1. General
The terms and conditions apply to the purchase and sale of products through www.emosystems.com (referred to as the “Site”).
By ordering Products through the Site or by mail, e-mail, phone, fax, or any other method, you acknowledge and agree to the EMO Systems, Inc. Terms of Use, Conditions of Order, and the Warranty Agreement collectively referred to as this “Agreement.”
Unless otherwise expressly agreed to in writing by you (“Buyer”) and EMO Systems, Inc. (“Seller”), all completed orders and/or sales from EMO Systems Inc. are subject to this Agreement. Buyer must confirm all verbal orders in writing prior to execution.
2. Terms of Payment
Seller accepts payment using checks by US Mail.
3. Prices
All prices will be as specified by Seller in its Sales Documents and are firm for the quantity and schedules set forth in the Sales Documents (and are subject to change if Seller allows a change in the quantity or schedule).
If no price has been specified or quoted, it will be Seller’s price according to its catalogs or price lists in effect at the time of delivery.
All prices published by Seller or quoted by Seller’s representatives may be changed at any time without notice.
The price does not include any sales, use, personal property, excise, transfer or other tax, duties or assessment related to the Products or their purchase and sale which may be imposed by any governmental authority, all of which shall be the obligation of, and paid by, Buyer.
In the event that Seller pays any such tax or assessment, Buyer shall reimburse Seller in accordance with the terms of Section 2(c) but no discount shall apply to such tax or assessment. Buyer is responsible for obtaining and providing to Seller any certificate of exemption or similar document required exempting any sale from sales, use or similar tax liability.
Unless expressly specified otherwise in Seller’s Sales Documents, the standard payment terms are payment is due within 30 days of the invoice date.
If Buyer fails to make any payments when due, then
(i) interest shall accrue from the date the payment was due until payment is received in full at the lower of 1.5% per month or the maximum amount allowed by applicable law,
(ii) Buyer shall pay Seller’s reasonable attorneys’ fees and other costs of collection of any past due amounts, and
(iii) Seller may, at its sole discretion, take any of the following actions: suspend performance; terminate the Contract for default; require Buyer to pay the full Contract price; and take any other actions or pursue any other remedies under applicable law. Failure by Seller to charge interest on late payments or to exercise its right to suspend its performance shall not be construed as a waiver of any other legal or equitable remedies.
4. Delivery
The prices do not include any transportation, packaging or installation costs.
Seller may make partial deliveries. Notwithstanding any requested delivery date by Buyer, the delivery date in Seller’s order confirmation shall control. Any shipping or delivery schedule, quotation, forecast or commitment is only an estimate and Seller will not be liable for any delay or failure to deliver all or any part of any order for any reason. Seller shall not be responsible for any damage to the Products caused by a carrier and Buyer’s sole recourse for such damage shall be against the carrier.
If at any time, in its sole judgment, Seller has any doubt as to Buyer’s financial responsibility, Seller may decline to make further shipments except upon receipt of a deposit or other satisfactory security or cash before shipment.
5. Returned Products and Claims
Within fifteen (15) days after Buyer’s receipt of Products sold, Buyer must give written notice to Seller of any claim by Buyer based upon the condition, quantity, or grade of the Products sold or of any claimed nonconformity with the Product specifications, and the notice must indicate the basis of the claim in detail.
Buyer’s failure to comply with this paragraph shall constitute irrevocable acceptance by Buyer of the Products delivered and shall bind Buyer to pay to Seller the full price of such Products.
Products sold shall not be returned without Seller’s prior written consent; for any returns that Seller allows, a restocking fee will apply and Seller will not pay the transportation charges for any return unless authorized in advance.
6. Limited Warranty
Subject to these Terms, Seller warrants to Buyer only that the Products will conform to specifications published by Seller (or in the case of custom Products, the specifications that Buyer and Seller mutually agreed upon in writing) [and be free from defects in material and workmanship] under proper storage and use for a period of 12 months from the date of delivery (“Warranty Period”).
The limited warranty set forth in the previous sentence (“Limited Warranty”) is limited to the Buyer only and is non-transferable. Buyer makes the decision on the selection and use of the Products and the Products’ suitability for use.
Buyer’s approval of any Product prototype shall be proof that the design meets the specifications. For any Product performance data and or physical dimensions (including specified levels of mechanical hum and magnetic strayfield) that Seller has not agreed upon in writing in advance of Seller’s production release of Buyer’s order, and which Buyer contends that deviate from the originally accepted prototype, Seller will, if technically possible, modify them at Buyer’s expense after Seller receives Buyer’s written authorization of such work.
EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY PROVIDED IN SECTION 6(a) ABOVE, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE PRODUCTS AND SELLER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS AND IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE PRODUCTS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
No dealers, distributor, sales representative, employee or any other person or entity is authorized to offer any different or additional warranties or remedies, or to change this Limited Warranty, without the signature of an authorized officer of Seller.
7. Limited Warranty Exclusions
The Limited Warranty does not cover damage to Products caused
(i) during or after delivery;
(ii) by normal wear and tear;
(iii) by use under circumstances exceeding Seller’s specifications or limitations or contrary to any instructions or information contained in Seller’s operating or maintenance manuals (as supplemented from time to time by Seller);
(iv) by unauthorized or improper installation, repair, alteration;
(v) by non-original equipment manufacturer spare parts or components;
(vi) by failure to provide reasonable and necessary maintenance;
(vii) by improper storage;
(viii) by corrosion, erosion, abrasion or similar causes; and
(ix) by accidents.
8. Liability
IN NO EVENT SHALL THE SELLER BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, OR LOSS OF BUSINESS OPPORTUNITY) ARISING OUT OF OR RELATING TO
(I) ANY PRODUCT OR SERVICE PROVIDED OR TO BE PROVIDED BY THE SELLER, OR THE USE OR INABILITY TO USE THE SAME,
(II) THE USE OF OR INABILITY TO USE THE SITE, THE SERVICE, OR THE CONTENT,
(III) ANY TRANSACTION CONDUCTED THROUGH OR FACILITATED BY THE SITE;
(IV) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SITE, THE SERVICE AND/OR THE CONTENT,
(V) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA,
(VI) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE OR THE SERVICE, OR
(VII) ANY OTHER MATTER RELATING TO THE PRODUCTS, THE SITE, THE SERVICE, OR THE CONTENT; EVEN IF THE SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUBJECT TO THE FOREGOING, IN NO EVENT SHALL THE LIABILITY OF THE SELLER RELATING IN ANY WAY TO THE PRODUCTS, SERVICES, OR THIS AGREEMENT EXCEED THE PURCHASE PRICE FOR THE PRODUCTS OR SERVICES WHICH ARE THE SUBJECT OF ANY CLAIM, REGARDLESS OF THE LEGAL THEORY ASSERTED FOR SUCH LIABILITY, WHETHER IN CONTRACT, TORT, WARRANTY OR OTHERWISE.
IF YOU ARE DISSATISFIED WITH THE SITE, THE SERVICE, THE CONTENT, OR WITH THE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE. YOU ACKNOWLEDGE, BY YOUR USE OF THE SITE, THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK.
Any cause of action against any of the seller with respect to Products or services must be instituted within one (1) year from the date of purchase or provision of the applicable Products or services.
9. Indemnification
You understand and agree that you are personally responsible for your use or inability to use the Products, and your reliance upon any information or recommendation provided by the Seller’s personnel. You agree to indemnify, defend and hold harmless the Seller’s joint venturers, business partners, licensors, employees, agents, and any third-party information providers to the Service from and against all claims, losses, expenses, damages and costs (including, but not limited to, direct, incidental, special, consequential, punitive, exemplary and indirect damages), and reasonable attorneys’ fees, resulting from or arising out of your use, misuse, or inability to use the Products, the Site, the Service, or the Content, your reliance upon any information or recommendation provided by the Seller’s. personnel, or any violation by you of this Agreement, including any violation of the Seller’s Return Policy.
10. Jurisdiction
These terms of service supersede any other agreement between the Buyer and the Seller to the extent necessary to resolve any inconsistency or ambiguity between them. These terms of service will be governed by and construed in accordance with the laws of the State of Texas, without giving effect to any principles of conflicts of laws. Any action seeking legal or equitable relief arising out of or relating to this Web Site will be brought only in the courts of the State of Texas.
A printed version of these terms of service will be admissible in judicial and administrative proceedings based upon or relating to these terms of service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
11. Force Majeure
The Seller will not be liable for delays in delivery or for failure to perform its obligations due to causes beyond its reasonable control including, but not limited to, product allocations, material shortages, labor disputes, transportation delays, unforeseen circumstances, acts of God, acts or omissions of other parties, acts or omissions of civil or military authorities, Government priorities, fires, strikes, floods, severe weather conditions, computer interruptions, terrorism, epidemics, quarantine restrictions, riots or war.