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Sales Terms & Conditions

(Standard Sales Terms & Conditions)

1. MODIFICATIONS of SALES TERMS

Terms and Conditions contained in any purchase order or other form of communication from ABB Motors and Mechanical Inc.'s customers, which are additional to or different from these Terms and Conditions, shall be deemed rejected by ABB Motors and Mechanical Inc. unless expressly accepted in writing.

2. ACCEPTANCE of ORDERS

All sales by ABB Motors and Mechanical Inc. are made under and expressly limited to the Terms and Conditions set forth herein. Acceptance shall be in writing or by the beginning of performance hereunder. Provisions of any purchase order or other writing submitted by Buyer shall be of no force and effect, regardless of any provisions to the contrary in any such purchase order or other writing. ABB Motors and Mechanical Inc.'s failure to take exception to the terms and conditions embodied in any purchase order or other writing shall not be construed as a waiver of the above provisions.

3. QUOTATIONS

Acceptance of a quotation by ABB Motors and Mechanical Inc. to offer goods for sale subject to these Terms and Conditions is expressly limited to forty five (45) days from the date the quotation is issued by ABB Motors and Mechanical Inc.

Purchase orders submitted by Buyer for the goods quoted by ABB Motors and Mechanical Inc. shall constitute acceptance of these Terms and Conditions. All purchase orders will be subject to approval by ABB Motors and Mechanical Inc.

4. PRICES and PRICE CHANGES

All prices are net F.O.B. shipping point and are subject to change without notice. In the event of a change in ABB Motors and Mechanical Inc.'s prices, the price for product not shipped will be the price in effect on the date of shipment. If ABB Motors and Mechanical Inc.'s quoted price was based upon delivery to and acceptance by Buyer of a specified quantity of product, such price shall be subject to adjustment if Buyer does not accept the quantity at the times specified in ABB Motors and Mechanical Inc.'s quotation, and Buyer will be invoiced at ABB Motors and Mechanical Inc.'s standard price without quantity discounts, if any, for the quantity of equipment actually accepted by Buyer. All prices and terms of sale are subject to correction for error.

5. TAXES

In addition to any prices, Buyer shall pay the amount of any present or future manufacturer's tax, retailer's occupation tax, use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between ABB Motors and Mechanical Inc. and Buyer. In the event ABB Motors and Mechanical Inc. is required to pay any such tax, fee or charge, Buyer shall reimburse ABB Motors and Mechanical Inc. Buyer shall provide ABB Motors and Mechanical Inc. at the time the order is submitted with an exemption certificate or other document acceptable to the authority imposing such tax, fee or charge.

6. TERMS of PAYMENT

All orders are subject to the approval of ABB Motors and Mechanical Inc. Except as otherwise provided, terms are payment net 30 days from the date of the invoice. If, during the period of performance of an order, the financial condition of Buyer is determined by ABB Motors and Mechanical Inc. not to justify the terms of payment specified, ABB Motors and Mechanical Inc. may demand full or partial payment in advance before proceeding with the work, or satisfactory security or guarantees that invoices will be promptly paid when due, or, at its option without prejudice to other lawful remedies, may defer delivery or cancel this order. If Buyer defaults in any payment when due, or in the event any voluntary or involuntary bankruptcy or insolvency proceedings involving Buyer are initiated by or against Buyer, then the whole order price shall immediately become due and payable upon demand, or ABB Motors and Mechanical Inc., at its option without prejudice to its other lawful remedies, may defer delivery or cancel this order.

Payment Terms - All published prices are cash prices, net 30 days with approved credit. Purchasing card and credit card payments are accepted and processed at time of shipment and are subject to credit pricing.

On orders of $100,000 or more, the standard method of payment will be progressive deposits.

Nothing contained herein shall be construed as authorizing the Buyer to delay or withhold any payment or payments beyond the due date for any goods or machinery sold under the provisions of the Order. It is expressly understood that all claims on the part of the Buyer or of any other party are separate and shall have no bearing on the obligation of the Buyer to make payments for the goods sold under these Terms and Conditions. If Buyer shall fail to make any payment to ABB Motors and Mechanical Inc. within the time provided, a service charge shall accrue monthly from the due date at the maximum rate allowed by applicable law until full payment has been made. In addition to the accrual of such service charge, Buyer shall be liable for all other losses, damages or expenses directly incurred by ABB Motors and Mechanical Inc. as a result of Buyer's failure to make timely payment, including, but not limited to, reasonable attorney's fees incurred with the collection of said payments.

