(a) “Buyer” means the individual or entity identified on Buyer’s purchase order, or, if different, on EPS’s Quotation, order acknowledgement or confirmation.
(b) “EPS” means Engine Power Source, Inc., a South Carolina corporation.
(c) “Manufacturer” means the manufacturer of a Product or of a component of a Product, as applicable.
(d) “Product” means (i) any product designed or manufactured by or on behalf of EPS, or (ii) any third-party Manufacturer’s product offered for sale by EPS.
(e) “Quotation” means a quotation provided by EPS to Buyer describing specifications and terms applicable to the potential sale to Buyer of certain Products.
Unless EPS expressly agrees in writing, these Terms and Conditions will govern all purchase orders and Quotations for Products, and EPS’s acceptance of any purchase order submitted by Buyer is conditional on Buyer’s acceptance of these Terms and Conditions. EPS specifically rejects, and Buyer disclaims, all pre-printed provisions in Buyer’s purchase order and any other Buyer forms or documents. EPS’s failure to object to any term or condition in any communication from Buyer will not be construed as agreement to such term or condition, nor will it be deemed a waiver of these Terms and Conditions. EPS reserves the right, in its sole discretion, not to accept any purchase order, including any purchase order issued in connection with a Quotation provided by EPS. Without limiting the foregoing, (a) EPS may reject any purchase order if it determines, in its sole discretion, Buyer may not have the ability to perform its obligations hereunder and (b) EPS may condition its acceptance of any purchase order on Buyer’s execution of sale and/or lease documents in form prescribed by EPS and embodying credit terms acceptable to EPS.
3. Quotations and Prices.
The Quotation, together with these Terms and Conditions, sets forth the terms and conditions upon which EPS is willing to contract for the sale of Products and any services described in the Quotation. Unless otherwise specified by EPS, the prices shown on the Quotation are those currently in effect as of the date of the Quotation and will be adjusted to reflect any subsequent price changes. The actual purchase price will be adjusted based on the price in effect on the date of shipment.
Prices do not include occupation, sales, use, privilege, excise or similar taxes, duties, tariffs or assessments, and Buyer will pay any such amounts arising from the sale of the Products. In lieu of payment, Buyer may, prior to delivery of the Products, provide EPS with a tax exemption certificate acceptable to the appropriate taxing authority. Sales tax laws of North Carolina, South Carolina, Georgia, Tennessee, Virginia, Florida and Alabama (except when Buyer is exempt) apply to all purchases and leases of Products.
5. Terms of Payment.
Unless EPS otherwise agrees in writing, Buyer must make payment for Products on the terms set forth in the Quotation or order acknowledgement. Buyer will pay interest on any past due invoices at a rate of 1.5% per month on the unpaid balance, or, if lower, the maximum rate permitted under applicable law. Buyer will pay all costs, including reasonable attorneys’ fees, court costs and collection agency fees, which EPS incurs in the enforcement of this agreement against Buyer. EPS may, in its sole discretion, withhold shipment of orders if Buyer’s account is in arrears. Buyer acknowledges that EPS retains a security interest in all Products until Buyer renders payment in full, and Buyer hereby authorizes EPS to file any documents necessary to perfect EPS’s security interest.
6. Packing and Shipping.
EPS will pack, package and crate Products in accordance with its standard commercial practices. Unless stated otherwise in the Quotation or order acknowledgement or confirmation, all Products will be shipped FCA EPS’s factory or other EPS designated location. EPS may make partial shipments and submit invoices for such partial shipments in accordance with the payment terms set forth in Section 5 above.
7. Risk of Loss.
Title and the risk of loss or damage to Products will pass to Buyer at the time EPS delivers the Products to the transportation company, and any claims for shortages, delays or damages occurring thereafter shall be made by Buyer directly to the transportation company. Any claims against EPS for shortages in shipment shall be made within fifteen days after receipt of shipment and EPS shall not be responsible for any claim not asserted within such time. EPS will assist Buyer, upon Buyer’s request, in making proper claims against the transportation company.
Any shipping or delivery date specified in the Quotation or order acknowledgement is merely an estimated date of shipment or delivery. EPS does not and will not guarantee any shipping or delivery date, and no person is authorized to commit to an estimated delivery date except in a writing signed by an authorized officer of EPS. EPS may estimate shipping or delivery dates to the best of EPS’s knowledge based on information provided by Buyer and conditions existing at the time of the estimate. EPS will make commercially reasonable efforts to ship the Products by the estimated shipping date, but will not be liable for any damages arising from a delay in shipment.
9. Force Majeure.
EPS will not be liable for any delay caused by any act of God, fire, flood, explosion, war, terrorism, insurrection, riot, embargo, action, statute, ordinance, regulation or order of any government or government agency, shortage of labor, material, fuel, supplies or transportation, strike, lockout or other labor dispute, accident, or any other cause, contingency, occurrence or circumstance of any nature beyond EPS’s control. If there is such a delay, EPS will have a reasonable extension of time in which to complete performance. If EPS is partially excused from performance, either by any of the conditions listed above or by the provisions of the Uniform Commercial Code, EPS will not be required to make any allocation of production, shipments or deliveries in accordance with Section 2-615(b) of the Uniform Commercial Code or any equivalent or successor provision thereto.
