STANDARD TERMS AND CONDITIONS OF SALE & WARRANTY
Elmag, Inc. shall deliver the merchandise (MAGNEPULSTM) equipment purchased hereunder to a transportation company for shipment to Purchaser terms ExWorks, San Diego, California.
Costs of insurance and shipment beyond Ex Works, San Diego, California, shall be paid by Purchaser. Delivery to a common carrier or licensed trucker shall constitute delivery to the Purchaser, and all risk of loss or damage in transit shall be borne by the Purchaser.
Shipping date is approximate and shall be as agreed by the purchase order and Elmag’s acceptance thereof; subject to Elmag’s timely receipt of samples, gauges or other items requested by Elmag for testing purposes, and the timely presence of purchaser’s representative when requested by Elmag; and subject to delays caused by strikes, accidents and all other causes not attributable to Elmag or beyond Elmag’s control. Elmag shall notify Purchaser as to date of shipment.
2. ACCEPTANCE OF OFFER:
The offer will become void unless accepted by the Purchaser within 30 days of the date thereof. Purchaser’s order must be signed by a duly authorized officer or his designee, must indicate acceptance of Seller’s proposal. The resulting contract shall in all respects be governed and interpreted according to the Laws of the State of California. After acceptance, the Purchaser’s right thereunder may not be transferred to any other party without the consent of the Seller. Any of the terms and conditions of the Purchaser’s order which are in any way in conflict or inconsistent with, or in addition to the terms and conditions set forth herein shall not be binding on the Seller and shall not be considered applicable to the sale, unless expressly agreed to in writing by the Seller.
Any MAGNEPULSTM electromagnetic metal forming equipment purchased by Elmag’s customer(s) will grant the buyer a royalty free non-exclusive license to use Elmag’s equipment and technology. However, customer warrants that they or any third party associated with customer will not duplicate, copy, or in any way re-engineer or manufacture Elmag’s equipment without prior written consent by Elmag.
4. EQUIPMENT ACCEPTANCE CRITERIA:
Equipment covered by this proposal may be witnessed by Purchaser’s authorized representative in Seller’s plant prior to shipment and invoicing. When such inspection is performed by Purchaser’s representative, such shall constitute final test and acceptance and procedures relating to such inspections. The inspection shall consist of a reasonable running of the machine/equipment to demonstrate the likeness of the equipment to the specification contained in the proposal. Delays of such inspection procedures by the Purchaser’s representative shall constitute waivers thereof, and final invoices shall be submitted as of the date the equipment is ready for such inspection.
Purchaser shall pay Elmag the total price of this order within thirty (30) days of delivery unless otherwise specified by Elmag. A detailed payment schedule will be part of the quotation.
6. EXTRA COSTS:
The total amount of this offer does not include any taxes, permit fees, assessments, inspection, insurance or shipping costs whatsoever. Purchaser shall reimburse Elmag with respect to any such costs incurred by it under this order. Such costs due hereunder shall be paid by Purchaser upon receipt of billing by Elmag.
7. OBLIGATION OF PURCHASER:
It is the responsibility of the Purchaser to prepare and submit all applications and to obtain all licenses and permits as may be required by Federal, State and local laws and regulations in connection with the receipt, possession, use, installation, operation, transportation, handling and disposal of the components sold hereunder and materials contained therein.
8.1 Elmag undertakes to correct defects in material or workmanship existing in the components of the MAGNEPULSTM equipment either at Elmag’s election, (1) by repairing the defective component or part thereof, or (2) by making available, Ex Works San Diego, a repair or replacement component or part thereof; provided that Purchaser has given Elmag written notice of the defect within 15 days after Purchaser knows or has reason to know thereof. All operation of the equipment must be suspended until written approval by Elmag is issued for continued operation provided that Elmag upon receipt of notice of a claimed defect will proceed without unreasonable delay to remedy any defect which is found to exist within the warranty.
