1. TERMS OF PAYMENT – OPEN ACCOUNT
Subject to credit approval, an invoice covering materials and services rendered will be mailed to you. The invoice is due net 30 days.
Accounts not paid within thirty (30) days are overdue. A late charge of 1 1/2% per month will be charged on all accounts not paid within thirty (30) days of the invoice date. All payments received after the imposition of late charges shall be applied first to the late charges which have been assessed on the account balance thereafter remaining, and this application of payments shall prevail unless otherwise agreed to in writing by an officer of The Electric Motor Repair Co., Inc. Should your account be referred to an attorney for collection after it is considered “overdue”, you will be charged for all collection expenses, including attorney’s fees equal to 25% of the account balance, plus any court costs related to the collection process.
Subject to the prior express approval of the Electric Motor Repair Co., Inc., payment may be made using a Visa or Master Card. Charged sales must meet our published minimum. There will be an additional $25.00 service charge for any checks which are returned after presentment.
It is expressly understood and agreed that buyers orders include all of E.M.R.’s terms and conditions of sale printed here-on. No Quotation of E.M.R.’s shall bind or be valid against E.M.R. until an order based there-on is accepted in writing by an authorized representative of E.M.R. All such orders will be deemed executed by E.M.R. Any additional or different terms or conditions set forth by the Buyers order or other Communications are objected to by E.M.R. and shall not be effective or binding unless agreed to in writing by an authorized representative of E.M.R. Quoted prices will be honored only for the time set forth in E.M.R.’s written quotation. Materials and goods must be accepted or rejected within 10 days of delivery. Use of the materials and goods constitutes acceptance. Estimates are good for 30 days unless otherwise agreed to. Estimate is a ballpark price and may vary + or – 10%.
E.M.R. will not be responsible for loss, delay or breakage after delivery to the job site having received “in good order” receipts from the Carrier or directly from the Buyer. Seller shall incur no liability for damage, shortages or any other cause alleged to have occurred or existed at or prior to delivery of the equipment to the job site or carrier unless full details are entered on Buyer receipt document.
Except as otherwise specified in this document, title will pass and delivery will be F.O.B. point of shipment. Risk of loss or damage will pass to buyer upon shipment.
Shipping dates are estimates which are not guaranteed and are based upon prompt receipt of all necessary information. E.M.R. shall in no event be liable for delays caused by fire, Acts of God, Strikes, Labor Difficulties, Acts of Government or Military Authorities, delays in transportation or in procurement of materials or services, or causes of any kind which are beyond E.M.R.’s reasonable control. E.M.R. shall notify Buyer of any material delay excused by this paragraph and will specify the revised shipment date as soon as practical. In the event of any such delay, Buyer shall not terminate the order and the date of shipment shall be extended for a period to the time lost by reason of the delay.
5. EMR’s GUARANTEE
E.M.R. guarantees their repairs against defective workmanship or material as follows:
- Rewind for one year.
- Mechanical repairs in the shop or in the field, for 90 days.
- ANY “ONLY” JOB AS REQUESTED BY THE BUYER – NONE
- The guarantee period begins on the date the equipment is delivered or, in the case of on site service, the date work is completed.
- Failures due to misuse, improper application, excessive load, improper connections or improper voltage are not covered under this guarantee.
- EMR’s guarantee is applicable only to the extent of the work performed and material used in this repair. Problems that may develop after the item is returned to Service, that are different from the ones corrected at the time of this repair will not be covered by this guarantee.
- THE GUARANTEE SET FORTH ABOVE IS EXCLUSIVE AND NO OTHER GUARANTEE (OTHER THAN THOSE OF THE MANUFACTURER, IF APPLICABLE), WHETHER WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. E.M.R. PROVIDES NO GUARANTEE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- E.M.R. guarantees that all parts furnished hereunder will be free of defects in material and workmanship at the time of installation as per manufacturers warranty, if any. IN THE EVENT OF E.M.R.’S BREACH OF GUARANTEE, THE BUYER’S EXCLUSIVE REMEDY SHALL BE THAT E.M.R. WILL (1) MAKE ALL NECESSARY ADJUSTMENTS, REPAIRS AND REPLACEMENTS SUBJECT TO THE TERMS AND CONDITIONS OF THE AGREEMENT AND (2) REPLACE ANY PARTS WHICH WERE INSTALLED HEREUNDER AND FOUND TO BE DEFECTIVE AT THE TIME OF INSTALLATION.
6. LIMITATION OF LIABILITY
BUYER AGREES TO HOLD EMR HARMLESS AND HEREBY RELEASE EMR FROM ANY AND ALL (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES, EVEN IF EMR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) DAMAGES, LIABILITIES, CLAIMS, LOSSES OR EXPENSES WHATSOEVER RESULTING FROM, BUT NOT LIMITED TO, INADEQUACY OF THE EQUIPMENT FOR ANY PURPOSE OR BY ANY DEFECT THEREIN OR BY ANY DELAY IN PROVIDING EQUIPMENT, LOSS OF USE, LOSS OF BUSINESS, LOSS OF PROFITS, OR OF PLANT, EQUIPMENT OR PRODUCTION, LOST MAN HOURS OR ANY ADDITIONAL LOSSES/COSTS ARISING OUT OF OR IN CONNECTION WITH THE SERVICE BY ANY EMR SERVICE TECHNICIAN OR REPRESENTATIVE REQUIRED, WITHOUT LIMITATION, TO CORRECT OR REPAIR ANY MALFUNCTION IN THE EQUIPMENT, EVEN IF EMR HAS BEEN ADVISED OF SUCH DAMAGES.