7. DELIVERY - RISK OF LOSS

All sales are F.O.B. point of shipment designated by ABB Motors and Mechanical Inc.

Shipping dates are estimates only which are not guaranteed and are based upon prompt receipt from Buyer of all necessary shipping and other information.

Delivery of product to a commercial carrier at ABB Motors and Mechanical Inc.'s plant or other loading point shall constitute delivery to Buyer, and any risk of loss and further cost and responsibility thereafter for claims, delivery, loss or damage, including, if applicable, placement and storage, shall be borne by Buyer. Claims for shortages or other errors in delivery must be made in writing to ABB Motors and Mechanical Inc. within ten (10) days after receipt of shipment and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer.

ABB Motors and Mechanical Inc. will use its best efforts to maintain shipping schedules, however, UNDER NO CIRCUMSTANCES SHALL ABB MOTORS AND MECHANICAL INC. BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANTICIPATED PROFITS resulting from any delay in shipment or delivery nor shall the failure to deliver goods within the time specified constitute a default. The responsibility of ABB Motors and Mechanical Inc. for proper delivery ceases upon delivery of the goods to the carrier. Any storage costs incurred by ABB Motors and Mechanical Inc. for the storage of goods delayed in shipment at the request of the Buyer shall be paid promptly by the Buyer when invoiced by ABB Motors and Mechanical Inc. In all cases, Buyer shall bear the risk of loss or damage from the FOB point, and the Buyer shall be responsible for the filing of all claims with the carrier.

8. DELAYS - CAUSES BEYOND BALDOR'S CONTROL

ABB Motors and Mechanical Inc. shall not be liable for any ordinary, incidental, or consequential loss or damage as a result of delay in or failure of delivery or installation due to (i) any cause beyond ABB Motors and Mechanical Inc.'s reasonable control, (ii) an act of God, act of the Buyer, embargo or other government act, authority, regulation or request, fire, theft, accident, strike, slowdown or other labor disturbance, war, riot, delay in transportation, or (iii) inability to obtain necessary labor, materials, components, or facilities. Should any of the aforementioned events of force majeure occur, ABB Motors and Mechanical Inc., at its option, may cancel Buyer's order with respect to any undelivered product or extend the delivery date for a period equal to the time lost because of delay. Notice of such election shall be given promptly to Buyer. In the event ABB Motors and Mechanical Inc. elects to so cancel the order, ABB Motors and Mechanical Inc. shall be released of and from all liability for failure to deliver the product, including, but not limited to, any and all claims on behalf of Buyer for lost profits, or any other claim of any nature which Buyer might have. If shipping or progress of the work is delayed or interrupted by Buyer, directly or indirectly, Buyer shall pay for all additional charges resulting therefore.

9. SHIPPING/HANDLING CHARGES

Shipments are F.O.B. point of shipment. Shipping/handling will be collect or prepaid and billed as a separate item on the equipment invoice on the basis of ABB Motors and Mechanical Inc.'s current shipping/handling policies.

10. ELECTRONIC DATA INTERCHANGE/FACSIMILE (FAX)

Orders placed hereunder by Buyer may be transmitted electronically and in such event, such orders shall be subject to the terms and conditions contained in ABB Motors and Mechanical Inc.'s Electronic Data Interchange Agreement, in addition to the terms and conditions contained herein. Orders and other communications may be transmitted and confirmed by fax.

11. DEFAULT

Upon default and placing of this instrument with an attorney for collection or repossession of equipment, Buyer agrees to reimburse attorney fees and court costs incurred by ABB Motors and Mechanical Inc. in connection therewith.

12. PRODUCT CHANGES

ABB Motors and Mechanical Inc. may, at any time and without notice, make changes (whether in design, material, improvements or otherwise) in any catalog goods, and may discontinue the manufacture of any catalog goods, without incurring any obligations of any kind as a result thereof.

