Brochure

176
All sales are made on our STANDARD TERMS AND CONDITIONS OF SALE in effect at the time a customer’s order is accepted. The current Terms and Conditions are set forth below:
STANDARD TERMS AND CONDITIONS OF SALE (September 2, 2009)
These Terms and Conditions, the attendant quotation or acknowledgment and all documents incorporated by specic reference therein, will be the complete and exclusive state-
ment of the terms of the agreement governing the sale of goods (“Goods”) by Emerson Power Transmission Corporation and its divisions and subsidiaries (“Seller”) to Customer
(“Buyer”). Buyer’s acceptance of the Goods will manifest Buyer’s assent to these Terms and Conditions. If these Terms and Conditions differ in any way from the terms and
conditions of Buyer’s order, or other documentation, this document will be construed as a counteroffer and will not be deemed an acceptance of Buyer’s terms and conditions
which conict herewith.
1. PRICES: Unless otherwise specied in writing by Seller, Seller’s price for the goods
shall remain in effect for thirty (30) days after the date of Seller’s quotation or acknowl-
edgment of Buyer’s order for the Goods, whichever occurs rst, provided an uncon-
ditional, complete authorization for the immediate shipment of the Goods 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 Good to Seller’s price for the Goods at the time of shipment.
2.
T
AXES: Any tax or governmental charge or increase in same hereafter becoming
effective increasing the cost to Seller of producing, selling or delivering the Goods or of
procuring material used therein, and any tax now in effect or increase in same payable
by the Seller because of the manufacture, sale or delivery of the Goods, may at Seller’s
option, be added to the price.
3. TERMS OF PAYMENT: Subject to the approval of Seller’s Credit Department, terms
are net thirty (30) days from date of Seller’s invoice in U.S. currency. 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 shall have the right, among other remedies, either
to terminate the 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. Buyer
shall be liable for all expenses, including attorneys’ fees, relating to the collection of
past due amounts.
4.
SHIPMENT
AND DELIVERY: Shipments are made F.O.B. Seller’s shipping point.
Any claims for shortages or damages suffered in transit shall be submitted by the Buyer
directly to the carrier. While Seller will use all reasonable commercial efforts to maintain
the delivery date acknowledged or quoted by Seller, all shipping dates are approximate.
Seller reserves the right to make partial shipments and to segregate “specials” and
made-to-order Goods from normal stock Goods. Seller shall not be bound to tender
delivery of any Goods for which Buyer has not provided shipping instructions.
5. QUANTITY: Buyer agrees to accept overruns of up to ten percent (10%) of the order
on “made-to-order” Goods, including parts. Any such additional items shall be priced at
the price per item charged for the specic quantity ordered.
6.
LIMITED W
ARRANTY: Subject to the limitations of Section 7, Seller warrants that
the Goods will be free from defects in material and workmanship under normal use,
service and maintenance for a period of one year (unless otherwise specied by Seller
in writing) from the date of shipment of the Goods by Seller. THIS IS THE SOLE AND
EXCLUSIVE WARRANTY GIVEN BY SELLER WITH RESPECT TO THE GOODS
AND IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITH
-
OUT LIMITATION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PUR-
POSE WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO
SELLER IN SPECIFICA
TIONS, DRAWINGS OR OTHERWISE, AND WHETHER OR
NOT SELLER’S PRODUCTS ARE SPECIFICALLY DESIGNED AND/OR MANUFAC-
TURED BY SELLER FOR BUYER’S USE OR PURPOSE.
