Standard Terms and Conditions of Sale - January 1, 2016
Seller warrants to the Customer that the Parts delivered hereunder will be free from defects in material, workmanship and title. The foregoing shall apply only to failures to meet said warrants (excluding defects in title) which appear within eight thousand (8,000) EOH (equivalent operating hours). If any failure to meet said warranty appears within the applicable warranty period, on the condition that Seller be promptly notified in writing thereof, and provided that the Parts have been properly stored, maintained, installed, and used, Seller will correct any such defect by either (at Sellers option) pro-rated repair of any defective Parts furnished hereunder, or make available pro-rated replacement Parts. The foregoing obligation is limited to the Parts supplied and does not include any responsibility or obligation with respect to removal or replacement of systems, structures or other parts of the facility. This Warranty does not assume liability for or cover defects or failures that occur as a result of design or manufacturing characteristics common on original equipment manufacturers parts that have been reverse engineered and replicated. Documentation of original equipment manufacturer’s like hardware’s ability to consistently perform without warranty considerations during the warranty period is a prerequisite for any part to be covered under this Warranty. This Warranty shall not apply to any Part, or portion thereof, which is normally consumed in operation, or which has been altered or repaired other than by Seller.
All parts repaired or replaced under this warranty are warranted, subject to the terms of this Section, WARRANTY, for a period of one year from date of repair or replacement or for the remaining period from of the original warranty, whichever comes first.
The conditions of any test shall be mutually agreed upon in advance and Seller shall be notified of, and may be represented at, all tests that may be made. The above warranties (except as to title) shall not apply in the event that a defect appears in a Part particularly by the Customer contrary to the recommendations, current design specifications, and/or practices of Seller. Notice of all warranty claims must be given by Customer to Seller promptly, and in no event after expiration of the warranty period established in this Section, WARRANTY.
The preceding paragraphs in this Section, WARRANTY, set forth the exclusive remedies of the Customer for all claims based on failure of, or defect in, the Parts, or incidental goods or services sold hereunder, whether the failure or defect arises before or during the warranty period and whether a claim, however instituted, is based on Purchase Order, indemnity, warranty, tort (including negligence), strict liability or otherwise. The foregoing warranties are exclusive and are in lieu of all other warranties whether written, oral, implied or statutory.
NO IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY.
The offer, order, acceptance or sale of any Services or Goods covered by Company’s proposal or the Contract is expressly conditioned upon Purchaser’s assent to the terms and conditions contained herein. Any additional or different terms and conditions proposed by the Purchaser are expressly objected to and will not be binding upon the Company unless specifically assented to in writing by the Company's authorized representative. Any order for, or any acceptance or statement of intent to purchase, or any direction to proceed with work, shall constitute assent to these terms and conditions. Unless otherwise specified by Company in writing, any proposal by Company shall expire ninety (90) days from its date and may be modified or withdrawn by Company prior to receipt of Purchaser’s acceptance.
DEFINITION OF TERMS
“Company” – ETS Power Group, Inc.
“Contract” - The agreement, contract, purchase order or other documentation between the parties that defines the requirements of the order is defined as the Contract between the Company and the Purchaser for the purchase of the Goods or Services.
“Goods” - Any goods and/or equipment to be supplied by the Company in accordance with the Contract.
"Materials" – Any goods or equipment supplied by the Purchaser in relation to the Contract.
“Purchaser” - The entity to which the Company proposal is directed or which orders, requests, or purchases Goods or Services from the Company.
“Purchaser’s Equipment” – Purchaser’s equipment on which the Services will be performed.
“Services” - All the services to be performed or provided by the Company in accordance with the Contract, which may include one or more of the following as defined below:
“Repair Services” – Service shop work performed in Company’s shop or at the Site, such as, but not limited to, modification, repair, machining, welding, grinding, polishing, cleaning, and machine tool work.
“Inspection/Consultation Services” – Inspection and/or analysis of parts or components of Purchaser’s Equipment with the objective of reporting opinions or recommendations related to the current condition or future serviceability of the Purchaser’s Equipment or components.
