Eagle Machine, Inc. Terms Of Sale
THIS TRANSACTION IS GOVERNED BY EAGLE MACHINE, Inc. (EMS) GENERAL TERMS OF SALE, NOTWITHSTANDING ANY PROVISIONS SUBMITTED BY BUYER. ACCEPTANCE OF THE ORDER IS EXPRESSLY CONDITIONED ON BUYER'S ASSENT TO EMS TERMS AND CONDITIONS. EMS SPECIFICALLY REJECTS ANY DIFFERENT OR ADDITIONAL TERMS AND CONDITIONS AND NEITHER EMS PERFORMANCE NOR RECEIPT OF PAYMENT SHALL CONSTITUTE ANY ACCEPTANCE OF THEM. IN THE EVENT THERE IS A WRITTEN AGREEMENT BETWEEN THE PARTIES THAT CONFLICTS WITH THE TERMS SET FORTH BELOW, THE TERMS OF THE WRITTEN AGREEMENT CONTROL FOR SUCH SPECIFIC PROVISIONS IN CONFLICT.
1. PRICE As shown on invoice, subject to any written agreement.
2. DEFINITIONS a. EMS – Eagle Machine, Inc., Doing Business in Texas as Eagle Machine, Inc.b. User - The company shown on invoice, subject to any written agreement (the original purchaser or original lessee).c. Machine - The equipment described in EMS proposal.
3. SALE AND DELIVERY FOB Arlington, TX. User to pay all freight and insurance charges from FOB point, and all demurrage, rigging and unloading charges at destination point. Quotes can be provided upon request.
4. TAXES All applicable taxes and assessments are to be paid by User, except income taxes of EMS.
5. WARRANTY EMS warrants equipment of its own manufacture to be free from defects in materials and workmanship for the period (stated on machine/ on contract or AS-IS) from shipment. THIS WARRANTY EXTENDS ONLY TO USER, AND IN NO EVENT SHALL EMS BE LIABLE FOR PROPERTY DAMAGE SUSTAINED BY A PERSON DESIGNATED BY THE LAW OF ANY JURISDICTION AS A THIRD PARTY BENEFICIARY OF THIS WARRANTY OR ANY OTHER WARRANTY HELD TO SURVIVE EMS's DISCLAIMER. Replacement parts provided under the terms of this warranty are warranted for the remainder of the warranty period applicable to the machine, as if such parts were original components of the machine. With respect to equipment, materials, parts and accessories manufactured by others, EMS will undertake to obtain for User the full benefits of the manufacturer's warranties, BUT IN NO EVENT SHALL USER OR ANY OTHER PERSON HAVE ANY REMEDY AGAINST EMS FOR BREACH OF A EMS's WARRANTY. In regard to motors, users who attempt to open motor casings or repair motors during the warranty period shall void the motor's warranty. All repairs must be made by the EMS or the warranty will be void. A defect in a part shall not condemn the whole machine. THE WARRANTY DESCRIBED IN THIS PARAGRAPH SHALL BE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. EXCLUSIVE REMEDY Upon written notification received by EMS within the above stated warranty period of any failure to conform to the above warranty, upon return prepaid to EMS of any nonconforming original part or component, and upon inspection by EMS to verify said nonconformity, EMS shall repair or replace said original part or component without charge to User. EMS shall ship the repaired or replaced part or component to User at User's expense. Cost for removal and/or installation of repaired or replaced parts supplied under the above warranty shall be at the User's expense after the (x) month(s) warranty is over. If machine is still under (x) month(s) warranty, User will only be responsible for EMS technician trip charge. Parts and Labor are covered by EMS (x) month(s) machine warranty. Correction of nonconformities, in the manner and for the period of time provided above, shall constitute fulfillment of all liabilities of EMS to User or any other person whether based upon contract, tort (including negligence), strict liability or otherwise.THE REMEDIES SET FORTH HEREIN ARE EXCLUSIVE, WITHOUT REGARD TO WHETHER ANY DEFECT WAS DISCOVERABLE OR LATENT AT THE TIME OF DELIVERY OF THE MACHINE TO USER. The essential purpose of this exclusive remedy shall be to provide User with repair or replacement of parts or components that prove to be defective within the period and under the conditions previously set forth. This exclusive remedy shall not have failed of its essential purpose (as that term is used in the Uniform Commercial Code) provided EMS remains willing to repair or replace defective parts or components within a commercially reasonable time after it obtains actual knowledge of the existence of a particular defect.