10. Inspection and Acceptance of Products.
Buyer will inspect and accept or reject the Products immediately upon receipt, but in no event will Buyer have the right to inspect, reject or revoke Buyer’s acceptance later than five days after delivery.
11. Delivery Delays.
If Buyer delays delivery of completed Products, and such delay continues for more than 30 days after the agreed delivery date, EPS may charge Buyer a monthly storage fee equal to 1.5% of the invoice price, calculated from the original delivery date. EPS may also invoice Buyer for the completed Products, and Buyer must pay for the Products in accordance with the terms of the original sale.
(a) Each Product or component thereof is subject to the terms, conditions and limitations of the applicable Manufacturer’s warranty, if any, for such Products or components as in effect as of the date of shipment. EPS will deliver with the Products copies of any applicable Manufacturers’ warranties.
(b) EPS makes no warranty of items manufactured by others, and EPS accepts no responsibility for any warranties or representations by third-party Manufacturers contained in any descriptive or advertising materials, including but not limited to statements regarding condition, productive capacity, operation or performance of Products or components not manufactured by EPS.
(c) In no event shall EPS’s sales advice, performance of engineering work or performance of application review or testing express or imply any additional warranty coverage other than as stated in the applicable Manufacturer’s warranty for any Product or component. Nothing in these Terms and Conditions or in any Manufacturer’s warranty for such Products or components shall be construed to provide Buyer with a warranty from EPS for any specific application of any Product, regardless of whether EPS offered Buyer any advice regarding the Product, performed any engineering work on behalf of Buyer with respect to the Product or performed any application review or testing of such Product.
(d) Except as specifically stated herein and in EPS’s standard warranty relating to such Product, EPS makes no representation or warranty, express or implied, that any Product supplied by EPS complies with the requirements and standards of the Occupational Safety and Health Act of 1970 or of any other legislation or governmental rules and regulations, either State or Federal.
13. Emissions Standards and Alteration of Products.
As of the date of shipment, the Products will meet any applicable Federal emission standards for such Products required by 40 CFR Part 1039, Part 89, Part 90, Part 1048 or Part 1054, except to the extent Buyer has agreed to assemble such Products according to EPS’s instructions in order to meet such emission standards. Buyer shall not remove, alter, tamper with or render inoperative any emission control device, engine component or element of design installed in compliance with Federal or State regulations, except as permitted pursuant to applicable law. EPS shall not be responsible for any failure of any Product to meet Federal or State emission standards to the extent such failure is caused by the improper maintenance or use of the Product, including but not limited to abuse or neglect of the Product or of any equipment in which the Product is installed, use of the Product in any manner for which it was not designed, failure of Buyer to follow installation or assembly instructions provided by EPS, or adjustment, modification, alteration or repair not expressly authorized in writing or performed by EPS of the Product or any device, component or element of design installed on the Product to control emissions. Further, Buyer shall indemnify, defend and hold harmless EPS, its affiliates, successors, assigns, officers, directors and employees from and against any and all actions, demands, liabilities, expenses, losses, damages, claims, fines, penalties and costs (including all reasonable attorneys’ fees) resulting from any improper maintenance, use, installation, assembly, adjustment, modification, alteration or repair of any Product, or component thereof, by Buyer, its affiliates, successors, assigns, officers, directors, employees or agents.
14. Limitations on Liability.
THE WARRANTIES HEREIN AND, EXCEPT AS OTHERWISE EXPRESSLY STATED THEREIN, IN ANY APPLICABLE MANUFACTURER’S WARRANTY ARE EXCLUSIVE AND ARE MADE ONLY TO BUYER. EPS MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS AND EXCLUDES ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND ANY REPRESENTATION OR WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. No person is authorized to give any additional warranties on EPS’s behalf or to assume for EPS any other liability, except in a writing signed by an authorized officer of EPS. EPS’S TOTAL LIABILITY FOR ANY CLAIM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE MANUFACTURE, SALE, DELIVERY OR USE OF THE PRODUCTS WILL BE LIMITED TO PROVEN DIRECT DAMAGES, NOT TO EXCEED THE PURCHASE PRICE OF SUCH PRODUCTS. IN NO EVENT WILL EPS BE LIABLE FOR ANY SPECIAL, INCIDENTIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY CLAIM FOR LOSS OF ACTUAL OR ANTICIPATED REVENUES OR PROFITS. The limitations on liability in these Terms and Conditions will apply regardless of the form of action, whether in contract, tort, strict liability or otherwise, and whether damages were foreseeable. The limitations of liability in this Section 14 will survive failure of any exclusive remedies provided in these Terms and Conditions or in any applicable Manufacturer’s warranty.