“Site Work Services” – Any combination of planning, management, Technical Advisory Services, labor, tools and incidental goods necessary to disassemble, move, install, assemble, modify and/or maintain Purchaser’s Equipment at the Site.
“Technical Advisory Services” – Technical advice and counsel from Company’s technical advisors based on Company’s current manufacturing, installation and repair practices as applicable to Purchaser’s Equipment. To the extent specified in Company’s proposal or the Contract, such services may also include testing, adjustment, programming or other similar services. Unless otherwise specified in Company’s proposal or the Contract, technical advisory services do not include supervision or management of Purchaser’s employees, agents, or other contractors.
"Site” – The Purchaser’s premises where Purchaser’s Equipment is located.
Subject to the conditions set out below, the Company warrants to the Purchaser that any Goods supplied or Services furnished hereunder will be free from defects in material and workmanship and will be of the kind specified in the Contract. The condition of any tests shall be mutually agreed upon, and the Company shall be notified of, and may be represented at, all tests that may be made. The warranties and remedies set forth herein are conditional upon the Purchaser's (a) proper storage, installation, use and maintenance of the Goods and Purchaser’s Equipment, and conformance with any applicable recommendations of the Company, and (b) promptly notifying the Company of any defects and, if required, promptly making the Goods, Purchaser’s Equipment or Materials available for correction and (c) the total price for the Goods and/or Services having been paid by the due date. The Purchaser's failure to comply with the foregoing conditions shall relieve the Company of responsibility for defective performance of the Contract.
If any failure of Goods or Services provided or performed hereunder to meet the foregoing warranties appears within the Warranty Period, the Company shall correct any such failure by reperforming defective Services and either, at its sole option, (i) repairing, on-site or Exworks (INCOTERMS 1990) at its premises, any defective Goods; or (ii) by making available, Exworks (INCOTERMS 1990)its premises or the other location of manufacture or repair any necessary repaired or replacement parts.
Warranty on Inspection/Consultation Services
Notwithstanding the foregoing, with respect to Inspection/Consultation Services for which the Company is separately compensated, the Company warrants only that such Inspection/Consultation Services will be performed competently. If any such Inspection/Consultation Services fail to meet the foregoing warranty, the Company shall re-perform such Service, but shall have no further liability. Company does not warrant the performance results of any conclusions or recommendations provided, or that any desired objective or serviceability will result from Inspection/Consultation Services.
The foregoing warranties shall apply only to defects appearing within 12 months after the date of first usage, 8000 EOH, or 18 months after delivery, whichever occurs first, unless otherwise specified in writing by the Company (the “Warranty Period”).
Warranties Stated Above are Exclusive
The preceding sets forth the exclusive remedies for all claims based on failure of, or defect in, Goods or Services furnished hereunder, whether the failure arises before or during the warranty period, and whether a claim, however instituted, is based on contract, indemnity, warranty, tort (including negligence), strict liability, or otherwise. The foregoing warranties are exclusive and in lieu of all other warranties, whether written, oral, implied or statutory. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, ALL WARRANTIES, CONDITIONS OR OTHER TERMS IMPLIED BY STATUTE OR LAW, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, ARE EXCLUDED AND DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW.
The Company does not warrant any equipment, material, components or services provided by manufacturers other than the Company. The Company shall be under no liability in respect of any defect in the Goods or Services arising from any drawing, design or specification supplied by the Purchaser. Where a failure cannot be remedied by the Company's reasonable efforts, the parties will negotiate an equitable adjustment in price respecting the defective item of the Goods or Services. All decontamination work necessary for the correction of defects shall be performed by the Purchaser at the Purchaser's expense.
DELIVERY AND COMPLETION; TITLE TRANSFER; RISK OF LOSS
Delivery and Completion: Delivery and completion times are approximate and are dependent upon prompt delivery of or ready access to the Purchaser's Equipment and prompt receipt by Company of all Materials and information necessary to proceed with the work without interruption. In the case of Goods which must be delivered to the Site, Company shall deliver the Goods to Purchaser Exworks the Company's Premises or the factory of manufacture (Incoterms 1990). Partial deliveries will be permitted.
