Terms of Sale
(1).GENERAL: This transaction is expressly, limited to the terms stated herein, and any additional or different terms proposed by BUYER are rejected unless expressly assented to by EPCON® INDUSTRIAL SYSTEMS, LP, hereinafter called “Seller”. Customer, hereinafter, is called “Buyer”. NO PERSON HAS AUTHORITY TO MAKE A CLAIM, ANY REPRESENTATION, WARRANTY, TERMS, PROMISE OR CONDITION, WHICH IS NOT EXPRESSED HEREIN. THIS TRANSACTION SHALL BE BINDING ONLY AFTER WRITTEN ACCEPTANCE BY AN AUTHORIZED OFFICER OF SELLER AND BUYER.
(2).TAXES: Prices quoted herein for any equipment, spare parts, or services are exclusive of all taxes. Such taxes, if applicable, shall be the responsibility of the buyer, either shall be collected accordingly by Seller, or the Buyer may pay directly, to the appropriate agencies; local, state and federal. Where Buyer is lawfully entitled to exemption from any tax, all necessary documentation must be provided by Buyer to effect such exemption. Any taxes, interest and penalties assessed against Seller or transactions which are otherwise determined taxable, shall be paid by Buyer. In addition, any property taxes, which may be assessed or charged against the equipment, during construction or even after the actual shipment, shall be paid by the Buyer. Price excludes cost of any and all bonds or letters of credit.
(3).DELIVERY: Any statements pertaining to delivery dates, set forth hereunder, refer to the manufacture and completion of the equipment are Seller’s best estimates, thereof and are subject to change due to factors beyond Seller’s control, but said dates of delivery or completions are not guaranteed. Delays do not constitute ground for cancellation or damages. In the event the Buyer is unable to receive shipment or in event Seller is prevented from making shipment due to causes beyond Seller’s reasonable control, Seller will store the equipment at Buyer’s risk and expense. During this time, the warranty clock shall be ticking.
(4). FORCE MAJEURE: Force Majeure means any circumstances beyond the reasonable control of either party. In no event shall Seller be liable for loss or damages of any nature whatsoever, incurred or suffered, as a result of any failures or delays in shipping or performance of the contract, due to causes or circumstances beyond Sellers control, including but not limited to inability to obtain materials necessary for manufacturer of the Goods, total or partial failure of any of Seller’s usual means of transportation of the Goods, failure to obtain necessary governmental approvals, permits or licenses, disruption of supply chain for whatever reason, strikes or other labor disputes and lockout, heavy rains and floods, earthquakes, explosions, epidemics, pandemics or viruses, fire, breakdown of machinery or equipment, plant shutdown, change of market conditions, lack of market due to any other conditions, acts of governments, acts of God, acts of terrorism or War, riots or other civil disturbances or voluntary or involuntary compliance with any law, order regulation, recommendation or request of any governmental authority or when Seller’s delay in performance of, or the submission of, additional drawings, specifications or data arising out of, or in connection with Buyer’s (i) delay in return of approved drawings to Seller, (ii) changes in drawing specifications and other data, and/or (iii) request for additional drawings, specifications, or other data. In such event Seller’s time for performance shall be extended under the contract and/or the date for the submission of additional data or compliance with Buyer’s changes. Neither party will have any liability, other than for the payment of monies owing, for their failure to perform any of their contractual obligations arising out of or in connection with events of Force Majeure.
(5).CHANGES: Buyer shall have the right to make changes, at any time during the engineering or fabrication phase, in any one or more of the following, provided such changes are agreed to in writing by Seller and Buyer: (i) specifications, drawings and data where the equipment to be furnished are specifically manufactured for Buyer, (ii) method of shipment or packing; and (iii) place of delivery. If any such change results in an increase or decrease in the cost or the time required for performance of this transaction, or an equitable adjustment shall be made in the contract or delivery schedule, or both. In instances where Buyer requests a deferral of the original shipment date or through actions initiated by Buyer which are beyond the control of Seller causes a delay in shipment, Seller is entitled to compensation for the carrying value of the engineering and inventory investment plus the value assignable to lost utilization of shop capacity that cannot be replaced because of the time factor alone.
(6). CANCELLATION (By Buyer): Buyer may cancel this agreement at any time, but shall be liable for all costs incurred by Seller up to the time that written notice is received and any costs incurred after that time that cannot reasonably be avoided by Seller. Buyer shall be liable to pay the overhead and the profit on the total purchase order amount, plus 20% of the contract price as a Cancellation Charge. On a case by case basis cancellation charges shall be computed based on the terms of payments, delivery and schedule.
Project Restart Fee
Because of substantial costs involved in the stop and restart of a project once it is halted, at any time, for any reason, for 30 days or longer, the restart fee will be a min of 10% of the project cost, with payment due immediately.
