STANDARD TERMS AND CONDITIONS OF SALE FOR EQUIPMENT & INSTALLATION SERVICES
- ACCEPTANCE. These terms and conditions of sale supersede all previous editions – and may be updated from time to time as posted to the EDI website – and apply to all documents made and orders accepted by EDI and acceptance of the goods by the Purchaser is acknowledgement of acceptance of the most recent EDI terms and conditions of sale. No order for EDI’s products or services shall be binding upon EDI until accepted in writing by an authorized official of EDI or by shipment or other performance of such order. Any order shall be subject to these terms and conditions, which in concert with any supply contract shall constitute the entire agreement between the parties, and acceptance shall be expressly conditioned on assent to such terms and conditions by Purchaser, which assent shall be deemed given unless Purchaser shall expressly notify EDI to the contrary within five (5) days after receipt of any acknowledgment of order. No understandings or agreements which differ from, modify, or add to these terms and conditions and no additions, deletions or modifications proposed by Purchaser in its printed forms or otherwise shall bind EDI regardless of whether nor not such understandings, agreements, additions, deletions, or modifications would materially alter the terms hereof, unless made in writing and signed by both parties. All purchase orders or contracts must be approved and accepted by EDI. Stenographic and clerical errors are subject to correction.
- CANCELLATION, SUSPENSION OR RETURNS. No accepted offer may be cancelled or altered by Purchaser except upon terms and conditions accepted by EDI in writing, and no changes to this document will be binding unless set forth in writing and manually signed by EDI. This offer may be revoked by EDI at any time before it is accepted by Purchaser and will automatically expire 30 calendar days after its date if Purchaser has not accepted it before then. Neither Purchaser of this offer nor any conduct by EDI (including but not limited to shipment of goods) will oblige EDI to sell to Purchaser any quantity of goods in excess of the quantity that Purchaser has committed to purchase from EDI at the time of such acceptance or conduct. Requests to cancel, suspend or return a PO or portion thereof shall not be accepted without prior written approval from Company. All Goods returned to Company must be in full containers or cases, unopened and in the same conditions as when delivered. All costs to return are borne by the Purchaser and a 15% fee may be charged at Company’s option. Costs incurred by Company of all work completed, or goods purchased in execution of Purchaser PO at time of approved cancellation will be responsibility of Purchaser. The Purchaser shall indemnify the Company against any loss related to cancellation, suspension or returns.
- PRICES; INVOICING. All prices are EXW, EDI Facility and stated in USD unless otherwise noted in the offer. The Company may make partial billings of the contract price as various components of the equipment are shipped. If production or shipment of completed goods, or other Company performance, is delayed by Purchaser, Company may immediately invoice, and Purchaser will pay, the percentage of the purchase price corresponding to the percentage of completion. International Orders: When the Company manufactures equipment to meet schedules established by the Purchaser, the Company reserves the right to invoice the Purchaser for the goods when ready for shipment.
- PAYMENT TERMS. Unless otherwise specified herein, payment terms are as set forth in the attached purchase agreement. Amounts past due are subject to a service charge of 1.5% per month, 18% per annum, on the unpaid balance. Company reserves the right, among other remedies, to delay or suspend further shipments or require full or partial cash payment in advance until all sums due have been paid. Purchaser shall be liable for all costs and expenses incurred by Company in collecting any overdue amounts, including without limitation reasonable attorneys’ fees. Any pro-rata payments required hereunder shall be made as shipments are made. Once the Project is awarded, the Company and Purchaser will agree and finalize a revised/applicable Project schedule with payment milestones. If the approval to proceed to each milestone is not given within 14 days of the issuance of the required submittal or notification from the Company to the Purchaser, the Company reserves the right to adjust the sell price of this Purchase Order or add a surcharge based on actual increases incurred from its Suppliers due to the delay in the Project schedule.
