E & I Sales, Inc. Standard Terms & Conditions
1. General
The terms and conditions contained herein, together with any additional or different terms contained in the proposal, if any, submitted by E&I Sales Co. (“E&I”) to Purchaser (which proposal shall control over any conflicting terms herein constitute the entire agreement (the “Agreement”) between the parties with respect to the order and supersede all prior communications and agreements regarding the order. Acceptance by E&I of the order, or Purchaser’s acceptance of E&l’s proposal, is expressly limited to and conditioned upon Purchaser’s acceptance of these terms and conditions. Purchaser’s payment for or acceptance of any performance by E&I shall be deemed acceptance of these terms and conditions. These terms and conditions may not be changed or superseded by any different or additional terms and conditions proposed by Purchaser, including but not limited to terms contained within a purchase order, work, request pre-printed form or other similar type of documents which terms E&I hereby object. As is used herein, the following terms shall be defined as provided below:
(a) “Equipment” means all the products, equipment, parts and accessories sold, and all Software licensed, to Purchaser by E&I under the order
(b) “Software” means all software and software documentation, if any, licensed to Purchaser by E&I under the order
(c) “Services” means all labor, supervisory, technical and engineering, installation, repair, consulting or other services provi, by E&I under the order.
(d) “Purchaser” shall mean the initial end user of the Equipment and Services.
2. Price
(a) Unless otherwise specified in writing all proposals expire thirty (30) days from the date thereof
(b) Services prices are based on normal business hours (8 a.m. to 5 p.m. Monday through Friday). Overtime and Saturday hours will be billed at one and one-half (1 1/2) times the hourly rate; Sunday hours will be billed at two (2) times the hourly rate; and holiday hours will be billed at three (3) times the hourly rate. If a rate sheet is attached hereto, the applicable Services and Equipment rates shall be those set forth in the rate sheet.
(c) The price does not include any federal, state or local property license, privilege, sales, use, excise, gross receipts, or other like taxes which may now or hereafter be applicable. Purchaser agrees to promptly pay when due or reimburse any such taxes which E&I or its suppliers are required to pay or collect. If Purchaser is exempt from the payment of any tax or holds a direct payment permit, Purchaser shall, upon order placement, provide E&I a copy of any such exemption certificate or permit acceptable to the relevant governmental authorities
(d) The price does not include customs duties and other importation or exportation fees. These fees are to be billed separately at time of shipment.
3. Payment
(a) Unless specified to the contrary in writing by E&I, payment terms are net cash, payable without offset, in United States Dollars (30) days from the date of invoice by wire transfer to the account designated by E&I or by check. In the event Purchaser fails to pay an invoice within (30) days of the due date of payment as set forth in the preceding sentence, monthly 1.5% fee of the amount of the invoice shall be added to such invoice
(b) Based on the financial condition of Purchaser at any time prior to delivery, E&I may, in its sole discretion, require payment in advance, payment security satisfactory to E&I, or may terminate the order, whereupon E&I shall be entitled to receive reasonable cancellation charges as noted on the applicable proposal. Delays in delivery or nonconformities in any installments delivered shall not relieve Purchaser of its obligation to accept and pay for remaining installments
4. Changes
Any changes requested by Purchaser after acceptance of the order by E&I affecting the ordered scope of work must be ma in writing by Purchaser and accepted in writing by E&I, any resulting adjustments to affected provisions including price, schedule, and guarantees mutually agreed in writing prior to implementation of the change
5. Delivery
(a) All Equipment manufactured, assembled or warehoused in the continental United States is delivered FOB point of shipment. Equipment shipped from outside the continental United States is delivered F.O.B. United States port of entry. Purchaser shall be responsible for any and all demurrage or detention charges applicable to each order
(b) If the scheduled delivery of Equipment is delayed by Purchaser or by Force Majeure, E&I may move the Equipment to storage for the account of and at the risk of Purchaser whereupon it shall be deemed to be delivered.
