TOLL FREE 800.325.7175|essmueller@essmueller.com Facebook Flickr YouTube Twitter ABOUT PRODUCTS LITERATURE CONTACT HOME The Essmueller Company – General Terms & Conditions of Sale 1. GENERAL: These General Terms and Conditions of Sale (“Terms and Conditions”) together with the Request for a Quote, Essmueller’s Quote, the Purchaser’s Purchase Order, Final Accepted Drawings, Specifications and Essmueller’s Invoice constitute the sales contract (“Contract”) between The Essmueller Company (hereinafter Essmueller) and the Purchaser, unless changed by a written agreement executed by a corporate officer of Essmueller and Purchaser. Purchaser’s issuance of a Purchase Order to Essmueller constitutes Purchaser’s acceptance of these Terms and Conditions. The documents composing the Contract are intended to be complementary. What is set forth in any one document is binding as if set forth in each document, and it is intended that the terms of such documents be read together giving effect to all. If there is a conflict between any documents constituting a part of the Contract, that conflict will be resolved in accordance with the following order of precedence, with items higher in the list prevailing over items lower in the list: Contract Contract Amendment Terms and Conditions Accepted Purchase Order Final Accepted Drawings Quote Specifications Request for a Quote Notwithstanding the foregoing, if the irreconcilable provisions pertain to the rights, duties or obligations of Essmueller and the Purchaser, then these Terms and Conditions shall govern. 2. ALTERATION OF TERMS: None of the Terms and Conditions contained in the Contract may be waived, altered, modified, or added to unless such waiver, alteration, modification or addition is in writing and signed by an authorized representative of Essmueller and Purchaser. Except as set forth in the previous sentence, each shipment from Essmueller to the Purchaser shall be only upon the Terms and Conditions set forth in the Contract, notwithstanding any terms and conditions that may be contained in any acknowledgment, invoice, or other form of Purchaser’s, and notwithstanding the Purchaser’s act of accepting or paying for any shipment or any similar act of the Purchaser. 3. PURCHASE ORDER: Upon receipt and acceptance of a Purchase Order, Essmueller shall fabricate and deliver the goods (“Equipment”) described therein. All Purchase Orders submitted are subject to these Terms and Conditions of sale. Any Purchase Order received by Essmueller may be rejected by Essmueller. 4. PRICES AND ACCEPTANCE: All quotations are valid only for thirty (30) days from date of quotation. Purchase Orders shall only be accepted in writing by Essmueller at its office in Laurel, Mississippi, and are subject to these Terms and Conditions. Essmueller reserves the right to decline any Purchase Order. All quotations are based on Specifications received from Purchaser and do not constitute final prices until Final Accepted Drawings are signed and approved by Purchaser and final costs are determined. Additional charges may be assessed due to changes in Specifications or requirements from those quoted and for any special services or markings, special boxing, cartage, transfer, overtime (when authorized by Purchaser), financing, or other special requirements. Freight charges shall be paid in advance by Purchaser. 5. TERMS OF PAYMENT: For accounts without an established credit history and for export orders, our terms are payment-in-advance. For approved open accounts, our terms are as follows: Orders up to $150,000 Net 30 days Orders $150,000 to $500,000 25% Down and balance net 30 days Orders over $500,000 50% Down and balance net 30 days Essmueller reserves the right to impose a service charge of 1.50 % per month, 18% per annum, on all invoices unpaid beyond thirty (30) days from the date of invoice. In the event a Purchaser’s account should be become delinquent, Essmueller shall have the right to require either one of or all of the following: (i) full payment of Purchaser’s account; or (ii) delivery of satisfactory security prior to fabricating or shipment of any Equipment pursuant to any Purchase Order accepted by Essmueller; (iii) or stopping manufacture of any Equipment pursuant to any Purchase Order accepted by Essmueller. If Purchaser fails to make payment or otherwise fails to comply with any provision of the Terms and Conditions, Essmueller may at its option, in addition to other remedies, at law or in equity, hold or cancel any unshipped portion of an order or pending orders. Purchaser agrees to pay all costs and expenses incurred in collecting or attempting to collect past due accounts, including reasonable attorney fees, expenses and court costs. All monies received from Purchaser shall be first applied to payment of collections costs; then the balance, if any, to interest; and the remaining balance to the principal of the account owing 6. SET-OFF: Essmueller may set off against any amount payable to the Purchaser under the Contract any claim or charge it may have against Purchaser. 