Passage of Title: Title to Goods or materials to be shipped to the Site from the Company's country or from within the country where the Goods will be installed shall pass to Purchaser when made available for shipment from the manufacturer's factory, provided however, that title to Goods and materials to be shipped from the United States of America shall pass from Company to Purchaser immediately after each item departs from the territorial land, seas and overlying airspace of the United States. For this purpose, the parties acknowledge that the territorial seas of the United States extend to twelve nautical miles from the baseline of the country determined in accordance with the 1982 United Nations Convention of the Law of the Sea. Title to Goods or materials to be shipped to the Site from a country other than Company's country of origin, the country of installation or the United States shall pass to Purchaser at the port of export immediately after the Goods or materials have been cleared for export. Title to Goods or materials installed at the Company's premises or to other work in progress shall pass to Purchaser as such Goods or materials are installed or such services are performed. Notwithstanding passage of title, Company shall remain responsible for risk of loss to the Goods and materials incorporated therein until the delivery date.
Repair Services Shipments. If Repair Services are performed as the Company's premises, the following apply:
Purchaser shall be responsible for all actions and costs related to transporting the Purchaser's Equipment to and from the Site and the Company's premises. Notwithstanding any other provisions in the Contract, including any reference to Incoterms, Purchaser shall bear risk of loss for Purchaser's Equipment during the term of the Contract, whether at the Site, the Company's premises or in transit to or from the Company's premises. Purchaser shall be solely responsible for providing adequate insurance for the Purchaser's Equipment during the term of the Contract.
Upon notification by Company that the Repair Services have been completed, Purchaser shall arrange for the removal of the Purchaser's Equipment from the Company's premises within ten (10) days of such notification. Purchaser shall reimburse Company at Company's then current storage rate for any additional days the Purchaser's Equipment remains at the Company's Premises.
Subject to the Purchaser's lien rights under the Contract or arising under the law, title and right of possession of Purchaser's Equipment shall remain with Purchaser. All scrap resulting from Repair Services shall be the property of the Company. Company shall retain title to any Company equipment loaned or made available to Purchaser.
The Company shall not be liable for any delay in delivery or performance, or any failure to manufacture, deliver or perform due to (i) any act of God, act or failure to act of the Purchaser or its other contractors, act of civil or military authority, government priority, strike or other labor disturbance, epidemics, war, riot, delay in transportation or car shortage or (ii) inability to perform on account of any cause beyond the reasonable control of the Company, including, but not limited to, the Company's inability to obtain the necessary material, components, services or facilities. In the event of any such delay, the date of delivery or of performance shall be extended for a period equal to the time lost by reason of the delay, and, when the delay is the responsibility of the Purchaser, its agents, employees or other contractors, the Company will also be entitled to an increase in price equivalent to any increased costs.
PAYMENTS AND FINANCIAL CONDITIONS
Unless otherwise specified by the Company in its proposal a deposit of 50% of the contract value is due with the execution of the Contract and the balance due prior to shipping of the parts.
Pro rata payments shall become due without set-off as shipments are made or as work is completed at the Purchaser's Site unless otherwise agreed. If the Company consents to delay shipments after completion of any work, payment shall become due on the date when the Company is prepared to make shipment. If the work to be performed hereunder is delayed by the Purchaser, payment shall be made based on the price and the percentage of completion. Materials or Goods held for the Purchaser shall be at the risk and expense of the Purchaser until delivery.
If the Purchaser's financial condition at any time does not, in the reasonable judgement of the Company, justify continuance of the work to be performed hereunder on the terms of payment agreed upon, the Company may require full or partial payment in advance. In the event of bankruptcy or insolvency of the Purchaser or if the Purchaser makes a voluntary arrangement with its creditors or becomes subject to an administration order or goes into liquidation, or if an encumbrance takes possession or a receiver is appointed or the Purchaser threatens to cease to carry on business the Company shall be entitled to cancel any contract then outstanding and shall be discharged from any further liability and shall receive reimbursement for the work carried out.