This warranty does not extend to any losses or damages due to misuse, accident,
abuse, neglect, normal wear and tear, unauthorized modication or alteration, use be-
yond rated capacity, or improper installation, maintenance or application. To the extent
that Buyer or its agents has supplied specications, information, representation of op-
erating conditions or other data to Seller in the selection or design of the Goods and the
preparation of Seller’s quotation, and in the event that actual operating conditions or
other conditions differ from those represented by Buyer, any warranties or other provi-
sions contained herein which are affected by such conditions shall be null and void. If
within thirty (30) days after Buyer’s discovery of any warranty defects within the war-
ranty period, Buyer noties Seller thereof in writing, Seller shall, at its option, repair or
replace F.O.B. point of manufacture, or refund the purchase price for, that portion of the
goods found by Seller to be defective. Failure by Buyer to give such written notice within
the applicable time period shall be deemed an absolute and unconditional waiver of
Buyer’s claim for such defects. Goods repaired or replaced during the warranty period
shall be covered by the foregoing warranty for the remainder of the original warranty
period or ninety (90) days, whichever is longer. 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, either alone or in combination with other products/
components.
SECTIONS 6 AND 7 APPLY TO ANY ENTITY OR PERSON WHO MAY BUY, AC-
QUIRE OR USE SELLER’S GOODS, INCLUDING ANY ENTITY OR PERSON WHO
BUYS THE GOODS FROM SELLER’S DISTRIBUTOR AND SUCH ENTITY OR PER-
SON SHALL BE BOUND BY THE LIMITATIONS THEREIN.
7.
LIMIT
ATION OF REMEDY AND LIABILITY: THE SOLE AND EXCLUSIVE REMEDY
FOR BREACH OF ANY WARRANTY HEREUNDER (OTHER THAN THE WARRAN-
TY PROVIDED UNDER SECTION 13) SHALL BE LIMITED TO REPAIR, REPLACE-
MENT OR REFUND OF THE PURCHASE PRICE UNDER SECTION 6. SELLER
SHALL
NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE
AND 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 LIABIL-
ITY TO BUYER AND/OR ITS CUSTOMERS EXCEED THE PRICE TO BUYER OF
THE SPECIFIC GOODS PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR
CAUSE OF ACTION. BUYER AGREES THAT IN NO EVENT SHALL SELLER’S LI-
ABILITY TO BUYER AND/OR ITS CUSTOMERS EXTEND TO INCLUDE INCIDEN-
TAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. THE TERM “CONSEQUENTIAL
DAMAGES” SHALL INCLUDE, BUT NOT BE LIMITED TO, LOSS OF ANTICIPATED
PROFITS, LOSS OF USE, LOSS OF REVENUE, COST OF CAPITAL AND DAMAGE
OR LOSS OF OTHER PROPERTY OR EQUIPMENT.
It is expressly understood that any technical advice furnished by Seller with respect
to the use of the Goods is given without charge, and Seller assumes no obligation or
liability for the advice given, or results obtained, all such advice being given and ac-
cepted at Buyer’s risk.
GOODS AND/OR SERVICES SOLD HEREUNDER ARE NOT FOR USE IN ANY NU-
CLEAR AND RELATED APPLICATIONS. Buyer accepts goods and/or services with
the foregoing understanding, agrees to communicate the same in writing to any subse-
quent purchaser or users and to defend, indemnify and hold harmless Seller from any
claims, losses, suits, judgments and damages, including incidental and consequential
damages, arising from such use, whether the cause of action be based in tort, contract
or otherwise, including allegations that the Seller's liability is based on negligence or
strict liability.
8.
EXCUSE
OF PERFORMANCE: Seller shall not be liable for delays in performance
or for non-performance due to acts of God, acts of Buyer, war, riot, re, ood, other
severe weather, sabotage, or epidemics; strikes or labor disturbances; governmental
requests, restrictions, laws, regulations, orders or actions; unavailability of or delays
in transportation; default of suppliers; or unforeseen circumstances or any events or
causes beyond Seller’s reasonable control. Deliveries may be suspended for an ap-
propriate period of time as a result of the foregoing. If Seller determines that its ability
to supply the total demand for the Goods, or to obtain material used directly or indi-
rectly in the manufacture of the Goods, is hindered, limited or made impracticable due
to causes addressed in this Section 8, Seller may allocate its available supply of the
Goods or such material (without obligation to acquire other supplies of any such Goods
or material) among itself and its purchasers on such basis as Seller determines to be
equitable without liability for any failure of performance which may result therefrom.