Buyer shall reimburse seller for any sales, use, occupation, excise or any other tax arising out of the Sale of products or services to the Buyer, upon receipt of E.M.R.’s invoice for the amount of the tax.
Any orders may be terminated by Buyer only upon written notice prior to shipment and upon payment of reasonable and proper termination charges plus 15% of the contract price or forfeiture of deposit at E.M.R.’s option. Such reasonable and proper termination charges may include, but are not limited to all costs associated with the order which have been incurred up to the date of receipt of the written termination, plus cost of terminating orders. In the event any proceeding is brought against Buyer, voluntarily or involuntarily under the bankruptcy or any insolvency law, E.M.R. shall be entitled to cancel any order then outstanding at any time.
9. PARTS RETURNS/RESTOCKING CHARGES
All returns must have authorization from E.M.R. before returning. Material returned for any reason other than a warranty claim will be subject to a handling charge. Transportation charges must be prepaid. Under no circumstances, will goods be accepted for return after 60 days from the date of shipment. Electronic parts are not returnable.
10. SECURITY INTEREST
Upon acceptance of Buyer’s order, Buyer hereby grants E.M.R. a security interest in all products sold to it by E.M.R. and all proceeds of resale thereof by Buyer, including without limitation, all accounts receivable, to secure payment of the purchase price of such goods. Pursuant to such security interest, E.M.R. shall at all times have the right of a secured party with regard to such products and the proceeds thereunder of the Uniform Commercial Code or any similar statute, as enacted in the state or states in which such products, merchandise and goods remains with Seller until purchase is paid in full.
In addition to the provisions above. E.M.R. shall have all remedies afforded by the Uniform Commercial Code. All remedies of E.M.R. hereunder shall be cumulative.
E.M.R. guarantees that all parts furnished hereunder will be free of defects in material and workmanship at the time of installation as per manufacturers warranty, if any. IN THE EVENT OF E.M.R.’S BREACH OF GUARANTEE, THE BUYER’S EXCLUSIVE REMEDY SHALL BE THAT E.M.R. WILL (1) MAKE ALL NECESSARY ADJUSTMENTS, REPAIRS AND REPLACEMENTS SUBJECT TO THE TERMS AND CONDITIONS OF THE AGREEMENT AND (2) REPLACE ANY PARTS WHICH WERE INSTALLED HEREUNDER AND FOUND TO BE DEFECTIVE AT THE TIME OF INSTALLATION.
12. SOLICITATION OF EMPLOYEES OF THE ELECTRIC MOTOR REPAIR COMPANY
Buyer shall not solicit Employees of EMR to terminate their relationship or employment with EMR and to join Buyer in any relationship or employment with Buyer. Further, Buyer shall not hire or retain in any type of relationship any Employee of EMR for a period of twenty-four (24) months after EMR has performed all work for which Buyer contracted with EMR to be performed. Because the parties hereto recognize that quantification of EMR’s damages for the violation of this Paragraph by the Buyer may be difficult, Buyer covenants and agrees that if Buyer violates the provisions of this Paragraph, Buyer shall pay to The Electric Motor Repair Company, within ninety (90) days of each violation of this Paragraph, a sum equal to one year’s compensation of each such Employee of EMR. (“One year’s compensation” shall be determined by averaging the Employee’s compensation for the last three (3) months prior to termination of the Employee and multiply said average by twelve (12)).
13. UNIFORM COMMERCIAL CODE
This agreement shall be governed by the Uniform Commercial Code as adopted by the State of Maryland and is effective and in force on the date of this agreement. The agreement shall be deemed entered in the County of Baltimore which shall be construed under and in accordance with the Uniform Commercial Code.
Buyer shall pay all of E.M.R.’s expenses, including reasonable attorney’s fees, incurred by E.M.R. in connection with any breach by Buyer of this agreement, whether or not a lawsuit is filed.
No agent, employer or representative of E.M.R. has any authority to bind E.M.R. to any affirmation, representation or guarantee concerning the goods sold under this agreement, unless an affirmation, representation or guarantee made by an agent, an employee, or representative, is specifically included within this written agreement. If not, such affirmation, representation or guarantee has not formed a part of the basis of this bargain, and shall not in any way be enforceable or binding upon E.M.R. or its agents, employees or representatives. (*) ANY SUCH AFFIRMATION GUARANTEE MADE BY ANY AGENT OF E.M.R. WHICH IS NOT EXPRESSLY AND IN WRITING MADE A PART OF THIS AGREEMENT IS EXPRESSLY DISCLAIMED.
This writing by the parties is the total agreement of the parties and is intended as the final expression of their agreement. This writing is the complete and exclusive statement of the terms thereof, and any and all agreements entered into prior to or contemporaneously with the execution of this agreement are excluded, whether oral or in writing.
This agreement can be modified or rescinded only by a writing signed by both parties or their duly authorized agents.
The failure of E.M.R. to enforce any rights under this contract of sale shall not be construed as a waiver of such rights or any other rights under the contract of sale.
All clerical errors are subject to correction. The invalidity, in whole or in part, of any of the foregoing paragraphs will not affect the remainder of such paragraph or any other paragraph of this agreement.
EMRTCOS Revised December, 2013