13. CHANGES

Buyer may, with the express written consent of ABB Motors and Mechanical Inc. make changes in the specifications for equipment or work covered by the contract. In such event the contract price and delivery dates may be adjusted.  ABB Motors and Mechanical Inc. shall be entitled to payment for reasonable profit plus costs and expenses incurred by it for work and materials rendered unnecessary as a result of such changes and for work and materials required to effect said changes.

14. CANCELLATION

No order submitted to ABB Motors and Mechanical Inc. may be cancelled by Buyer without the prior written consent of ABB Motors and Mechanical Inc., which consent will at all times be conditioned on Buyer's agreement to pay ABB Motors and Mechanical Inc.'s cancellation charge. For finished product, which in ABB Motors and Mechanical Inc.'s judgment is readily resalable to others, the cancellation charge shall be 15% of the invoice price of the equipment. For all other cancellations, the cancellation charge shall amount to all costs and expenses incurred by ABB Motors and Mechanical Inc. and arising out of or in connection with Buyer's order, net of recoverability, but in no event less than 10% of the invoice price of the product or more than the invoice price.

15. INTERNATIONAL SALES

ABB Motors and Mechanical Inc. acknowledges that the parties hereby expressly exclude the application of the Convention on Contracts for the International Sale of Goods to this Agreement or any Purchase Order issued in connection with this Agreement.

16. DRAWINGS - OTHER DESIGN DATA

All specifications, drawings, designs, data, information, ideas, methods, tools, gages, dies, fixtures, patterns and/or inventions made, conceived, developed or acquired by ABB Motors and Mechanical Inc. in connection with procuring and/or executing Buyer's order will vest in and inure to ABB Motors and Mechanical Inc.'s sole benefit notwithstanding any charges therefore which may have been or may be imposed by ABB Motors and Mechanical Inc. Buyer shall not give, loan, exhibit, sell or transfer to any person not then employed by Buyer and authorized to receive such information, or to any organization or entity, any drawing, photograph or specification furnished by ABB Motors and Mechanical Inc. or reproduction thereof which may enable such person, organization or entity to furnish similar goods or parts therefore.

17. RETURN of PRODUCTS

No product or part shall be returned to ABB Motors and Mechanical Inc. without written authorization and shipping instructions first having been obtained from ABB Motors and Mechanical Inc.

18. ASSIGNMENT and SUBCONTRACTING

None of the Buyer's rights under any order shall be assigned by the Buyer to any other person, whether by operation of law or otherwise, without ABB Motors and Mechanical Inc.s prior written approval. ABB Motors and Mechanical Inc. may, without the necessity of obtaining Buyer's prior written consent, subcontract the production of all or any portion of the product.

19. WARRANTIES

All ABB Motors and Mechanical Inc. products are warranted against defects in ABB Motors and Mechanical Inc.'s workmanship and materials.

20. Warranty Period

ABB Motors and Mechanical Inc. standard products are warranted for 12 months from the date of manufacture. Some ABB Motors and Mechanical Inc. products are warranted for a longer period of time as set forth in the separate Limited Warranty and Service Policy.

21. Warranty Remedies

If a ABB Motors and Mechanical Inc. product is defective due to ABB Motors and Mechanical Inc.'s workmanship or materials and the defect occurs during the warranty period, ABB Motors and Mechanical Inc. will either repair the product or replace it with a new one, whichever ABB Motors and Mechanical Inc. believes to be appropriate under the circumstances. ABB Motors and Mechanical Inc. is not responsible for removal or shipping of the ABB Motors and Mechanical Inc. product to the service center, the reinstallation of the ABB Motors and Mechanical Inc. product upon its return to the customer, or any incidental or consequential damages resulting from the defect, removal, reinstallation, shipment or otherwise. Warranty service is available for all ABB Motors and Mechanical Inc. products from ABB Motors and Mechanical Inc.'s Customer Service Center in Fort Smith, Arkansas, and from ABB Motors and Mechanical Inc. Authorized Service Centers. A list of ABB Motors and Mechanical Inc.'s Authorized Service Centers is available from any ABB Motors and Mechanical Inc. District Office, on www.baldor.com or by contacting ABB Motors and Mechanical Inc. at: Customer Service, ABB Motors and Mechanical Inc., P.O. Box 2400, Fort Smith, Arkansas 72902, 479-646-4711 (telephone), 479-648-5792 (facsimile).