- CREDIT APPROVAL. All payment terms set forth in this document are subject to Company’s approval of Purchaser’s credit, in Company’s discretion; if such approval is withheld, payment will be due in advance of Company’s performance. Performance of any contract by the Company is contingent upon Purchaser credit approval. Credit may be waived in lieu of a project materials payment bond. A materials payment bond supplied to the project Owner or Engineer by the Purchaser is acceptable. EDI reserves the right to hold shipment on delinquent accounts.
- DELIVERY, STORAGE. Unless otherwise agreed to by Company in writing, all shipments are EXW Company’s warehouse. Regardless of shipping terms or freight payment, Purchaser will bear all risk of loss or damage in transit. Company reserves the right to make delivery in installments, unless otherwise expressly stipulated herein; all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment will not relieve Purchaser of its obligations to accept remaining deliveries.
Shipping dates are estimates only and are subject to Company’s lead time policy. Company shall make all reasonable efforts to have Goods delivered to Purchaser on or about the date or within the time frame of the Order, but Company shall not be liable for any failure or delay in delivery for any reason. Statements as to expected date of hardware shipment represent the Company’s best judgment, but shipment on those dates is not guaranteed. The Company will endeavor to meet the scheduled date(s) but cannot be held responsible for its failure to do so for causes beyond its reasonable control and in no event shall it be liable for any loss or damage resulting from its failure to deliver within the time specified herein. The Purchaser hereby waives all claims to damages caused by delay in shipment or delivery of hardware. Great care is taken in packing Company’s Product. Company cannot be held responsible for damage after having received “in good order” receipts from the transportation company. All claims for loss and damage must be made by Purchaser to the carrier.
Purchase orders issued by Purchaser and placed with Company are irrevocable and Purchaser is contractually obliged to take delivery and pay for all Goods ordered and supplied or made available by Company pursuant to such purchase order. If the Company does not receive forwarding instructions sufficient to enable it to dispatch Goods within fourteen (14) days after notice to Purchaser that such Goods are ready, Purchaser shall be deemed to have taken delivery from such dates and Company will store all items at Purchaser’s risk and expense, and will invoice Purchaser for any remaining unbilled contract price plus one-half percent (½%) of the total contract price for each month the shipment is delayed and a fee of One Hundred Dollars ($100.00) per day for storage and maintenance. Unless otherwise agreed upon by the parties in writing, if Purchaser does not accept delivery or collect goods from Company when made available at the agreed delivery point in accordance with the Contract, Purchaser also will reimburse Company for any demurrage, transport or futile delivery costs incurred by Company.
- TAXES. Prices do not include any state or local sales, use, excise, or other taxes or assessments or import or export duties imposed on the goods provided in the document unless explicitly stated to be included in the document. The Purchaser is responsible to pay and/or report all of the above referenced taxes.
- LIMITED WARRANTY. Contracts for purchase of equipment and services accepted by EDI exclude any process or performance warranties related to system design. Company warrants title and that the Goods provided in the document shall conform to the Company’s standard sales specifications in effect at the time of manufacture or the specifications agreed by the parties in writing and contained or referenced in the Purchase Order. Additionally, no biological or process performance warranties are expressed or may be implied by the participation of EDI in this contract – specifically, to the maximum extent permitted by law, Company makes no other representation or warranty of any kind, and hereby expressly disclaims all other representations or warranties, express, implied, statutory or arising from a course of dealing, usage of the trade, including without limitation any representation or warranty as to merchantability, fitness for a particular purpose, or any other matter with respect to the goods, whether used alone or in combination with any other goods, processes, or materials or services. Company’s sole liability and Purchaser’s sole remedy for breach of warranty are specifically limited to the repair of the goods (or re-performance of services when applicable) or the cost thereof where Company fails to perform such repair necessitated by a breach of warranty, and such liability and remedy are exclusive of all other liabilities and remedies. Should these remedies be found inadequate or to have failed of their essential purpose for any reason whatsoever, Purchaser agrees that the return of the amount paid by Purchaser to Company for the purchase of the goods which fail to conform with the warranties shall be considered a fair and adequate remedy and prevent the remedies from failing of their essential purpose. Biological or process performance warranty for systems supplied by the Company shall be specifically and independently detailed and signed as a separate contract by an authorized Officer of the Company.