15. Remedies for Events of Default.
If Buyer (i) fails to pay any amount due within 30 days of the due date, (ii) files a petition in bankruptcy or seeks relief under any bankruptcy, reorganization, insolvency, dissolution, liquidation or similar law of any jurisdiction, or (iii) becomes unable to pay or suspends payment of its debts as they become due, or if a court issues an order appointing a receiver, custodian or administrator over all or part of Buyer’s assets, EPS may terminate any outstanding purchase order. In addition, without waiving any other available remedies, EPS may: (w) declare immediately due and payable all sums due and to become due under any outstanding purchase order; (x) stop manufacture of any Products for Buyer; (y) stop all shipments in progress and future shipments; and (z) repossess any Products in which EPS has a security or ownership interest.
16. Waiver of Subrogation.
Buyer waives (for itself and its insurance carrier) all its rights of subrogation against EPS and EPS’s employees, agents, suppliers and subcontractors; provided that this provision will have no effect to the extent that it invalidates or otherwise limits Buyer’s insurance coverage.
The Manufacturer may change its Product specifications and manufacturing practices at any time without notice to Buyer; provided that such changes do not materially impair the performance of the Products. The Manufacturer will exclusively own all materials and information provided by EPS to Buyer, including, without limitation, specifications, drawings, engineering data and technical designs.
18. All Sales Final.
Unless otherwise expressly agreed in writing by EPS, all sales are final. No returns will be accepted by EPS without a prior written authorization to return materials signed by a duly authorized agent of EPS. EPS reserves the right to inspect any returned Products for damage and may, in its dole discretion, refuse to accept the return of any damaged Products. Returned Products accepted by EPS after EPS’s authorization may be subject to a restocking charge equal to 15% of the actual purchase price of the returned Products and the Buyer shall be responsible for all costs for return shipment of such Products from the Buyer shall be paid by the Buyer.
19. Changes; Cancellation.
Buyer may cancel a purchase order only with EPS’s express written consent. Any change to a purchase order must be in writing and signed by duly authorized representatives of EPS and Buyer. Change orders will specify any resulting adjustments in delivery schedule or price.
20. Compliance with Laws.
Buyer will comply with all applicable laws affecting the purchase and use of the Products, including, without limitation, any applicable export or emission laws.
21. Confidential Information.
Buyer will not disclose any confidential or proprietary information of EPS, including, without limitation, any information regarding pricing of the Products or the other terms and conditions of sale of the Products to Buyer. In addition, Buyer will not use any of EPS’s trade marks, service marks or trade names without the express written consent of EPS.
22. No Partnership or Joint Venture.
The parties agree that nothing in these Terms and Conditions will create any agency, employment, partnership, joint venture or fiduciary relationship between Buyer and EPS.
These Terms and Conditions are binding upon, and inure to the benefit of Buyer, EPS and their successors and permitted assigns. Buyer may not assign all or any portion of its rights or obligations hereunder without the prior written consent of EPS. EPS may assign, delegate or subcontract a purchase order, in whole or in part, without Buyer’s consent.
EPS’s waiver of any breach of any provision contained in these Terms and Conditions will not waive any other breach by Buyer. EPS’s delay or failure to enforce its rights under these Terms and Conditions all not be deemed a waiver of such rights.
25. Entire Agreement; Amendments.
These Terms and Conditions, any applicable Manufacturer’s warranty from EPS and EPS’s Quotation or order acknowledgement or confirmation, constitute the entire agreement of the parties covering the Products provided by EPS to Buyer. These Terms and Conditions supersede all other written or oral agreements between the parties. EPS and Buyer may modify these Terms and Conditions, or the associated Quotation or purchase order acknowledgement, only by an express written agreement signed by both parties.
26. Governing Law; Venue; Limitation of Actions.
This agreement will be governed by the internal laws of the State of South Carolina, including the Uniform Commercial Code as adopted in the State of South Carolina, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. All shipping and delivery terms specified herein will have the definitions set forth in the Incoterms 2000 published by the International Chamber of Commerce. BUYER HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE COURT LOCATED WITHIN YORK COUNTY, SOUTH CAROLINA OR ANY FEDERAL COURT LOCATED IN THE STATE OF SOUTH CAROLINA AND CONSENTS THAT ALL SERVICE OF PROCESS BE MADE BY REGISTERED OR CERTIFIED MAIL DIRECTED TO IT AT ITS ADDRESS SET FORTH ON THE PURCHASE ORDER. NOTHING IN THIS AGREEMENT AFFECTS THE RIGHT OF EPS TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY ACTION OR PROCEEDING AGAINST BUYER IN THE COURTS OF ANY OTHER JURISDICTION THAT HAS JURISDICTION OVER BUYER. TO THE EXTENT PERMITTED BY LAW, BUYER WAIVES TRIAL BY JURY AND WAIVES ANY OBJECTION THAT IT MAY HAVE BASED ON LACK OF JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.