(c) Shipping and delivery dates are contingent upon Purchaser’s timely approval and delivery of any documentation require
6. Title and Risk of Loss
Except with respect to Software (or which title shall not pass, use being licensed, to Equipment shall remain in E&I until fully paid for according to the terms of this Agreement. Notwithstanding any agreement with respect to delivery terms or payment of transportation or risk of loss or damage shall pass to Purchaser upon delivery
7. Inspection, Testing and Acceptance
(a) Any inspection by Purchaser of Equipment on E&l’s premises which is permitted under the proposal, or the order sh: be scheduled in advance and be performed during normal working hours at a time mutually agreeable to the parties
(b) If the order provides for factory acceptance testing, E&I shall notify Purchaser when E&I will conduct such testing pri, to shipment. Unless Purchaser states specific objections in writing within ten (10) days after completion of such factory acceptance test completion of the acceptance test constitutes Purchaser’s factory acceptance of the Equipment and its authorization for shipment
8. Warranties and Remedies
(a) Equipment and Services Warranty, E&I warrants that Equipment (excluding Software, which is warranted as specifie in paragraph (d) below) shall be delivered free of defects in material and workmanship and that Services shall be free of defects in workmanship. The warranty remedy period for Equipment (excluding Software, spare parts and refurbished 01 repaired parts) shall end twelve (12) months after installation or eighteen (18) months after date of shipment, whichever first occurs. The warranty remedy period for new spare parts shall end twelve (12) months after date of shipment. The warranty remedy period for refurbished or repaired parts shall end ninety (90) days after date of shipment. The warranty remedy period for Services shall end ninety (90) days after the date of completion of Services
(b) Equipment and Services Remedy. If a nonconformity to the foregoing warranty is discovered in the Equipment or Services during the applicable warranty remedy period, as specified above, normal and proper use and provided the Equipment has been properly stored, installed, operated and maintained and written notice of such nonconformity is provided to E&I promptly after such discovery and within the applicable warranty remedy period, E&I shall, at its option, (i) either repair or replace the nonconforming portion of the Equipment or re-perform the nonconforming Services or (ii) refund the portion of the price applicable to the nonconforming portion of Equipment or Services. If any portion of the Equipment or Services so repaired, repeats the non-conformity and fails to conform to the foregoing warranty, and written notice of such nonconformity is provided to E&I promptly after discovery and within the original warranty remedy period applicable to such Equipment or Services or thirty (30) days from completion of such repair, replacement or re-performance, whichever is later, E&I will repair or replace such nonconforming Equipment or re-perform the nonconforming Services. The original warranty remedy period shall not otherwise be extended
(c) Exceptions. E&I shall not be responsible for providing working access to the nonconforming Equipment, including disassembly and re-assembly of non-E&I supplied equipment, or for providing transportation to or from any repair faciliti all of which shall be at Purchaser’s risk and expense. E&I shall have no obligation hereunder with respect to any Equipment which has been (i) improperly repaired or altered by any party other than E&I, (ii) has been subjected to misL negligence or accident: (iii) has been used in a manner contrary to E&l’s instructions (iv) is comprised of materials provided by or a design specified by Purchaser; (v) has been modified by any party other than E&I; or (vi) has failed as a result of ordinary wear and tear. Equipment supplied by E&I but manufactured by others is warranted only to the extent of the manufacturer’s warranty and the remedies, if any, provided by the manufacturer will be allowed
(d) Software Warranty and Remedies. E&I warrants that, except as specified below, the Software will, when properly installed, execute in accordance with E&l’s published specifications. If a nonconformity to the foregoing warranty is discovered during the period ending one (1) year after the date of shipment and written notice of such nonconformity is provided to E&I promptly after such discovery and within that period, including a description of the nonconformity and complete information about the manner of its discovery, E&I shall correct the nonconformity by, at its option, either (i) modifying or making available to the Purchaser instructions for modifying the Software; (ii) or making available at E&l’s facility necessary corrected or replacement programs. E&I shall have no obligation with respect to any non-conformities resulting from (i) unauthorized modification of the Software or (ii) Purchaser-supplied software or interfacing. E&I does not warrant that the functions contained in the Software will operate in combinations which may be selected for use by Purchaser, or that the Software products have no errors in the nature of what is commonly categorized by the computer industry as “bugs”.(e) THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF QUALITY AND PERFORMANCE, AND NO OTHER REPRESENTATIONS OR WARRANTIES ARE PROVIDED BY E&l, WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED, AND ALL OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ACCURACY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY STATUTE OR OTHERWISE, OR FROM A COURSE OF DEALING OR USAGE OFTRADE ARE HEREBY DISCLAIMED. THE REMEDIES STATED HEREIN CONSTITUTE
9. Limitation of Liability
(a) In no event, regardless of cause, including the negligence or fault (active or passive) of any party or parties including the sole, joint or concurrent negligence of E&I, shall E&I, its suppliers or subcontractors be liable for special, indirect, incidental or consequential damages, whether in contract, warranty, tort, negligence, strict liability or otherwise, includin!but not limited to, loss of profits or revenue, loss of use of the Equipment or any associated equipment, cost of capital, cost of substitute equipment, facilities or services, downtime costs, delays, and claims of customers of Purchaser or other third parties for any damages. E&l’s liability for any claim whether in contract, warranty, tort, negligence, strict liability from this Agreement or the performance or breach thereof, or from the design, manufactured, delivery, resale, repair, replacement, installation, technical direction of installation, inspection, operation or use of any Equipment covered by or furnished under this Agreement, or from any Services rendered in connection therewith, shall in no case
exceed the purchase price allocable to the Equipment or part thereof or Services which gives rise to the claim
(b) In no event, regardless of cause, including the negligence or fault (active or passive) of any party or parties including the sole, joint or concurrent negligence of E&I, shall E&I be liable for penalties or penalty clauses of any description or fc indemnification of Purchaser or others for, collateral damages, or expenses arising out of or related to the Equipment and Services.