(7). TERMINATION: In addition to any remedies that may be provided in this Agreement, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for 3 days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part and such failure continues for 3 days after Buyer’s receipt of written notice of breach; or (iii) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. The termination of this Agreement pursuant to this Section 7 shall not release Buyer from any obligation or liability to Seller that has already accrued hereunder. Seller shall not be liable to Buyer for any damage of any kind (whether direct or indirect) that Buyer may incur by reason of the termination of this Agreement and, for the avoidance of doubt, Buyer shall not be entitled to a refund of any portion of the Price already paid at the time of termination of this Agreement.
(8). INSTALLATION: Buyer will assume full responsibility for the complete installation at its own cost and expense. Seller will, at Buyer’s request, furnish service direction (installation supervision only) and the cost of such service direction, on a daily rate basis, plus per diem. Qualified technical direction and assistance for the installation, startup, field performance testing, inspection, repair, and maintenance of Seller’s supplied equipment or spare parts, will be provided upon receipt of a separate purchase order.
Epcon can provide startup, commissioning and personnel training services on a per diem basis.
System startup is just to prove the functionality of the system, but commissioning and balancing the system is different and constitute additional services.
Commissioning involves balancing the system for different operating conditions, different modes, different PLC programs, and temperature uniformity, and many other such requirements and will always remain on a daily rate basis, plus per diem.
(9).Spare Parts and Replacement Parts
Seller highly recommends Buyer to keep all critical Spare Parts at the job site. And, Buyer MUST buy the replacement and the spare parts from Epcon to insure the correctness of the parts and components being replaced, since these components become part of the system provided by Epcon. Any deviations from the parts provided, wrong parts or wrong wiring may result in Major Malfunction, Explosions, Property Damage and/or Bodily Injury. Unauthorized replacement parts or spare parts, if installed by the buyer, buyer assumes all the liability and responsibility of the entire system. During the warranty period, any unauthorized replacement of parts renders the warranty null and void and the buyer assumes total liability and responsibility of the entire system.
Any mechanical, electrical, and electronic component, such as Burners, Blowers, Burner Management system, PLC, electrical sensors, can potentially wear out, or malfunction, resulting in an undesirable and long shutdown of the entire system.
Lengthy wait time and extreme costs could be incurred while waiting for these parts.
Epcon strongly recommends that the customer must maintain an inventory of critical spare parts, for easy replacement and minimum interruption.
(10). COMPLIANCE WITH MAINTENANCE SCHEDULE: Seller shall furnish electronic Operating and Maintenance Manuals for Buyer’s use. The Maintenance Schedules must be followed in strict accordance and maintenance records must be maintained by the Buyer. Failure to do so shall void the Warranty on the equipment and the system.
(11).COMPLIANCE TESTING: Any compliance testing must be accomplished within 45 days from startup or within 90 days of shipment, whichever comes first. Third-party testing for regulatory requirement is the responsibility of the Buyer. Epcon must be included in the complete testing process. Selection of testing company and the actual testing must be performing during engineering testing, prior to completing actual testing. Epcon shall be paid for its services on a separate purchase order.
(12). WARRANTY: Seller hereby warrants to Buyer that the Equipment manufactured by Seller or purchased from Epcon’s Supply for the project described, material will be free of any defects and workmanship. The Seller extends the warranty to Buyer for equipment usage under normal operating conditions and service for (12) months from the date of shipment. The burden of proof whether any defects occurred within the warranty period, rests with Buyer. Seller shall not be liable for any damages or delays caused by defective material or workmanship. Warranty is for the material and equipment only, not labor. Warranty does not apply to paint.
Epcon’s liability, whether in contract, tort, negligence, or otherwise, shall be limited in the aggregate to direct and actual damages, not to exceed total monies paid by the Buyer minus the total cost of the system (gross), received by Epcon from its customer.
Equipment not originally manufactured by Seller but manufactured by others, or by Epcon’s Supplier shall receive such warranty, if any, of the manufacturer thereof, and which are hereby assigned to Buyer without recourse from Seller of equipment supplied hereunder, regarding any warranty claims, if requested by buyer.
Seller warrants, at its sole option or Sole discretion, repair or replace said FOB, point of manufacture, provided that Buyer notifies in writing of such defect within twelve (12) months from the date of shipment.
Most damages occur due to system operating beyond its design capacities and capabilities, such as operating the system higher than the designed temperature limits, shutting down the system before cooling down, bypassing the cooling cycles, or power failure. Therefore, it is extremely important that the startup and shut down procedures are strictly followed. Therefore, Epcon made it mandatory to have training for the Buyer’s operating personnel/maintenance personnel.