- LIMITATION OF LIABILITY. To the extent permitted by law and not withstanding any provision to the contrary in the contract, in no event shall Company be liable and Purchaser waives all claims against Company for consequential, incidental, indirect, exemplary, punitive or special damages, whether or not based upon Company’s negligence or breach of warranty or strict liability in tort or any other cause of action arising, directly or indirectly, in respect to the product or services covered hereunder, or the use or failure thereof, including, but not limited to, damages for loss of production, loss of profits, loss of business revenues, loss of capital, failure to realize expected profits or savings, overhead costs, loss by reason of service interruption or increased expense of operation, loss of goodwill, loss of reputation, loss of value in any intellectual property, damages or liquidated sums payable pursuant to other agreements or to other third parties, other economic losses, or injury to persons or property. In any event, Company’s maximum liability shall not exceed the purchase price of the product(s) and services furnished by Company hereunder that gave rise to any liability. The provisions of this paragraph shall survive the expiration or termination of this agreement. This disclaimer shall remain in full force and effect even in the event that Purchaser’s sole and exclusive remedy shall fail of its essential purpose.
- GOVERNING LAW. Any document for equipment supply made by the Company as well as any contract between the Company and the Purchaser are deemed to be executed at Columbia, Missouri, USA, subject to correction for typographical or mathematical errors and governed by Missouri law.
- ARBITRATION. Any controversy or claim arising out of or relating to this contract/order or breach thereof will be finally settled by arbitration in accordance with the Rules of Commercial Arbitration of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction over the controversy or claim in the State of Missouri. Arbitration proceedings shall occur in the county of residence of Company in the State of Missouri.
- FORCE MAJEURE. Shipments or deliveries may be totally or partially suspended or delayed by Company during any period in which the Company may be prevented or hindered from manufacture, delivery, or supply through any circumstances outside Company’s reasonable control or where manufacturing, delivery or supply is rendered materially more expensive by such circumstances. Circumstances beyond Company’s reasonable controls shall include but are not limited to governmental regulation, flood, wind, labor disputes, accident, power or water shortage, accidents or breakdowns or failures of plant or machinery, transportation, fires, strikes, war, reduced supply of fuel or raw materials, embargo, riot, act of God, or any other cause or causes, whether of like or different nature, beyond the reasonable control of Company. Company shall not incur any liability to Purchaser in respect of such suspension or delays. Purchaser shall bear any costs incidental to Purchaser’s delay or failure in acceptance of Product or any other performance.
- SPECIAL HAZARDS. Unusual conditions such as rock, poor foundation soils, excess water or other unusual site or safety conditions are not covered by this standard Company document. Extra costs emanating from unusual site or safety conditions shall be negotiated with written agreements developed at or subsequent to the time of discovery and prior to further work being completed by EDI.
- INSPECTION; ACCEPTANCE. Purchaser shall promptly examine the Goods for any damage or shortage or failure of the Goods to comply with the Company’s standard sales specifications or the specifications contained in or referenced in the Contract. Claims will not be allowed unless written notice specifying the nature and extent of the defect, damage or shortage is received in the Company’s office within fourteen (14) days from unloading – unless the defect, damage or shortage is of such a nature that it would not be reasonably discovered until the material is assembled and/or erected as a finished product, then the fourteen (14) days will begin from the date of commencement of assembly and/or erection. All claims for damage in shipment, or shortage of Goods received, shall be deemed waived unless made in writing and received by Company.