7. SPECIFICATIONS: Specifications and fabrication instructions (“Specifications”) are in accordance with directions of Purchaser and full responsibility for their correctness, sufficiency and completeness is assumed by Purchaser. Essmueller shall not be required to fabricate any Equipment by any communication of Specifications unless transmitted in writing by Purchaser to Essmueller. Specifications include, but are not limited to fabrication instructions, drawings, samples, descriptions, characteristics of material to be handled, equipment dimensions, site and building dimensions as well as any other limitations or factors of any kind that might be pertinent to the intended use, installation and operation of the equipment. Any technical advice furnished by Essmueller with respect to the selection or use of products is given without charge and Essmueller assumes no obligation or liability whatsoever for the advice given or the results obtained. Purchaser acknowledges and fully understands that Essmueller is not providing any engineering services or advice and that Purchaser is not relying upon Essmueller for engineering services or advice. Purchaser acknowledges, covenants and warrants that the Specifications furnished by Purchaser and all such advice is given and accepted at Purchaser’s sole risk and Purchaser agrees to indemnify and hold Essmueller harmless from any and all losses and claims for death, personal injury or property damages related in any manner to the Specifications. 8. WARRANTY: Essmueller warrants all Equipment fabricated by it to be free from defects in material and manufacture at the time of shipment for a period of one (1) year from the date of shipment. During the warranty period Essmueller’s obligation shall be limited to repair or replacement, and not installation, of parts it determines to its satisfaction to be defective. Decision on repair or replacement and decision on the method and extent of repairs rests solely with Essmueller. No Equipment shall be returned to Essmueller for repair under warranty without obtaining prior written permission from Essmueller. Essmueller will be responsible for any shipping charges related to warranty claims, Purchaser shall be liable for all other shipping charges. The cost and expense for removal of defective Equipment and re-installation of required or replaced equipment shall be at Purchaser’s cost and expense. In order to be covered by this Warranty, the Equipment must be properly installed according to accepted industry practices. This warranty shall not apply to any Equipment which has been subjected to misuse, neglect or accident, or has been altered or tampered with, or if corrective or repair work has been done thereon without Essmueller’s specific written consent. No allowances will be made for such corrective or repair work done without such consent. Improper lubrication, deterioration by chemical action or by improper storage, and wear and tear caused by the presence of abrasive materials, do not constitute defects in the Equipment. All warranty claims must be submitted in writing. Equipment fabricated by others, and included in Essmueller’s proposal, is not warranted in any way by Essmueller but carries only the manufacturer’s warranty, if any. Essmueller shall not be liable to Purchaser for any claim arising from a warranty dispute between the Purchaser and the equipment manufacturer. Essmueller assumes no liability for expenses incurred for repair or replacement of Equipment that is not in accordance with the provisions of this Warranty. Essmueller’s obligation hereunder shall be conditioned upon Essmueller receiving written notice of any alleged defect within ten (10) days after its discovery. THIS WARRANTY STATES ESSMUELLER’S ENTIRE AND EXCLUSIVE LIABILITY AND THE PURCHASER’S EXCLUSIVE REMEDY AND ESSMUELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES OF ANY SORT, EXPRESS OR IMPLIED, EXCEPT THAT OF TITLE, AND ESSMUELLER HEREBY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF TRADE AND FITNESS FOR A PARTICULAR PURPOSE, NOTWITHSTANDING ANY PURPORTED TERMS AND CONDITIONS CONTAINED IN ANY DOCUMENT PREPARED BY COMPANY IN CONNECTION WITH THIS SALE. ESSMUELLER SHALL NOT BE LIABLE FOR CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFITS. 9. INDEMNIFICATION: Purchaser agrees to indemnify, defend and hold harmless Essmueller, its affilaites, and the shareholders, directors, officers, employees, agents, successors and assigns, (collectively the “Indemnified Parties”) from and aginst any and all losses, claims, damages, injuries, liabilities, taxes, fines, penalties, costs and expense, including attorneys’ fees and court costs, incurred or suffered by any of the Indemnified Parties directly or indirectly arising out of, relating to, or resulting from (a) Purchaser’s unloading, storing, handling, installing, packaging, processing, fabrication, or use of Essmueller’s products, whether negligent or not (b) Purchaser’s installation of or failure to install any necessary safety or protective devices, whether negligent or not or (c) any negligence, act or omission of Purchaser, its subcontractor employees, agents and anyone for whom Purchaser or its subcontractor may be legally liable. 