To comply with Warranty, Buyer will be responsible for paying Seller’s labor and out-of-pocket expenses. All work will be performed Monday through Friday (8:00AM to 5:00 PM), and any time required outside of these hours will be charged as overtime to the customer.
On request of Seller, the part claimed to be defective will be returned, transportation prepaid, to the factory where made, for inspection. If, in Seller’s opinion, repairs have to be effected at Buyer’s plant site, local labor shall be placed at the disposal of Seller’s representative by Buyer free of charge to Seller, and likewise lifting and hoisting equipment of sufficient capacity, upon request of Seller’s representative. Any item which has been purchased by Seller is warranted only to the extent of the original manufacturer’s warranty to Seller.
No allowance will be made for repairs or alterations made by others without Seller’s written consent or approval.
If repairs or alterations are attempted without Seller’s consent, Seller’s warranty is null and void. Seller assumes no responsibility for damages caused by improper installation or by operation in violation of its rated operating capabilities and capacities, internal or otherwise, or by improper handling or maintenance. All liability of Seller, howsoever arising, and all warranties, representations or conditions, whether expressed or implied, in relation to equipment or spare parts is hereby excluded. Seller’s total liability is limited to the cost of repair or replacement and if the equipment or spare parts fail, for any reason, to comply with the contract.
This warranty is in effect only if all the payments are made, in a timely fashion, as agreed upon between the Buyer and the Seller. If the payments are not made, the warranty will be suspended and will not be in effect until the payment is made.
(13). INDEMNIFICATION: Buyer shall indemnify, defend, and hold harmless Seller and its officers, directors, managers, members, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, other fees, and the costs of enforcing any right to indemnification under this Agreement and pursuing any insurance providers, relating to/arising out of or resulting from any claim of a third party or Seller arising out of or occurring in connection with the use of the Equipment, or Buyer’s negligence, willful misconduct, or breach of this Agreement. Buyer shall not enter into any settlement without Seller’s and any other applicable Indemnified Party’s prior written consent.
(14). LIMITATION OF LIABILITY:
In no event, and under no circumstances, notwithstanding any agreements, shall Seller be liable for any and all damages, including consequential, liquidated, incidental, punitive, special, exemplary, indirect or enhanced damages, lost profits or revenues or diminution in value, arising out of, or relating to and/or in connection with this agreement, regardless of (a) whether such damages were foreseeable, (b) whether or not Seller was advised of the possibility of such damages, (c) the legal or equitable theory (contract, tort, or otherwise) upon which the claim is based and (d) the failure of any agreed or other remedy of its essential purpose; or resulting directly or indirectly from the use or misuse of, or reliance upon, any equipment supplied by Epcon, including loss of production, bodily injury, nor any other claims resulting from delays, malfunction of the equipment during the warranty period or anytime thereafter during the life of the equipment.
Seller assumes absolutely no responsibility in any form or fashion for equipment, if misused and not operated in accordance with the instruction manuals, or changes incorporated by Buyer to enhance the capabilities. There are no warranties established, herein, expressed, implied, or statutory, including the warranty of merchantability, except those expressly stated, in the warranty clause, and the performance guarantees.
Epcon’s liability, whether in contract, tort, negligence, or otherwise, shall be limited in the aggregate to direct and actual damages, not to exceed total monies paid by the Buyer minus the total cost of the system (gross), received by Epcon from its customer.
In no event shall Seller’s Aggregate Liability arising out of or related to this agreement, whether rising out of or related to Breach of Contract, Tort (including Negligence), or otherwise, exceed the amount of any payments made by Buyer to Seller hereunder.
(15).PAYMENT: Buyer agrees to Sellers Terms of Payment as specified in the proposal and shall promptly pay the invoices with the terms agreed to by both parties.
All delinquent and past due accounts shall bear 1½% interest, per month, from the date of purchase.
Seller, shall have the right to adjust the contract price in accordance with Seller’s STANDARD PRICE ADJUSTMENT PROVISIONS as outlined by the Seller and quoted to Buyer at the outset of negotiations.
(16).PERMITS: The Buyer assumes the responsibility for securing the approval and permits required by state or local laws and ordinances to operate the equipment and for any required fees. If any changes are required in the equipment covered in this proposal to meet the approval of such laws or ordinances, the Buyer shall inform the Seller of such changes and shall reimburse Seller for changes made to comply with the requirements.
THE WARRANTIES PROVIDED IN THE OBLIGATIONS AND LIABILITIES OF SELLER HEREUNDER ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, ALL OTHER WARRANTIES, GUARANTEES, OBLIGATIONS, CLAIMS FOR LIABILITIES, RIGHTS AND REMEDIES, EXPRESS OR IMPLIED, ARISING BY THE LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY FOR ANY MERCHANTABILITY AND FITNESS FOR PURPOSE.