The Company, in its discretion may retain possession of Materials and Purchaser’s Equipment serviced under this Contract or Goods where the Purchaser has wrongfully failed to take delivery of the Goods until all charges for such Goods and Services are paid. If such charges are not paid within 90 days after written notice to the Purchaser at the Purchaser's last known address, the Company may sell the Materials, Purchaser’s Equipment or Goods at public or private sale and apply the net proceeds to the Company's charges.
TAXES AND DUTIES
The Company shall be responsible for, and shall pay directly, any and all corporate taxes that are imposed by the US government. Purchaser cannot deduct or withhold any funds from the company for taxes. Purchaser shall be responsible for, and shall pay directly when due and payable, any and all Purchaser Taxes (defined below), and all payments due and payable by Purchaser to Company hereunder shall be made in the full amount of the Contract price, free and clear of all deductions and withholding for Purchaser Taxes. "Purchaser Taxes means all taxes, duties, fees or other charges of any nature (including, but not limited to, ad valorem, consumption, excise, franchise, gross receipts, import, license, property, sales, stamp, storage, transfer, turnover, use, or value-added taxes, and any and all items of withholding, deficiency, penalty, addition to tax, interest, or assessment related thereto), other than Company Taxes, imposed by any governmental authority of any country on Company or its employees or subcontractors due to the execution of any agreement or the performance of or payment of work hereunder. Products exported from the United States are presumed to be exempt from Purchaser Taxes levied within the United States. When requested by Company, Purchaser agrees to furnish without charge evidence of tax or duty exemption acceptable to the taxing or customs authorities. Furthermore, if Purchaser arranges for export shipment, Purchaser agrees to provide Company without charge, an export bill of lading. .
LIMITATIONS OF LIABILITY AND INDEMNITIES
Unless otherwise specifically agreed in writing by a duly authorized representative of the Company, together with agreement upon additional terms and conditions, Goods and Services, and Purchaser’s Equipment for which Goods and Services are provided, are not intended for use, and shall not be used, in connection with any nuclear facility. The Purchaser hereby agrees to indemnify the Company, its affiliates, and their employees, sub-contractors and suppliers against any such liability, whether in contract, indemnity, warranty, tort (including negligence), strict liability or otherwise resulting from such use.
The total liability of the Company on all claims of any kind (excluding claims for death or bodily injury) whether based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, resulting from the Contract, its performance or non performance or from any extension or expansion thereof (including remedial warranty efforts), shall in no case exceed the greater of (i) the Contract price on lump sum contracts, or (ii) the mutually agreeable estimated price if this Contract is being performed on a cost or unit type basis or (iii) $10,000. All such liability shall terminate upon the expiration of the Warranty Period.
Except in respect of death or personnel injury to the extent caused by the Company’s negligence, in no event, whether in contract, warranty, indemnity, tort (including negligence), strict liability or otherwise, shall the Company or its subcontractors or suppliers be liable for any loss of profit or revenue, loss of use of equipment, cost of capital, downtime costs, or consequential, incidental, indirect or exemplary loss or damage costs, expenses or any other such claims for compensation whatsoever which arise out of or in connection with the performance or breach of the Contract or the supply of the Goods or Services and the Company's entire liability under or in connection with the Contract shall not exceed the amounts set out in 8.2 above. The Purchaser will indemnify Company, its employees, sub-contractors and suppliers against any claims for any such damage from the Purchaser's customers.
This Clause 8 shall prevail over any conflicting or inconsistent provision contained in any of the documents comprising the Contract.
The furnishing of advice or other assistance not required by the Contract without separate compensation therefor will not subject the Company to any liability, whether in contract, indemnity, warranty, tort (including negligence), strict liability or otherwise.
In these conditions "INCOTERMS" means the INCOTERMS 1990 published by the International Chamber of Commerce. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of the said INCOTERMS shall have the same meaning in these conditions, but if there is any conflict between the provisions of the said INCOTERMS and these conditions, the latter shall prevail.
