Emerson Air Comfort Products

 

GENERAL TERMS AND CONDITIONS OF SALES

Air Comfort Products, a division of Emerson Electric Co. is herein referred to as the (“Seller”) and the customer or person or entity purchasing goods (“Goods”) from Seller is referred to as the (“Buyer”) These Terms and Conditions, any price list, quotation, acknowledgement or invoice from Seller relevant to the sale of the Goods and all documents incorporated by specific reference therein, constitute the complete and exclusive agreement governing the sale of Goods by Seller to Buyer. Buyer’s acceptance of the Goods manifest Buyer’s assent to these Terms and Conditions. Seller reserves the right in its sole discretion to refuse orders. Any different or additional terms in Buyer's purchase order or other Buyer documents are objected to.

 

1. PRICES AND TAXES: Unless otherwise specified in writing by Seller, Seller has the right to change the price for the Goods at any time prior to shipment. All prices are exclusive of taxes, transportation and insurance, which are borne by Buyer. Orders under $100.00 are subject to a $15.00 fee. All taxes or governmental charges (or increase in same) affecting Seller’s costs or which Seller is otherwise required to pay or collect in connection with the sale, purchase, delivery, storage, processing, use or consumption of Goods are for Buyer’s account and added to price.

 

2. TERMS OF PAYMENT: Unless otherwise specified by Seller, terms are net thirty (30) days from date of Seller's invoice in U.S. currency.  Seller shall have the right, among other remedies, either to terminate this 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, which other agreements Buyer and Seller hereby amend accordingly. In the event of payment default, all unpaid balances, obligations or indebtedness shall become immediately due and payable and subject to a monthly finance charge of 1-1/2%. All finance charges will not exceed local state regulations. Buyer shall be liable for all expenses, including attorneys' fees, relating to the collection of past due amounts. Should Buyer's financial responsibility become unsatisfactory to Seller, cash payments or security satisfactory to Seller may be required by Seller for future deliveries and for the Goods theretofore delivered.  If such cash payment or security is not provided, in addition to Seller's other rights and remedies, Seller may discontinue deliveries.

 

3. SHIPMENT AND DELIVERY: Deliveries are made F.O.B. Seller’s shipping point. Risk of loss, damage and liability pass to Buyer upon delivery to carrier. Shortages or damages must be acknowledged and signed for at the time of delivery. While Seller will use all reasonable commercial efforts to maintain the delivery date(s), all shipping dates are approximate and not guaranteed. Seller reserves the right to make partial shipments if the shipment of the Goods is postponed or delayed by Buyer for any reason. Buyer agrees to reimburse Seller for any and all storage costs and other resulting expenses. Freight and handling will be allowed on orders of $2,000 invoice net or more shipped to a Continental U.S. destinations (U.S. Territories, Alaska or Hawaii – Min. freight allowance are $5,000 invoice net) if Seller chooses carrier, except for products designated "F.O.B. shipping point, no freight allowed," in which case Buyer pays all freight charges. Drop-Ship Fees (max-$20.00 per order) will be assessed per the 2016 NXT Level Sales Policy Fee Schedule. Seller will not ship Goods outside the Continental U.S. without its prior written approval.

 

4. RETURNED GOODS: (a) Goods sold hereunder may be returned only with pre-approved written permission of Seller. If permission is granted, a Returned Goods Authorization (RGA) will be issued through a Seller Representative. When requesting RGA, include all Model Numbers / Serial Numbers / Date Codes shown on equipment. Goods must be Active SKU’s in current catalog, in original unmarked Emerson packaging and in sellable condition. (b) All returns must be made with transportation charges prepaid and are subject to Seller’s inspection prior to acceptance. If return is approved, Seller will charge 25% of the Buyer's net price for handling, repackaging, and refurbishing.

 

5. LIMITED WARRANTY: Subject to limitations in Section 6, Seller warrants that Goods manufactured by Seller will be free from defects in material and workmanship and meet Seller’s published specifications at the time of shipment under normal use and regular service and maintenance for a period of one (1) year from the date of shipment of the Goods by Seller, unless otherwise specified by Seller in writing. Products purchased from a third party for resale to Buyer (“Resale Products”) shall carry only the warranty extended by the original manufacturer.

 

THE WARRANTY PROVIDED HEREIN AND THE WARRANTY SET FORTH IN SECTION 7, ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY SELLER WITH RESPECT TO THE GOODS AND ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY AND 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 THE SELLER’S PRODUCTS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER’S USE OR PURPOSE.

 

These warranties do not extend to any losses or damages due to misuse, accident, abuse, neglect, normal wear and tear, Buyer’s negligence, unauthorized modification or alteration, use beyond rated capacity, or improper installation, maintenance or application. To the extent that Seller has relied upon any specifications, information, representation of operating conditions or other data supplied by Buyer or its agents to Seller in the Selection or design of the Goods and the preparation of Seller’s quotation, or in the event that actual operation conditions differ from those represented by Buyer and relied upon by Seller, 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 nonconformity with warranty 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.

 

6. LIMITATION OF REMEDY AND LIABILITY: THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER (OTHER THAN THE WARRANTY PROVIDED UNDER SECTION 7) SHALL BE LIMITED, AT SELLER’S OPTION, TO REPAIR, CORRECTION OR REPLACEMENT, OR REFUND OF THE PURCHASE PRICE UNDER SECTION 5.