10. Laws and Regulations
Purchaser is responsible for compliance with any laws and regulations relating to the operation or use of the Equipment or Software. Nothing contained herein shall be construed as imposing responsibility or liability upon E&I for obtaining any permits, licenses or approvals from any agency required in connection with the supply, erection or operation of the Equipment. This Agreement shall be governed by the laws of the State of Oklahoma but excluding Oklahoma law with respect to conflicts of law. Purchaser agrees that all causes of action against E&I under this Agreement shall be brought in the State or Federal Courts located in Tulsa County, Oklahoma and Purchaser waives any objection to the forum on the grounds of venue, forum non-convenient, or any similar ground. If any provision hereof, partly or complete! shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision or portion hereof and these terms shall be construed as if such invalid or unenforceable provision or portion thereof had never existed. THE PARTIES HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
11. Software License
(a) Purchaser shall use any Software licensed to Purchaser by E&I in accordance with the following (i) the Software may be used only in conjunction with equipment specified by E&I; (ii) the Software shall be kept strictly confidential;(iii) the Software shall not be copied, reverse engineered, or modified; (iv) the Purchaser’s right to use the Software shall terminate immediately when the specified equipment is no longer used by Purchaser or when otherwise terminated as provided herein; and (v) the rights to use the Software are non-exclusive and non-transferable, except with E&l’s prior written consent.
(b) Nothing in this Agreement shall be deemed to convey to Purchaser any title to or ownership in the Software or the intellectual property contained therein in whole or in part, nor to designate the Software as “work made for hire” under the Copyright Act of 1976, nor to confer upon any person who is not a named party to this Agreement any right or remedy under or by reason of this Agreement. In the event of termination of this license, Purchaser shall immediately cease using the Software and, without retaining any copies, notes or excerpts thereof, return to E&I the Software and all copies thereof and shall remove all machine-readable Software from all of Purchaser’s storage media
12. Inventions and Information
Unless otherwise agreed in writing by E&I and Purchaser, all right, title and interest in any inventions, developments, improvements or modifications of or for Equipment and Services shall remain with E&I. Any design, manufacturing drawings or other information submitted to Purchaser remains the exclusive property of E&I. Purchaser shall not, without E&l’s prior written consent, copy or disclose such information to a third party. Such information shall be used solely for the operation or maintenance of the Equipment and not for any other purpose, including the duplication thereof in whole or in part.
13. Force Majeure
E&I shall neither be liable for loss, damage, detention or delay nor be deemed to be in default for failure to perform when prevented from doing so by causes beyond its reasonable control including but not limited to acts of (war declared or undeclared), acts of God, fire, strike, labor difficulties, acts or omissions of any governmental authority or of Purchaser, compliance with government regulations, insurrection or riot, embargo, delays or shortages in transportation or inability to obtain necessary labor, materials, or manufacturing facilities from usual sources or from defects or delays in the performance of its suppliers or subcontractors due to any of the foregoing enumerated causes. In the event of delay due
14. Cancellation
Except as otherwise provided in this paragraph, any order may be canceled by Purchaser only upon prior written notice and payment of termination charges, including but not limited to, all costs attributable to the order incurred prior to the effective date of notice of termination and all expenses incurred by E&I attributable to the termination, plus a fixed sum of ten (10%) percent of the final total price to compensate for disruption in scheduling, planned production and other indirect costs. Notwithstanding the foregoing, any order for a custom motor or control manufactured or modified from its original condition by E&I according to specifications or requirements provided by Purchaser may not be canceled, and any such product may not be returned by Purchaser.
15. Returns
All Equipment returned to E&I must be (i) returned within ninety (90) days after delivery, (ii) must include the product(s) specified in the applicable order, together with all parts, accessories, manuals, documentation, Software and any other items originally shipped by E&I to Purchaser pursuant to the order (iii); must be in the same condition as when such Equipment left E&l’s facility for shipment to Purchaser and (iv) shall be subject to a restocking fee equal to twenty percent (20%) of the purchase price. Custom motors or controls manufactured or modified from their original condition by E&I according to specifications or requirements provided by Purchaser may not be returned. Any returns failing to meet the requirements set forth in this paragraph will not be accepted by E&I.
16. Default
In no event shall E&I be considered in default of its obligations under this Agreement unless, within ten (10) days after receipt by E&I of Purchaser’s written notice specifying such default, E&I shall have failed to initiate and pursue with due diligence correction of such specified default.
17. Independent Contractor
E&I shall be an independent contractor with respect to the provision of all Services, Equipment, Software and products, and neither E&I nor anyone employed by E&I shall be deemed for any purpose to be the employee agent, servant or representative of Purchaser.
18. Customer Hereby:
(a) grants to E&I Sales Co. (“E&I”) a purchase money security interest and continuing lien in all goods, equipment or product and their proceeds (“Product”) purchased under this Sales Agreement until all payments required thereunder are made in full; (b) authorizes E&I to execute and file appropriate U.C.C. financing statements or other documents on Customer’s behalf to perfect E&l’s security interest; and (c) agrees to perform all acts necessary to protect E&l’s interest in the Product. Customer shall be subrogated to all of E&l’s rights in the event of any payment or other satisfaction for damaged, lost or destroyed Product. Buyer shall execute and deliver all instruments and take all other actions necessary to secure such rights. The rights and remedies granted to E&I herein are cumulative and are without waiver of or prejudice to any other rights or remedies that E&I may have against Customer under this Agreement or applicable law.