims or disputes arising out of or relating to the sale of products or services by EMS and/or the relationship of Buyer and EMS. The parties agree that the U.N. Convention of Contracts for the international Sale of Goods shall not apply to their relationship or the sale of products by EMS.
a. Failure on the part of EMS to enforce any of its rights derived from this contract shall never be construed as a waiver of any of EMS’ rights.
b. The validity of one or more of the claims herein shall not affect the validity of the other clauses, which for this purpose are considered severable.
c. Any use by Buyer of any EMS trademark must be approved by EMS in writing.
d. Buyer may not delegate in performance or assign its rights under this Agreement except upon the express written consent of EMS. In any case, the Standard Terms shall be binding upon the successors and legal representatives of Buyer.
e. Buyer shall comply with all applicable laws and regulations regarding the use, import and export of the products sold hereunder. The products and services to be sold hereunder are not intended for use in any nuclear, chemical or weapons production or environmental damage. If Buyer uses the products or services for such or other permissible purpose, it shall indemnify, hold harmless and defend EMS, all parental and affiliated companies of EMS, from and against all related claims and damages.
f. All rights and remedies available to EMS under the Uniform Commercial Code and other applicable laws are reserved to EMS as remedies in the event of Buyer’s default.