 

SELLER SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE AND THE REMEDIES OF BUYER SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE.  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 PAID BY BUYER FOR 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, business interruption, loss of use, revenue, reputation and data, costs incurred, including without limitation, for capital, fuel, power and loss or damage to property or equipment.  It is understood 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 given and accepted at Buyer’s risk.

 

7. PATENTS AND COPYRIGHTS: Subject to the limitation and the second paragraph of Section 6, Seller warrants that the Goods sold, except as are made specifically for Buyer per Buyer’s specifications, do not infringe any valid U.S. Patent or copyright in existence as of the date of shipment.  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 cooperate fully with Seller and permit Seller to control completely the defense, settlement or compromise of any such allegation of infringement. Seller’s warranty as to use patents only applies to infringement arising solely out of the inherent operation according to Seller’s specifications and instructions (i) of such Goods, or (ii) of any combination of Goods acquired from Seller in a system designed by Seller.  In the event such Goods are held to infringe such a U.S. patent or copyright in such a suit, and the use of such Goods is enjoined, or the case of a compromise or settlement 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. In the event of the foregoing, Seller may at its option, cancel the agreement as to future deliveries of such Goods, without 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, fire, flood, weather; sabotage; strikes or labor disputes; civil disturbances or riots; government requests, restrictions, allocations, laws, regulations, order 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 or other performance may be suspended for an appropriate period or canceled by Seller upon notice to Buyer in the event of any of the foregoing, but the balance of the agreement shall otherwise remain unaffected 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 set forth in the preceding paragraph, 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.

 

9. CANCELLATION AND CHANGES: Seller may cancel this agreement at any time for any reason upon thirty (30) days written notice. Unless otherwise agreed in writing by Seller, Buyer may not cancel this agreement for any reason. 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 dates of delivery. 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.

 

10. ASSIGNMENT: Buyer shall not assign its rights or delegate its duties hereunder or any interest herein or any rights hereunder without the prior written consent of the Seller, and any such assignment without such consent, shall be void. Seller may assign its rights and delegate its duties hereunder.

 

11. BUYER’S COMPLIANCE WITH LAWS: In connection with the transactions contemplated by this Agreement, Buyer is familiar with and shall fully comply with all applicable laws, regulations, rules and other requirements of the United States and of any applicable state, foreign and local governmental body in connection with the purchase, receipt, use, transfer and disposal of the Goods. 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 Buyer are established or from which Goods and Services may be supplied, will apply to their receipt and use.  In no event shall Buyer use, transfer, release, import, export, Goods in violation of such applicable laws, regulations, order or requirements.

 

12. GENERAL PROVISIONS: These terms and conditions 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 shall be binding upon the Seller unless made in writing and signed on its behalf by a duly authorized Seller representative.  No conditions, usage of 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 or additional terms shall be applicable to this agreement by the Seller’s receipt, acknowledgement or acceptance of purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to those set forth herein. Any such modifications or additional terms are specifically rejected and deemed a material alteration hereof. If this document shall be deemed an acceptance of a prior offer by Buyer, such acceptance is expressly conditional upon Buyer’s assent to any additional or different terms set forth herein.  No waiver by other party with respect to any breach or default or of 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.  All typographical or clerical errors made by Seller in quotation, acknowledgement or publication are correctable. Validity and performance relating to the interpretation and effect of this agreement is governed by the law of the state of Missouri

 

13. DISPUTE RESOLUTION: In the event of any dispute INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, CLAIMS BASED IN TORT, NEGLIGENCE, PRODUCT LIABILITY, FRAUD, MARKETING, STATE OR FEDERAL REGULATIONS, ANY CLAIMS REGARDING THE ENFORCEABILITY OF THIS LIMITED WARRANTY, AND THE WAIVER OF CLASS ACTION TRIALS between Buyer and Seller, either may choose to resolve the dispute by binding arbitration, as described below, instead of in court. THIS MEANS IF EITHER BUYER OR SELLER CHOOSE BINDING ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR HAVE A JURY TRIAL. DISCOVERY AND APPEAL RIGHTS ARE LIMITED IN BINDING ARBITRATION.  Buyer and Seller agree that the proper venue if Arbitration is not so chosen by Buyer or Seller of all actions arising in connection herewith shall be only in the state of Missouri and the parties agree to submit to such jurisdiction. No action, regardless of form, arising out of transactions relating to the agreement, may be brought by either party more than two (2) years after the cause of action has accrued.  The U.N. Convention on Contracts for the International Sales of Goods shall not apply to this agreement.

 

CLASS ACTION WAIVER: BINDING ARBITRATION MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER BUYER NOR SELLER MAY JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHERS, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.


ADMINISTRATION OF ARBITRATION: The binding arbitration must be administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules and/or Supplementary Procedures for Consumer-Related Disputes (including proceedings to mitigate costs of travel). This binding arbitration is governed by the Federal Arbitration Act (“FAA”) (9 USC §1, et. seq.) and will govern the interpretation and enforcement. The binding arbitration shall be held at a location determined by AAA or at such other location as mutually agreed. In addition to the terms stated above, the following will apply to the binding arbitration: (1) the arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including any claim that all or any part of this Agreement is void or voidable; (2) the arbitrator shall apply Missouri law consistent with the FAA.


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