Deliveries
suspended or not made by reason of this section may be canceled by Seller
upon notice to Buyer without liability, but the balance of the agreement shall otherwise
remain unaffected.
9.
CANCELLA
TIONS AND DELAYS: The Buyer may cancel orders only upon written
notice and upon payment to Seller of cancellation charges which include, among other
things, all costs and expenses incurred and commitments made by the Seller and a
reasonable prot thereon. Any request by Buyer to extend the delivery schedule must
be agreed to in writing by the Seller. If agreement cannot be reached, Seller may deliver
product to the last known ship to address and invoice the Buyer upon completion of the
product or prior delivery date, whichever is later.
10. CHANGES: Buyer may request changes or additions to the Goods consistent with
Seller’s specications and criteria. In the event such changes or additions are accepted
by Seller, Seller may revise the price and delivery schedule. Seller reserves the right to
change designs and specications for the Goods without prior notice to Buyer, except
with respect to Goods being made-to-order for Buyer.
11.
T
OOLING: Tool, die, and pattern charges, if any, are in addition to the price of the
Goods and are due and payable upon completion of the tooling. All such tools, dies and
patterns shall be and remain the property of Seller. Charges for tools, dies, and patterns
do not convey to Buyer, title, ownership interests in, or rights to possession or removal,
nor prevent their use by Seller for other purchasers, except as otherwise expressly
provided by Seller and Buyer in writing with reference to this provision.
12. ASSIGNMENT: Buyer shall not assign its rights or delegate its duties hereunder
or any interest therein or any rights hereunder without the prior written consent of the
Seller, and any such assignment, without such consent, shall be void.
13.
P
ATENTS AND COPYRIGHTS: Subject to Section 7, Seller warrants that the
Goods sold, except as are made specically for Buyer according to Buyer’s specica
-
tions, do not infringe any valid U.S. patent or copyright in existence as of the date of
delivery
. 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, that Buyer
cooperate fully with Seller and permit Seller to control completely the defense or com-
promise of any such allegation of infringement. Seller’s warranty as to use only applies
to infringements arising solely out of the inherent operation (i) of such Goods, or (ii) of
any combination of Goods in a system designed by Seller. In the event such Goods,
singularly or in combination, are held to infringe a U.S. patent or copyright in such suit,
and the use of such Goods is enjoined, or in the case of a compromise by Seller, Seller
shall have the right, at its option and expense, to procure for Buyer the right to continue
using such Goods, or replace them with non-infringing Goods; or modify same to be-
come non-infringing; or grant Buyer a credit for the depreciated value of such Goods
and accept return of them.
14.
MISCELLANEOUS
: These terms and conditions set forth the entire understanding
and agreement between Seller and Buyer, and supersede all other communications,
negotiations and prior oral or written statements regarding the subject matter of these
terms and conditions. No change, modication, rescission, discharge, abandonment,
or waiver of these terms and conditions of Sale shall be binding upon the Seller unless
made in writing and signed on its behalf by an ofcer of the Seller. No conditions, usage
or trade, course of dealing or performance, understanding or agreement purporting to
modify, vary, explain, or supplement these Terms and Conditions shall be binding un-
less hereafter made in writing and signed by the party to be bound, and no modication
shall be af
fected by the acceptance of purchase orders or shipping instruction forms
containing terms at variance with or in addition to those set forth herein. Any such
modications or additional terms are specically rejected by Seller. No waiver by Seller
with respect to any breach or default or any right or remedy and no course of dealing,
shall be deemed to constitute a continuing waiver of any other breach or default or of
any other right or remedy, unless such waiver be expressed in writing and signed by
the party to be bound. Seller is not responsible for typographical or clerical errors made
in any quotation, orders or publications. All such errors are subject to correction. The
validity, performance, and all other matters relating to the interpretation and effect of
this contract shall be governed by the law of the state of New York. The United Nations
Convention on the International Sale of Goods shall not apply to
any transaction hereunder.