- INSURANCE. The Purchaser agrees to provide and maintain for the benefit of the Company adequate insurance for the equipment herein specified from the time of its shipment from EDI until paid for in full and the Purchaser agrees to assume all loss over and above that compensated for by such insurance. The Purchaser shall procure and pay for all public liability insurance during the installation of any EDI provided equipment.
- ATTORNEY FEES. For any suits brought or retainage paid to attorneys to collect any part of the purchase price or to enforce any provision herein, the Purchaser will pay EDI attorney fees and related expenses including an administrative fee equal to the attorney fees.
- BANKRUPTCY, RECEIVERSHIP, OR INSOLVENCY PROCEEDINGS. Should bankruptcy, receivership or insolvency proceedings be instituted by or against the Purchaser or should the Purchaser make an assignment in favor of creditors, the unpaid balance of the purchase price shall immediately become due and payable at the option of the Company. Notwithstanding other arrangements to the contrary, the Company shall be free to enter premises where equipment for which the Company has not been fully paid may be located and remove said equipment as its property without prejudice to any further claims on amounts of damage which the Company may suffer from any cause.
- PROMISSORY NOTE. Acceptance of a promissory note or other evidence of debt for any part of price shall not be construed as payment.
- PATENT INFRINGEMENT. Any interference with Purchaser’s use of equipment supplied by the Company on the grounds that such use constitutes an infringement of any patent shall impose no liability on the Company.
- SPARE OR POTENTIAL WARRANTY PARTS. If spare parts or potential warranty parts are required immediately, EDI may ship those parts subject to the following limitations: a) Purchaser agrees to pay for additional components or spare components including special freight charges. Reimbursement will be issued as a credit to the Purchasers account in the event potential warranty parts are verified as actual warranty defects and b) Contract price adjustments or price adjustments on additional or spare components are subject to EDI approval and original contact terms.
- INDEMNIFICATION. Purchaser will indemnify and hold harmless Company from and against any and all losses, liabilities, damages and expenses (including but not limited to Attorney’s Fees and other costs of defense) that Company may incur as a result of any claim, other than a claim for the remedies provided for in the EDI standard warranty, by Purchaser or Purchaser’s customers or by any third party arising out of or relating to the goods or services sold hereunder, including but not limited to any such claim based upon the negligence of company in designing, manufacturing, performing and/or selling such goods or services, unless such losses, liabilities, damages or expenses are ultimately determined to be attributable solely to the willful misconduct of seller.
- WAIVER. No failure to exercise or any delay or omission in exercising any right, power or remedy by Company operates as or constitutes a waiver. A single or partial exercise by Company of any right, power or remedy does not preclude any other or further exercise by it of that or any other right, power, or remedy. A waiver is not valid or binding on Company unless made in writing.
- SEVERANCE. If any provision of these Terms and Conditions or its application to any person or circumstances is or becomes invalid, illegal, or unenforceable, the provision shall so far as possible be read down to such extent as may be necessary to ensure that it is not invalid, illegal, or unenforceable. If any provision or part of it cannot be so read down, the provision or part of it shall be deemed void and severable and the remaining provisions of these Terms and Conditions shall not in any way be affected or impaired.
- CONFIDENTIALITY. Purchaser acknowledges that the information and processes utilized by Company in the design, manufacture, and supply of its products and systems are confidential and proprietary to the Company. Purchaser agrees to treat as confidential and proprietary any such information or processes, including, but not limited to, design information or data, proposals, software, schematics, drawings, operational and maintenance manuals, testing procedures or other similar technical information (“Confidential Information”) provided by the Company in connection with the supply or installation of products or systems hereunder, and will, at a minimum, protect any such confidential Information in a manner commensurate with the measures taken to protect Purchaser’s own confidential or proprietary information. The Company retains all rights, titles, and interests in all such Confidential Information and Purchaser shall not use or otherwise disclose to any third party any such Confidential Information except to the extent authorized by the Company in writing.
- MECHANICAL WARRANTY and/or LABOR WARRANTY. As provided.