Exclusions - This warranty does not:
(i) apply and shall be void with respect to product operated in excess of rated capacity or otherwise not in accordance with installation, maintenance, or operating instructions or requirements, to product repaired or altered by others than ABB Motors and Mechanical Inc. or ABB Motors and Mechanical Inc.'s authorized service agencies, or to product which was subjected to abuse, negligence, misuse, misapplication, accident, damages by circumstances beyond ABB Motors and Mechanical Inc.'s control, to improper installation (if by others than ABB Motors and Mechanical Inc.), operation, maintenance or storage, or to other than normal use or service, and

(ii) apply to product or components not manufactured by or for ABB Motors and Mechanical Inc. With respect to product or components not manufactured by ABB Motors and Mechanical Inc., ABB Motors and Mechanical Inc.'s warranty obligations shall in all respects conform and be limited to the warranty actually extended to ABB Motors and Mechanical Inc. by its suppliers, but in no event shall ABB Motors and Mechanical Inc.'s obligations be greater than those provided under ABB Motors and Mechanical Inc.'s Warranty set forth in this section.

EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ABOVE, BALDOR ELECTRIC COMPANY DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. NO OTHER WARRANTY, EXPRESS OR IMPLIED, WHETHER OR NOT SIMILAR IN NATURE TO ANY OTHER WARRANTY PROVIDED HEREIN, SHALL EXIST WITH RESPECT TO THE GOODS SOLD UNDER THE PROVISIONS OF THESE TERMS AND CONDITIONS. ALL OTHER SUCH WARRANTIES ARE HEREBY EXPRESSLY WAIVED BY THE BUYER. This is the sole warranty of ABB Motors and Mechanical Inc. and no other affirmations or promises made by ABB Motors and Mechanical Inc. shall be deemed to create an express or implied warranty. ABB Motors and Mechanical Inc. has not authorized anyone to make any representations or warranties other than the warranty contained herein.

22. INDEMNIFICATION BY BUYER

Buyer shall indemnify, hold harmless, and defend ABB Motors and Mechanical Inc. and ABB Motors and Mechanical Inc.'s employees and agents from and against any and all damages, liability, claims, losses, and expenses (including reasonable attorneys' fees, court costs, and out-of-pocket expenses) arising out of or resulting in any way from claims by customers of Buyer or third parties against ABB Motors and Mechanical Inc.alleging a breach of contract or warranty by ABB Motors and Mechanical Inc.

23. PATENT RIGHTS

ABB Motors and Mechanical Inc. warrants that the use of the goods delivered hereunder will infringe no claim of any U.S. patent covering the goods themselves; but does not warrant against infringements by reason of the use thereof in combination with other material or in the operation of any process. If ABB Motors and Mechanical Inc. is subject to any claims or charges of patent infringement within the meaning of this paragraph, Buyer or any party in privity with Buyer agrees to hold harmless and indemnify ABB Motors and Mechanical Inc., its successors and assigns, against any and all such claims, demands, and suits, including all damages, expenses and attorney's fees, resulting from such claims, demands, and suits.

24. REGULATORY LAWS AND/OR STANDARDS

ABB Motors and Mechanical Inc. takes reasonable steps to keep its products in conformity with various nationally recognized standards and such regulations as may affect its products; however, ABB Motors and Mechanical Inc. recognizes that its products are utilized in many regulated applications and that from time to time standards and regulations are in conflict with each other.
ABB Motors and Mechanical Inc. makes no promise or representation that its product will conform to any federal, state or local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon for compliance in writing as a part of the contract between Buyer and ABB Motors and Mechanical Inc. ABB Motors and Mechanical Inc. prices do not include the cost of any related inspections or permits or inspection fees.

25. EXPORT CONTROL

Products and associated materials supplied or licensed under this agreement may be subject to various export laws and regulations. It is the responsibility of the exporter to comply with all such laws and regulations.

26. NUCLEAR LIMITATION OF USE

The equipment is not for use in or with any nuclear facility unless specifically so stated in ABB Motors and Mechanical Inc.’s Quotation. If ABB Motors and Mechanical Inc.’s Quotation does expressly acknowledge that ABB Motors and Mechanical Inc.’s equipment is to be used in or with a nuclear facility, ABB Motors and Mechanical Inc.’s Special Nuclear Conditions will be attached hereto and shall control.
Buyer accepts the responsibility for insuring that the equipment is not used in violation of this limitation and Buyer shall indemnify and hold ABB Motors and Mechanical Inc. harmless from any and all liability (including such liability resulting from ABB Motors and Mechanical Inc.’s negligence) arising out of said improper use.