10. FORCE MAJUERE: Scheduled completion, shipping, and delivery dates are estimates only and are based upon prompt receipt of all necessary information from Purchaser. Essmueller shall not be liable for any failure or delay in fabrication, shipment or delivery of an order resulting from any cause beyond Essmueller’s control, including but not limited to, acts of God, factory conditions, accidents, explosions, fires, strikes or labor disputes, labor and material shortages, terrorism, civil or military authority, inability to obtain raw materials or component parts due to national shortage, mandatory priority and/or other causes beyond Essmueller’s knowledge and control. Essmueller reserves the right to manufacture and ship any items in advance of the estimated dates, unless expressly forbidden by the Purchaser in writing at the time of placing the order. Unless stated otherwise, delivery is considered to be made and title will pass to Purchaser F.O.B. shipping point. Expense and risk of loss shall also pass to Purchaser F.O.B. shipping point. In the event Purchaser requests a delay in shipment of an order, Purchaser agrees to pay Essmueller reasonable storage and handling costs associated with such delay. 11. CANCELLATION OR MODIFICATION: Purchaser may not cancel or modify any accepted Purchase Order of Equipment or parts without Essmueller’s prior written consent. Essmueller may, at its sole discretion, hold the Purchaser liable for any costs or expenses incurred or commitments made by Essmueller pertaining to any accepted Purchase Order which Essmueller consents to cancel or modify at Purchaser’s request, either before or after approval of Final Drawings. Any modification agreed to by Essmueller and Purchaser may result in an increase in price and/or an increase in the time of fabrication and delivery and must be agreed to by Essmueller and Purchaser prior to implementation of the modifications. 12. RETURNED EQUIPMENT: No Equipment, parts or materials will be accepted for credit unless the return is first authorized in writing by Essmueller. Credit for the return of Equipment fabricated by others is limited to the amount of the credit offered by the manufacturer. Essmueller reseves the right to impose a restocking fee equal to 15% of the purchase price of the Equipment, parts or materials being returned and said restocking fee, if imposed, shall be paid by Purchaser in advance prior to the return of the Equipment, parts or materials. 13. CLAIMS: All shipments are made F.O.B. at Essmueller’s plant in Laurel, Mississippi. Purchaser assumes risk of loss of or damage to Equipment upon delivery by Essmueller to the transportation carrier. Essmueller is not responsible for loss or damage of Equipment during shipment. If there are shortages or evidence of damage, insist on the transportation agent making notations on the shipping documents before signing receipt. Claims for damages to Equipment while in transit, or for lost shipments, should be made by Purchaser against the carrier immediately. Claims to Essmueller for errors, shortages or defective Equipment must be made in writing within ten (10) days after receipt of Equipment. 14. TAXES: No state or local sales, use, excise or other taxes are included in the quotation. Any and all applicable taxes are the liability of the Purchaser. Purchaser agrees to provide Essmueller with satisfactory proof of current state sales tax exemption, if any. 15. BUILDING CODES & SAFETY DEVICES: Given that personal safety is always a priority, it is the responsibility of the Purchaser and its customer, contractor, subcontractor, installer, owner and user to supplement the Equipment and services furnished by Essmueller with the necessary items to make the installation comply with all federal, state and local laws, rules, regulations, ordinances and building codes. Electrical controls, machinery, guards, covers, railings, and walkways are some, but not necessarily all, of the necessary safety and protective devices for a safe working environment which Purchaser should consider installing at its cost and expense in connection with the Equipment purchased from Essmueller. All Essmueller Equipment is fabricated in compliance with NFPA 61 and applicable OSHA regulations. Any additional safety measures or devices which may be required by law, or which Purchaser may wish to add, are to be specified in Purchaser’s request for a quote, Specifications and incorporated in the Final Approved Drawings, Safety devices not specified by the Purchaser as stated herein shall not be furnished or installed by Essmueller but rather must be furnished and installed by Purchaser at Purchaser’s cost. 16. EXPORT: Purchaser assumes responsibility and liability for compliance with all U.S. and international laws, treaties, and customs rules and regulations applicable to Purchaser’s export. 17. WAIVER: Any waiver of these Terms and Conditions, to be valid and binding, must be in writing and signed by the party against which such waiver is to be enforced, and shall not constitute a continuing waiver of any other breach or default. No omission or delay by either party in exercising any right, power or priviledge shall constitute a waiver thereof. 18. PREVAILING PARTY: In the event of any claim, dispute or controversy arising out of or relating to these General Terms and Conditions of Sale, the prevailing party shall be entitled to recover attorney’s fees, expenses and court costs from the non-prevailing party. 