7. CORROSION EXCLUSION EMS specifically excludes corrosion of stainless steel, aluminum, or other metals normally used in the fabrication of its equipment from its warranty. EMS is not liable for loss or damage due to corrosion from exposure to aggressive liquids or atmospheres, nor shall EMS be held liable for Buyer's failure to properly clean or care for this equipment.
8. LIMITATION OF LIABILITY IN NO EVENT SHALL EMS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES NOR SHALL EMS BE LIABLE FOR ANY LOSS OF PROFIT, LOSS BY REASON OF PLANT SHUTDOWN, NON-OPERATION OR INCREASED EXPENSE OF OPERATION, LOSS OF PRODUCT OR MATERIALS, WITH RESPECT TO THIS CONTRACT OR ANYTHING DONE IN CONNECTION THEREWITH (INCLUDING, WITHOUT LIMITATION, SERVICES PROVIDED PURSUANT TO PARAGRAPH 9 BELOW), WHETHER BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
9. INSTALLATION Customer is responsible for the install unless otherwise specifically agreed, USER MUST HAVE POWER AND AIR TO THE MACHINE AT ITS LOCATION BEFORE AN INSTALLATION. EMS will be responsible for the installation and start-up of the equipment after power and air to the machine is confirmed by the User. EMS is not responsible for any additional electrical equipment such as (transformer, buck and boost transformer, breaker box, fuses) that may be needed to operate machine at Users machine location.
10. ACCELERATION If the terms of payment for the equipment allow for installment payments, Buyer agrees that EMS, at its discretion, may accelerate and make due and payable all remaining installments if (a) Buyer shall fail to make one or more installments when due, or (b) any of the events constituting cause for automatic cancellation under paragraph 15(b) below shall have occurred before or after delivery of the equipment.
11. SHIPMENT Shipment dates are not guaranteed. EMS shall not be liable for delayed delivery or non-delivery for any reason. Where shipment is deferred at User's request for more than 30 days beyond the originally scheduled date of shipment, the order will be subject to invoicing, payment and storage charges from scheduled date of shipment, or in lieu thereof, interest on any unpaid balance at 1-1/2% per month.
12. FORCE MAJEURE No liability shall result from delays in shipment caused by circumstances beyond the control of EMS, including but not limited to, Acts of God, fire, flood, war, riots, accidents, strikes, plant shutdown, rules and regulations of local, state and federal governmental agencies or any other causes beyond the reasonable control of Seller.13. ACCEPTANCEThis proposal shall not be a binding contract on either party until payment of the advance with order and acceptance by an officer or an authorized employee of EMS.
14. THIRD PARTY LEASES If User elects that EMS sell the machine to a third party who will lease the machine to User, EMS must have an acceptable purchase order from that third party lesser prior to shipment.
15. CANCELLATION EMS may cancel this order before shipment if User refuses to authorize shipment within thirty (30) days after notice that the Machine is ready, or fails to make any payments or execute any documents required prior to shipment. (b) The Proposal and any order are automatically cancelled if User has become insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or if proceedings are commenced by or against User in any jurisdiction under a provision or chapter of any bankruptcy act, or if User suffers the appointment of a receiver or trustee or makes an assignment for the benefit of creditors. (c) User may not cancel except upon payment of twenty percent (20%) of the total price of the Machine, plus EMS's non-recoverable costs (including incidental and consequential damages) attributable to this order, plus restocking charges to be determined by EMS.
16. MERGER CLAUSE EMS's proposal signed by both parties, including the specifications and pricing, agreement and General Terms of Sale, constitutes the final written expression of the terms of EMS's proposal and is a complete and exclusive statement of those terms, and any and all representations, promises, warranties or statements by EMS's agent that differ in any way from the terms of EMS's written proposal shall be given no force or effect.
FOB: Arlington, TX or Customer (Machine) Location
Delivery: TBD/ After Receiving PO
Terms: 100% before shipment
Taxes: Any applicable taxes are not included in this quote and will be extra if required.