Where the Goods are supplied for export from the United Kingdom, the provisions of this Clause 9 shall (subject to any special terms agreed in writing between the Purchaser and the Company) apply notwithstanding any other provision of these conditions.
The Purchaser shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for payment of any duties on them.
Upon advance notice, employees of Purchaser will be admitted at reasonable times to Company’s premises for the purpose of witnessing inspection of the Goods to be furnished and determining status of production. Such access shall be limited to areas directly concerned with Purchaser’s Goods and shall not include restricted areas where development work or work of a confidential nature is being conducted. However, Company shall not be required to delay either completion of production work nor shipment to accommodate the inspector.
SITE SAFETY: HAZARDOUS MATERIALS
Purchaser will take all necessary precautions for the safety of Company’s personnel at the Site. This includes, but is not limited to, instruction on Purchaser’s safety practices, proper and safe handling of hazardous substances and protection of Purchaser’s personnel from exposure thereto, energizing of all power systems (electrical, mechanical and hydraulic) using a safe and effective lock-out tag-out procedure. If Company personnel require medical attention at the Site, local Purchaser facilities will be made available to Company personnel for such needs. The operation of equipment at the Site is the responsibility of Purchaser. If Purchaser requires or permits Company personnel to operate equipment at the Site, Purchaser shall indemnify and hold harmless Company, its employees and agents, from all expense and liability (including attorneys fees) incurred by or imposed upon Company, its employees and agents, based on injury to persons (including death) or damage to property resulting from operation of equipment at the Site by Company personnel.
If, at the Site or included with any Materials or equipment subject to work hereunder or provided or made available by Purchaser with respect to the Contract, Company encounters toxic substances, hazardous substances or hazardous wastes (as such terms may be defined in any statute or ordinance or regulations promulgated by any governmental authority of the United States, the country of the Site, or applicable jurisdiction) (collectively, the “Hazardous Materials”) which require special handling and/or disposal, Purchaser shall immediately take whatever precautions are required to legally eliminate such hazardous conditions so that the work under the Contract may safely proceed. If any such Hazardous Materials cause an increase in Company’s cost of or the time required for performance of any part of the work, an equitable adjustment shall be made in the price and schedule. Purchaser agrees to properly dispose of all Hazardous Materials produced or generated in the course of Company’s work at the Site. Purchaser shall indemnify Company for any and all claims, damages, losses, causes of action, demands, judgments and expenses arising out of or relating to (i) the presence of any Hazardous Materials which are present on the Site prior to the commencement of Company’s work or which are included with any Materials or equipment subject to work hereunder or provided or made available by Purchaser, or (ii) improperly handled or disposed of by Purchaser or (iii) brought on to the Site or produced thereon by parties other than Company.
LAW (United States, Florida)
The Contract shall be considered as a contract made in the United States and its validity and interpretation shall be determined under substantive law of the United States or the state of Florida.
Any claim, dispute, or controversy (whether in contract, tort, common law, statutory or otherwise) arising from our relating to this contact or the products or services sold pursuant to these terms and conditions of sale, the interpretation or application of these terms and conditions of sale of the breach, termination or validity thereof, shall be resolved exclusively and finally by binding arbitration in accordance with its International Arbitration Rules. The language of the arbitration shall be English. The number of arbitrators shall be one (1) The arbitration shall be conducted in Stuart, Florida.
The delegation or assignment by the Purchaser of any or all of its duties or rights hereunder without the Company's prior written consent shall be void. The Company may subcontract any part of its work, but will remain responsible to the Purchaser in accordance with these Terms and Conditions. Any representation, promise, course of dealing or trade usage not contained or referenced herein will not be binding on the Company. No modification, amendment, recission, waiver or other change in the Contract shall be binding on the Company unless assented to in writing by the Company's duly authorized representative. Any information, suggestions or ideas transmitted by the Purchaser to the Company in connection with the Contract are not to be regarded as secret or submitted in confidence except as may be otherwise provided in writing by a duly authorized representative of the Company.
The invalidity, in whole or part, of any of the paragraphs or Clauses of the Contract will not affect the remainder of such paragraph or Clause or any other paragraph or Clause.