27. LIMITATIONS of LIABILITY - CONSEQUENTIAL DAMAGES

Disclaimer of Damages - UNDER NO CIRCUMSTANCES SHALL BALDOR ELECTRIC COMPANY BE LIABILE OR RESPONSIBLE IN ANY MANNER WHATSOEVER FOR ANY INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANTICIPATED PROFITS RESULTING FROM THE DEFECT, REMOVAL, REINSTALLATION, SHIPMENT OR OTHERWISE UNDER ANY THEORY OF RECOVERY, INCLUDING BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. Damages not recoverable shall include, but not be limited to, loss of profits or revenues, loss of use of the product or associated equipment, cost of substitute equipment, facilities, down time costs, increased construction costs or claims of Buyer's customers or contractors for such damages.

28. LIMITATION OF LIABILITY

ABB Motors and Mechanical Inc. shall not be liable for any loss, claim, expense or damage caused by, contributed to by or arising out of the acts or omissions of Buyer or third parties, whether negligent or otherwise. In no event shall ABB Motors and Mechanical Inc.s liability for any cause of action whatsoever exceed the cost of the item giving rise to the claim, whether based in contract, warranty, indemnity, or tort (including negligence). Any suit arising hereunder must be commenced within one (1) year from the date the cause of action accrues. Except as provided in Article “Indemnity”, ABB Motors and Mechanical Inc. shall not indemnify any party.

29. NO RESPONSIBILITY FOR GRATUITOUS INFORMATION OR ASSISTANCE

If ABB Motors and Mechanical Inc. provides Buyer with assistance or advice which concerns any parts/products/service supplied hereunder or any system or equipment in which any such part/product/service may be installed and which is not required pursuant hereto, the furnishing of such assistance or advice shall not subject ABB Motors and Mechanical Inc. to any liability, whether based in contract, warranty, tort (including negligence) or otherwise.

30. GOVERNING LAW

These Terms and Conditions, and the contract of sale between ABB Motors and Mechanical Inc. and Buyer, shall be governed by and construed in accordance with the laws of the state of Arkansas. Buyer agrees to the jurisdiction of any state or federal court located in Sebastian County, Arkansas and waives any arguments or defenses based upon personal jurisdiction, venue and forum non conveniens. ABB Motors and Mechanical Inc. represents that its products will be produced in compliance with the Fair Labor Standards Act of 1938 as amended.

31. APPLICABILITY

The Terms and Conditions as stated herein are applicable as of the date of this printing and until such time as changed by ABB Motors and Mechanical Inc..

32. PROPRIETARY MATERIALS

ABB Motors and Mechanical Inc. reserves to itself copyrights and other intellectual property rights on all quotations, drawings, manuals, instructions or any other information or data provided to Buyer. Such materials shall remain the property of ABB Motors and Mechanical Inc. and shall not be disclosed to any other third party without ABB Motors and Mechanical Inc.'s prior written permission. If requested, Buyer shall return all items to ABB Motors and Mechanical Inc. and certify, in writing, that all copies thereof have been destroyed.

33. SEVERABILITY

The provisions of these Terms and Conditions are severable and, once accepted, if any provision herein shall be held unenforceable or invalid, such invalidity shall not affect any other provision contained herein.

34. WAIVER

ABB Motors and Mechanical Inc.'s failure to insist on performance of any of these Terms and Conditions herein or to exercise any right or privilege or the waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.

35. ENTIRE AGREEMENT

The Terms and Conditions shall become effective upon acceptance. It is expressly understood and agreed by the Buyer and ABB Motors and Mechanical Inc. that this document (together with Buyer's purchase order, if any, or any separate document to which these Terms and Conditions may be attached) constitute the full understanding of the parties, a complete allocation of the risks between them, and the final and entire agreement between them. Any other Terms and Conditions, whether contained in any purchase order, invoice, acknowledgement or any other document, which may vary from any term of condition contained herein shall not be made except with the written consent of both ABB Motors and Mechanical Inc. and Buyer.