19. GOVERNING LAW: The internal laws of the State of Mississippi (irrespective of its choice of law principles) will govern the validity of this Contract, the construction of its terms, and the interpretation and enforcement of the rights and duties of the parties, without regard to its conflict of laws provision. The Chancery Court of the Second Judicial District of Jones County, Mississippi shall have the sole and exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Contract. Each party hereby consents to the sole and exclusive jurisdiction of said court and waives any right it may otherwise have to object to or challenge the appropriateness of said court, whether on the basis of the doctrine of forum non conveniens or otherwise. Each party waives its right to file any lawsuit pertaining to matters arising out of or related in any manner to this Contract in any federal court or to seek removal of any such lawsuit to a federal court. The parties expressly exclude the United Nations Convention on Contracts for the International Sale of Goods from application to this Contract. 20. LIMITATION OF LIABILITY: IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), INDEMNITY OR OTHERWISE, SHALL ESSMUELLER OR ITS VENDORS BE LIABLE FOR ANY COST TO COVER IN EXCESS OF 125% OF THE PURCHASE PRICE PAID BY THE PURCHASER TO ESSMUELLER FOR THE EQUIPEMENT, OR PORTION THEREOF, BEING REPLACED; CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUES, COST OF CAPITAL, DOWN TIME COSTS, COST FOR TEMPORARY FACILITIES, SERVICES OR EQUIPMENT, LOSS OF USE, LOSS OF GOOD WILL, OR LIQUIDATED DAMAGES, AND ESSMUELLER’S LIABILITY SHALL NOT, IN ANY EVENT, EXCEED THE PURCHASE PRICE ACTUALLY PAID BY THE PURCHASER FOR THE EQUIPMENT TO WHICH SUCH LIABILITY RELATES. 21. PATENT AND COPYRIGHT INDEMNITY: This Section 21 constitutes and states the entire and exclusive liability of Essmueller for any alleged or actual infringement of any United States patent, copyrighted or uncopyrighted work, including claims thereof pertaining to or arising from Equipment fabricated by or services performed by Essmueller pursuant to this Contract or any combination thereof. If notified promptly in writing and given authority, information and assistance, and contingent upon Purchaser not taking any position adverse to Essmueller in connection with such claim, Essmueller shall defend, or may settle at its expense, any suit or proceeding against Purchaser so far as based on a claimed infringement which would result in a breach of this warranty. In case any Equipment, service or combination thereof is in such suit held to constitute such an infringement and the use of said Equipment or service is enjoined, Essmueller shall, at its expense and at its sole discretion either procure for Purchaser the right to continue using said Equipment or service, or replace same with a non-infringing Equipment or service, or modify same so it becomes non-infringing or Essmueller may refund to Purchaser all monies paid by Purchaser to Essmueller for the product, service or combination thereof which does constitute an infringement. Essmueller’s indemnity shall not apply and Essmueller shall not be liable hereunder for any claim of infringement (1) arising out of Essmueller’s fabrication or furnishing of any Equipment or made pursuant to designs or Specifications furnished by Purchaser, or (2) resulting from the use of Equipment or product furnished by Essmueller with other equipment or product not furnished by Essmueller, or (3) resulting from any modifications made by Purchaser to any Equipment or product furnished by Essmueller. Purchaser shall indemnify, defend and hold harmless Essmueller, its directors, officers, employees and agents against and all claims, losses, costs, suits, judgments, damages, and expenses, including attorney fees, of any kind or nature whatsoever or account of either of the claims stated in item (1), (2) or (3) hereof. 22. SEVERABILITY: If any Contract provision (or portion thereof) is determined invalid, illegal or otherwise unenforceable, that Contract provision (or portion thereof) shall be deemed to have been severed, and the remaining Contract provisions shall continue in full force and effect. 23. ADVANCE FABRICATION: In the event Essmueller chooses to fabricate any items in advance of the estimated completion, shipping and delivery dates and such advance fabrication is not expressly forbidden by the Purchaser, in writing, such advance Fabrication shall not void Purchaser’s liability for modification and cancellation charges that are stated herein. 24. OWNERSHIP OF DESIGNS, DRAWINGS AND WORK PRODUCT: All documents or information prepared, developed or provided to Purchaser by Essmueller or its employees or agents, or Subcontractors or their employees or agents, including without limitation drawings, specifications, manuals, calculations, maps, sketches, designs, tracings, notes, reports, data, computer programs, models and samples, shall remain the property of Essmueller (“Essmueller Intellectual Property”). To the extent that any Equipment includes or incorporates any Essmueller Intellectual Property, Essmueller hereby grants Purchaser a fully paid, perpetual license to use such Essmueller Intellectual Property for Company’s operation, maintenance, and modification of the Equipment to the extent necessary to accomplish those purposes, including the right to share same with Company’s contractors, agents, officers, directors, employees, joint owners, affiliates and consultants. © 2017 Essmueller Co. All rights reserved. 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