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 (October 25, 2012)
These Terms and Conditions, the attendant quotation or acknowledgment and all documents incorporated by specific reference therein, will be the complete and exclusive statement 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 conflict herewith.
1. PRICES: Unless otherwise specified 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 acknowledgment of
Buyer’s order for the Goods, whichever occurs first, provided an unconditional, 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. TAXES: 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 specific quantity ordered.
6. LIMITED WARRANTY: 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 specified 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 WITHOUT LIMITATION,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOS WHETHER OR NOT
THE PURPOSE OR USE HAS BEEN DISCLOSED TO SELLER IN SPECIFICATIONS,
DRAWINGS OR OTHERWISE, AND WHETHER OR NOT SELLER’S PRODUCTS ARE
SPECIFICALLY DESIGNED AND/OR MANUFACTURED 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 modification or alteration, use beyond rated
capacity, or improper installation, maintenance or application. To the extent that Buyer or its
agents has supplied specifications, information, representation of operating 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 provisions 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 warranty period, Buyer notifies 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, ACQUIRE
OR USE SELLER’S GOODS, INCLUDING ANY ENTITY OR PERSON WHO BUYS THE
GOODS FROM SELLER’S DISTRIBUTOR AND SUCH ENTITY OR PERSON SHALL BE
BOUND BY THE LIMITATIONS THEREIN.
7. LIMITATION OF REMEDY AND LIABILITY: THE SOLE AND EXCLUSIVE REMEDY
FOR BREACH OF ANY WARRANTY HEREUNDER (OTHER THAN THE WARRANTY
PROVIDED UNDER SECTION 13) SHALL BE LIMITED TO REPAIR, REPLACEMENT
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 LIABILITY 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 LIABILITY TO BUYER
AND/OR ITS CUSTOMERS EXTEND TO INCLUDE INCIDENTAL, 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
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 accepted at Buyer’s
GOODS AND/OR SERVICES SOLD HEREUNDER ARE NOT FOR USE IN ANY
NUCLEAR AND RELATED APPLICATIONS. Buyer accepts goods and/or services with
the foregoing understanding, agrees to communicate the same in writing to any subsequent
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, fire, flood, 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 appropriate 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 indirectly 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. CANCELLATIONS 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 profit
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 specifications 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 specifications for the Goods without prior notice to Buyer, except with respect
to Goods being made-to-order for Buyer.
11. TOOLING: 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. PATENTS AND COPYRIGHTS: Subject to Section 7, Seller warrants that the Goods
sold, except as are made specifically for Buyer according to Buyer’s specifications, 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 compromise 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 become non-infringing; or grant Buyer a credit
for the depreciated value of such Goods and accept return of them.
14. EXPORT/IMPORT: Buyer agrees that all applicable import and export control laws, regulations,
orders, and requirements, including without limitation those of the United States and the European
Union, and the jurisdictions in which the Seller and the Buyer are established or from which Goods
may be supplied, will apply to their receipt and use. In no event shall Buyer use, transfer,
release, import, or export Goods in violation of such applicable laws, regulations, orders
15. 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, modification, 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 officer 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 unless hereafter made in writing
and signed by the party to be bound, and no modification shall be affected 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 modifications or additional terms are
specifically 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.
EPT EDGE, Browning, McGill and Sealmaster are registered trademarks of
Emerson Power Transmission Manufacturing.
Jaure is a registered trademark of Jaure, S.A.
Kop-Flex is a registered trademark of Kop-Flex Inc.
Rollway is a registered trademark of Emerson Power Transmission Ithaca, Inc.
Solus is a registered trademark of Solus Industrial Innovations, LLC.
System Plast is a registered trademark of System Plast S.p.A.
Morse is a registered trademark of Borg-Warner Corporation, used herein under exclusive
The following trade names, trademarks and/or registered trademarks
are used in this material by Emerson Power Transmission Corporation for comparison
purposes only, are NOT owned or controlled by Emerson Power Transmission Corporation
and are believed to be owned by the following parties: Microsoft, Internet Explorer,
PowerPoint, Windows, and Windows NT: Microsoft Corporation; Adobe and Acrobat: Adobe
Systems Inc.; American: Ameridrives International, LLC; AutoCAD and AutoLisp: Autodesk,
Inc.; Boston: IMO Industries, Inc.; Dodge: Reliance Electric Company; Globe: SPX
Corporation; Martin: Martin Sprocket & Gear, Inc.; Ohio: Ohio Gear, Inc.; Union
and UST: U.S. Tsubaki, Inc.
The proper selection and application of power transmission products and components,
including the related area of product safety, is the responsibility of the customer.
Operating and performance requirements and potential associated issues will vary
appreciably depending upon the use and application of such products and components.
The scope of the technical and application information included in this publication
is necessarily limited. Unusual operating environments and conditions, lubrication
requirements, loading supports, and other factors can materially affect the application
and operating results of the products and components and the customer should carefully
review its requirements. Any technical advice or review furnished by Emerson Power
Transmission Corporation and its divisions with respect to the use of products and
components is given in good faith and without charge, and Emerson assumes no obligation
or liability for the advice given, or results obtained, all such advice and review
being given and accepted at customer's risk.
For a copy of our Standard Terms and Conditions of Sale, Disclaimers of Warranty,
Limitation of Liability and Remedy, please contact Customer Service at 1-800-626-2120.
These terms and conditions of sale, disclaimers and limitations of liability apply
to any person who may buy, acquire or use an Emerson Power Transmission Corporation
product referred to herein, including any person who buys from a licensed distributor
of these branded products.