8.2 Elmag shall have no liability or responsibility with respect to defects in materials or workmanship which arise out of or result from (1) failure to properly maintain, operate or care for the MAGNEPULSTM equipment or any part thereof, or (2) normal wear and tear, or deterioration , as determined by the state-of-the-art at the time of sale, or (3) misuse or abuse, including operation at machine settings greater than specified or without a workpiece in place, or (4) use with work coils and other accessories not supplied by Elmag.
8.3 Electromagnetic Forming Coils are considered as wearable tooling and are sold with a materials and workmanship guarantee only. There is no warranty for a specific application or life.
8.4 It is the responsibility of the Purchaser to establish the suitability of the MAGNEPULSTM equipment for performing the proposed work and any participation by Elmag in establishing such suitability is of an advisory nature unless otherwise stated in writing. When stated in writing, any such guarantee is valid only to the extent that the workpiece design, construction, materials and operating conditions are fixed and unchanged from those upon which the guarantee is based.
8.5 Elmag receives warranties on certain commercially available components purchased from other manufacturers or vendors. Elmag’s obligations with respect to such components shall be limited to the warranties extended by the manufacturer or vendor of these components.
8.6 This warranty extends for twelve (12) months from date of shipment from the Elmag plant or from date of assignment to storage at Purchaser’s request.
8.7 In making adjustments under this Article, Elmag may require Purchaser to furnish operating records of the MAGNEPULSTM equipment. Under no circumstances shall Elmag be held responsible for consequential damage to the MAGNEPULSTM equipment or the property of the Purchaser or other persons or for injury to or death of any person.
8.8 The express warranties and remedies set forth in this paragraph are exclusive, and no other warranties or remedies of any kind, whether statutory, written, oral, expressed or implied (including warranties for a particular purpose and/or merchantability) shall apply. Elmag’s sole and exclusive remedies with respect to defect in material or workmanship shall be repair or replacement. In no event shall Elmag be liable, in contract or in tort, for any special, incidental, or consequential damages. The provisions of this paragraph shall apply, notwithstanding, any other provisions and shall apply to the full extent permitted by law and regardless of fault. Material alteration or modification of the MAGNEPULSTM equipment without the written consent by Elmag shall void all warranties.
9. DESIGN CHANGES:
Elmag reserves the right to make changes in the design of the MAGNEPULSTM equipment if such changes, in its opinion, tend to improve the performance or otherwise benefit the equipment.
Elmag shall not be liable for prospective profits or special indirect or consequential damage, nor shall recovery of any kind against Elmag be greater in amount than the purchase price of the specific material sold and causing the alleged damage. Purchaser shall hold Elmag free and harmless from all risk and liability for expense, loss, damage, or injury to persons or property of Purchaser or others arising out of use or possession of any material sold hereunder.
The Purchaser may not assign this Agreement without the prior written consent from Elmag.
12. FORCE MAJEURE:
Elmag shall not be considered in default in performance of its obligations hereunder to the extent that performance is delayed or prevented by causes beyond their control or without the fault of Elmag including causes such as acts of God, hostilities, strikes, fire, flood, sinking of vessels, acts of the Purchaser, including delay in performing its obligation, or because or by reason of any law, proclamation, regulation, or ordinance or any government or governmental agency.
This Agreement and the covenants herein contained shall be binding upon and inure to the benefit of the successors and assign of each party.
14. EFFECTIVE DATE:
The effective date of this Agreement will be the date this Agreement is signed by Purchaser and Elmag.
In the event of a request to stop work or to cancel the whole or any part of an order, the Purchaser shall make payment to Elmag as follows:
a. Any and all work that can be completed within 30 days from date of notification to stop work on account of cancellation shall be completed, shipped, and paid for in full.
b. For work in process and any materials and supplies procured or for which definite commitments have been made by Elmag in connection with the order, the Purchaser shall pay Elmag the actual costs including burdens determined in accordance with good accounting practice, plus 20%.
16. APPLICABLE LAW:
This Agreement is entered into in the State of California and shall be interpreted in accordance with the laws of the State of California.