The system proposed will be built using the information provided to Epcon by Customer (Buyer), and will meet the performance statement as specified in this proposal. Any future changes in regulations or more advanced technology may necessitate modifications to the system. If the system is operated or subjected beyond the designated operating parameters, such as temperature limits, volume, pressure and solvent loading, the warranty shall be null and void.
(17).OPERATION: The Buyer is responsible for the operation of the equipment prior to final acceptance. For preliminary operations, demonstration of capacity and performance guarantees, representatives of the Seller are authorized only to advise and consult with the Buyer and no representative of the Seller is authorized to operate the equipment.
(18.)DAMAGES: SELLER SHALL IN NO EVENT BE LIABLE FOR ANY LIQUIDATED, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, BUT NOT LIMITED TO, LOSS OF REVENUE, PRODUCTIONS OR USE OF ANY EQUIPMENT, RESULTING FROM ANY CAUSE.
(19).BACK CHARGES: Seller shall never make any monetary allowance for, or any other allowances for, repairs or replacement without its written authorization.
(20).DRAWINGS: Upon acceptance by Buyer and approval by Seller of this transaction, Buyer shall promptly furnish all such engineering data and information as may be required by Seller for the preparation of certified outline drawings suitable for construction of the equipment. Seller shall have the right to suitable substitution of material or equipment with equal/better quality material and components. Seller reserves the right to execute any portion of Buyer’s transaction through any of its subsidiaries or subcontractors. Any drawings or prints of the equipment accompanying the proposal furnished by the Seller are submitted to show the general arrangement and approximate dimensions only.
No detail or shop working drawings or information which may be of proprietary nature of the equipment or spare parts will be furnished. Customer installation drawings, such as foundation drawings, piping drawings and control schematics are the responsibility of Buyer or User. All drawings and specifications furnished by Seller are proprietary and confidential information of the Seller and shall always remain Seller’s property, and are not to be reproduced or disclosed to any parties other than Buyer or User.
Epcon is the copyright owner of any and information, technical data, proposals, drawings, proprietary information to be supplied under this contract to the customer.
Under no circumstances shall the customer divulge or pass on Epcon’s drawings, Epcon’s proprietary information, or Epcon’s proposal to a third party.
All documents, computer disks, other media including drawings and specifications, supplied by the Seller, pursuant to this agreement, are instruments the Seller’s services in respect of the project. They are not intended or represented to be suitable for reuse by the Buyer or others, on extension of the project or any other project. Any reuse, without specific written verification, adaptation or approval by the Seller will be at the Buyer’s sole risk, without liability or legal exposure to the Seller. And, the Buyer shall indemnify and hold harmless the Seller from all claims, damages, losses and expenses including attorney’s fees arising out of this or resulting thereof.
(21).CONFIDENTIAL INFORMATION: The terms and conditions of this Agreement and the transactions contemplated hereby and all non-public, confidential, or proprietary information of Seller, including, but not limited to, documents, data, or business operations, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this Agreement are confidential, solely for the purpose of this Agreement and the transactions contemplated hereby and may not be disclosed or copied unless authorized by Seller in writing. Upon Seller’s request, Buyer shall promptly return all Seller documents and other materials that Buyer has received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party.
(22).SHIPPING TERMS: All shipments shall be F.O.B. Point of shipment, unless otherwise agreed. Title shall pass to Buyer F.O.B. point of shipment, and the risk of loss, destruction or damage in the course of transportation shall be borne by Buyer. Right of possession of the equipment shall remain with Seller until paid for in full.
(23).ACCEPTANCE: Seller’s acceptance is expressly made conditional on Buyer’s assent to Seller’s terms and conditions as set forth herein.
(24).OSHA AND COMPLIANCE WITH LAWS: Equipment furnished shall meet only those OSHA or any other regulatory agency requirements that have been specified in the purchase order and have been accepted by Seller. Seller will use its best efforts to assist Buyer in complying with any Federal, State or local laws, regulations, codes or ordinances which Buyer specified in its purchase order.
(25).GOVERNING LAWS: This agreement shall be construed in accordance with the laws of the State of Texas.
(26).ENTIRE AGREEMENT: EXCEPT AS OTHERWISE PROVIDED HEREIN, THIS DOCUMENT AND MODIFICATIONS THEREOF AGREED UPON IN WRITING, SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN BUYER AND SELLER AND CAN ONLY BE MODIFIED BY A WRITTEN AGREEMENT SIGNED ON BEHALF OF BUYER AND SELLER BY THEIR RESPECTIVE DULY AUTHORIZED REPRESENTATIVES.
Rev. 29JAN2021