TERMS AND CONDITIONS
Terms of Agreement. These are the terms and conditions for which EMS Industrial, Inc. (seller) will sell goods and/or provide services to a buyer. All terms and conditions contained herein are deemed as part of the agreement entered into for the sales of the goods or services. Any acceptance of seller’s offer of goods or services must be in accordance with the terms and conditions contain herein, and such acceptance may not contain, or seek to improve, any additional terms. Any additional terms shall be deemed a rejection by the seller to the extent that any response to buyer by seller is construed to be an acceptance of an offer from buyer, seller’s acceptance is expressly conditioned upon buyer’s assent to the terms and conditions stated herein.
Pricing and Payment. Pricing is valid for 30 days from quotation, pending any manufacturer’s price increase. The quote does not contain freight unless otherwise noted. If the price of materials changes significantly within the 30-day window, by at least 7.5%, the seller may raise the quoted price by the increase in material change.
The standard payment terms require the buyer to pay the full amount within thirty days of the invoice date, unless otherwise agreed upon. All orders are subject to a credit approval by the accounting department. Additionally, the seller has the right to request full or partial payment in advance from the buyer. Payments are to be made on a pro-rata basis as shipments are made. This means that the buyer should make partial payments corresponding to the value of each shipment. If the buyer fails to comply with the payment terms or any other terms of the sale, the seller reserves the right to cancel the unfilled portion of the contract or order. However, the buyer remains responsible for any unpaid accounts and may be liable for any damages resulting from the breach of these terms and conditions. Seller reserves the right to charge the buyer up to 5% on credit card purchases.
Return of Goods. The buyer may not return any product or part to the seller without obtaining prior written authorization and shipping instructions from the seller. This means that the buyer must contact the seller and receive approval and instructions before initiating any return. Any return must be made within 30 days of purchase. In the event the buyer wants to return an item, the buyer must produce an invoice or original packing slip as well as material cannot be returned used, damaged, or out of original packaging. Restocking charges may apply. Freight charges on returned merchandise will not be subject to a refund unless seller shipped the wrong product. Lastly, non-stock or made-to-order items are not returnable unless the manufacturer accepts the return. The manufacturer’s restocking and transportation fees apply.
Delivery. The seller prefers to make deliveries using their own truck. The seller bears the risk of loss until the time of delivery, except in cases where the delivery is not made using the seller’s truck. In such instances, once the goods are delivered to the carrier, the risk of loss or damage during transit is transferred to the buyer. If the buyer is located outside the seller’s delivery area or requires product prior to the seller’s delivery date, the product will be shipped using a common carrier. This means that a 3rd-party shipping company will be used to transport the goods. At that point the buyer assumes the responsibility and risk of loss or damage during transit. Unless product is deemed damaged at the time of delivery and immediately communicated to the seller, the buyer cannot refuse delivery on ordered products.
Cancellation. The seller reserves the right to cancel the order for reasons of breach by the buyer. Such reasons include, but are not limited to, buyer’s failure to make payment or the bankruptcy of the buyer. The buyer is not permitted to cancel an order without providing written notice to the seller. If cancellation is allowed, the buyer is required to pay the seller for all costs incurred by the seller that are related to or arising from the order.
Title. The title to the products remains with the seller until they are fully paid for by the buyer. The products are considered the seller’s property until payment in full is received. This means that the seller retains ownership of the products until the buyer fulfills their payment obligations.
Changes. The seller has the right to make changes in the product, including substituting equivalent product without prior approval from the buyer. These changes or substitutions are considered necessary by the seller to avoid delays or to improve various aspects of the product. Additionally, they should not significantly affect the design of the product.
Warranty. For the sale of new product, the seller only provides warranty that the product will be of the kind and quality described in the specifications. This means that there are no other express or implied warranties provided by the seller. The buyer must follow the warranty in place by the manufacturer of the product.
The seller warrants the reconditioning and rewind services provided by seller will be free from defects on all work performed for the following periods:
- Reconditioning of rotating equipment = one year
- Rewind without VPI = one year / Rewind with VPI = two years
- Failure on all mechanical component parts purchased and installed to be warranted per manufacturer’s guidelines.
- If buyer requests that a different set of procedures are to be used other than what the seller would normally do, it nullifies all warranties on reconditioning and rewinds. For example, if customer wants to use different materials than seller would normally use, the warranty no longer applies.
If buyer claims a warranty failure, buyer must provide seller with written notice of the failure. This written notice should be sent within (5) days from the date of actual warranty failure. A defective product is not to be returned to the seller unless authorized by the seller. The seller is not responsible for the removal or shipment of the said defective product. The seller then reserves the right to inspect products claimed defective under warranty at seller’s operation. Products shall be returned to seller’s operation, inspected and potentially corrected by repairing or replacing the defective part(s). No other claims, except for the request for repair or replacement, can be made by the buyer. If replacement is the only option, the seller will warrant up to the amount equal to the repair cost. The seller is not liable for any claims related to labor or consequential damages, such as loss of production. The buyer agrees to indemnify and protect the seller against any loss or damage, except for the cost of repair or replacement, arising from the testing, use, operation, replacement, or repair of the product. If the buyer continues to use or possess the product after the warranty period expires, it will be considered conclusive evidence that the warranty has been fulfilled to the buyer’s satisfaction. The buyer agrees not to make any further claims against the seller thereafter.
Performance and Force Majeure. The seller will not be held responsible for any delay or failure in performance if it is caused by circumstances beyond their reasonable control. These circumstances may include but are not limited to acts of God (natural disasters), actions taken by the government or public enemy, riots, embargoes, strikes, accidents, transportation delays, and shortages of cars, fuel, power, labor, or materials. In fact, obligations of the parties under this Agreement shall be suspended to the extent a party is hindered or prevented from complying therewith because of labor disturbances (strikes or lockouts), acts of war, acts of terrorism, vandalism or other aggression, pandemics, acts of God, fires, floods, storms, accidents, governmental regulations, state or federal executive orders or any other cause whatsoever beyond a party’s control, so long as that party provides prompt written notice describing the condition and takes all reasonable steps to avoid or remove such causes of nonperformance and immediately continues performance whenever and to the extent such causes are removed.
Miscellaneous. These terms and conditions are intended to benefit and bind the successors and permitted assigns of the parties involved. This means that if there is a change in ownership or assignment of rights, these terms and conditions will continue to apply to the new parties. The parties are restricted from assigning these terms and conditions, either in whole or in part, without obtaining prior written consent from the other party. This means that if either party wants to transfer or delegate their rights or obligations under these terms and conditions to a third party, they must first obtain written consent from the other party. All terms and conditions shall be governed by the laws of the State of Wisconsin.