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 (December 2013)
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 provision of services (“Services”) and/or the sale of goods (“Goods”) by Emerson Power Transmission Corporation and its divisions and subsidiaries (“Seller”)
to Customer (“Buyer”). Buyer’s acceptance of the Services/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/provision of Services 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/provision of Services, may at Seller’s option, be added to
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 for the Goods or the date of
provision of Services acknowledged or quoted by Seller, all such 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
5. QUANTITY: Buyer agrees to accept overruns of up to ten percent (10%) of the order on “made-toorder”
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 and
Services will be performed by trained personnel using proper equipment and instrumentation for the
particular Service provided. Any licensed firmware embodied in the Goods will execute the programming
instructions provided by Seller. The foregoing warranties will apply until the expiration of the applicable
warranty period. Except as specified below, Goods are warranted for twelve (12) months (unless
otherwise specified by Seller in writing) from the date of shipment of the Goods by Seller. Consumables
and Services (except as specified below) are warranted for a period of 90 days from the date of
shipment or completion of the Services. Products purchased by Seller from a third party for resale to
Buyer (“Resale Products”) shall carry only the warranty extended by the original manufacturer. Buyer
agrees that Seller has no liability for Resale Products beyond making a reasonable commercial effort to
arrange for procurement and shipping of the Resale Products. THIS IS THE SOLE AND EXCLUSIVE
WARRANTY GIVEN BY SELLER WITH RESPECT TO THE GOODS/SERVICES 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 PURPOSE 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 or provision of Services 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, correct, 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
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, CORRECTION, 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
OR SERVICES 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 OR EQUIPMENT AND COSTS INCURRED INCLUDING WITHOUT
LIMITATION FOR CAPITAL, FUEL AND POWER, AND CLAIMS OF BUYER’S CUSTOMERS.
GOODS AND/OR SERVICES SOLD HEREUNDER ARE NOT FOR USE IN ANY NUCLEAR AND
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. BUYER RESPONSIBILITIES: Buyer shall provide Seller ready access to the site where services are
to be performed and adequate workspace and facilities to perform same as provided in these terms and
conditions. Buyer shall not require Seller or its employees, as a condition to site access or otherwise,
to further agree or enter into any agreement, which waives, releases, indemnifies or otherwise limits or
expands any rights or obligations whatsoever. Any such agreements shall be null and void. Buyer shall
inform Seller, in writing, at the time of order placement, of any known hazardous substance or condition
at the site, including, but not limited to, the presence of asbestos or asbestos containing materials,
and shall provide Seller with any applicable Material Data Safety Sheets regarding same. Buyer shall
to be present at all times that Seller personnel are at the site. Seller shall not be liable for any expenses
incurred by Buyer in removing, replacing or refurbishing any Buyer equipment or any part of Buyer’s
building structure that restricts Seller access. Buyer personnel shall cooperate with and provide all
necessary assistance to Seller. Seller shall not be liable or responsible for any work performed by Buyer.
9. BUYER SUPPLIED DATA: To the extent that Seller has relied upon any data or information supplied
by Buyer to Seller (“Data”) in the selection or design of the Goods and/or provision of the Services and
the preparation of Seller’s quotation, and the Data is inadequate or inaccurate, any warranties or other
provisions contained herein which are affected by such conditions shall be null and void.
10. EXCUSE OF PERFORMANCE: Seller shall not be liable for delays in performance or for nonperformance
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 of Goods or provision of Services
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.
11. 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 or provide services to the last known ship to address and invoice the Buyer
upon completion of the product or services or prior delivery date, whichever is later.
12. CHANGES: Buyer may request changes or additions to the Goods/Services 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 or Services without prior notice to Buyer, except with respect to Goods being made-to-order
for Buyer. Seller may cancel any order or terminate any agreement without liability to Buyer if Buyer fails
to meet the conditions specified herein.
13. TOOLING: Tool, die, and pattern charges, if any, are in addition to the price of the Goods/Services
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
14. SOFTWARE AND FIRMWARE: Notwithstanding any other provision herein to the contrary, Seller
or applicable third party owner shall retain all rights of ownership and title in its respective firmware and
software, including all copyrights relating to such firmware and software and all copies of such firmware
and software. Except as otherwise provided herein, Buyer is hereby granted a nonexclusive, royalty
free license to use firmware and software, and copies of firmware and software, incorporated into the
Goods only in conjunction with such Goods and only at the Buyer’s plant site where the Goods are first
used. Buyer’s use of certain firmware (as specified by Seller) and all other software shall be governed
exclusively by Seller’s and/or third party owner’s applicable license terms.
15. 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.
16. PATENTS AND COPYRIGHTS: Subject to Section 7, Seller warrants that the Goods and/or Services
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 and/or Services, singularly or in
combination, are held to infringe a U.S. patent or copyright in such suit, and the use of such Goods and/
or Services 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 providing such Services, or
replace them with non-infringing Goods or Services; or modify same to become non-infringing; or grant
Buyer a credit for the depreciated value of such Goods and accept return of them or grant Buyer a credit
for such provided
17. 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 or requirements.
18. HIRING OF EMPLOYEES: Buyer agrees that during the execution of Services by Seller and for a
period of twelve (12) months after the performance of Services, it will not hire any employee(s) of Seller
and will not entice or counsel any such employee(s) to leave Seller’s employ. Buyer agrees that this
covenant shall extend to its agents and affiliates. In the event that an employee of Seller is hired or
leaves the employ of Seller in such circumstances, Buyer shall pay Seller, as compensation for the cost
incurred by Seller in recruiting and training the employee, the sum equivalent to six (6) months pay for
each employee hired from or leaving the employment of Seller.
19. EMPLOYEE SAFETY AND SUSPENSION OF SERVICES: Seller may suspend or terminate
Services, at its sole discretion, without liability to Buyer if Buyer fails to meet its obligations hereunder or
becomes bankrupt or insolvent or if Seller determines that continuing to provide Services represents a
hazardous condition for its employees.
20. 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.