1. Quotation & Contract
1.1 A purchase order, the quotation or sales offer must be provided in writing and has no effect until Emerson?s receipt of a written acknowledgement.
1.2 If there are any conflicts, discrepancies or ambiguities in prices or other documentation, the following order of priority applies: (1) these Terms, (2) EquipNet terms, (3) the Purchase Order and (4) Buyer?s offer.
Unless the Contract says otherwise, the agreed-upon sales price shall exclude all taxes (such as sales, use, value added and similar taxes), duties, levies and similar charges. If applicable, Emerson will invoice all these taxes, duties, levies and charges in accordance with applicable law;
a) exclude freight, packing and handling; and
b) exclude the de-installation and transport of the Goods
c) Emerson may invoice for any freight, packing, handling, de-installation and transport of the Goods performed or paid by Emerson.
a) Buyer will pay Emerson Prior to arrangement of de-installation and/or pickup and transport of the goods. If the Contract says that Emerson will invoice in accordance with a payment schedule, Emerson will invoice in accordance with the initial payment schedule, even if acceptance of Products is delayed due to any reasons not solely attributable to Emerson or its subcontractors, including
(i) Buyer?s failure to execute any of its obligations in accordance with the Contract;
(ii) Buyer?s delays; and
(iii) requests by Buyer for changes or additional information which affect any Buyer?s performance or the schedule.
b) Buyer will pay Emerson by check or direct bank transfer to the Emerson bank account stated in the Contract or invoice, paid in either case from Buyer?s account with a bank in Buyer?s country. Emerson may reject payment by any other method.
c) Emerson may end the Contract if Buyer fails or, in Emerson?s reasonable opinion, appears likely to fail to make payment when due under the Contract or any other contract. This action will not subject Emerson to any penalty or affect its other rights.
3. Buyer Duties
3.1 Buyer must in a timely manner supply the information, documents and instructions Emerson reasonably requests to proceed with its Contract duties.
Unless the Contract says otherwise, Buyer will arrange for any services required for de-installation and loading of the products at Emerson?s location, any applicable documentation required for the purchase and/or exports: If Emerson? arranges transportation and de-installation, Buyer will pay for freight, packing and handling at Emerson?s current costs.
5. Title & Risk
Even if the Contract says otherwise and except as stated herein:
a) for any Goods and Documentation which Emerson or its Affiliate is to export from the United States, title and risk of loss will pass to Buyer when they pass the territorial limits of the US;
b) for all other Goods and Documentation, title and risk of loss will pass to Buyer upon payment for the Goods and related invoices.
6. On-Site Activities
6.1 Each party must ensure that its Personnel will, while on the premises of the other party, comply with the other
party?s reasonable site rules are communicated to the visitor upon arrival
6.2 Emerson and Buyer will maintain safe working conditions at the Site, including implementing appropriate procedures regarding Hazardous Materials, confined space entry, and energization and de-energization of power systems (electrical, mechanical and hydraulic) using safe and effective lock-out/tag-out ("LOTO") procedures (including physical LOTO or a mutually agreed upon alternative method).
6.3 Operation of Buyer's equipment is the responsibility of Buyer. Buyer will not require or permit Seller?s Personnel to operate Buyer?s equipment.
6.4 Buyer will notify Emerson if Buyer becomes aware of:
a) conditions at the Site differing materially from those disclosed by Seller, or
b) previously unknown physical conditions at Site differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract.
6.5 Disclaimer. EXCEPT AS WRITTEN IN THIS CLAUSE 6, THE GOODS AND SERVICES ARE PROVIDED ?AS IS?.The limited warranties set out in this Clause 6 are the only warranties made by Emerson and can be changed only with Emerson?s signed written agreement. THE WARRANTIES AND REMEDIES IN CLAUSE 6 ARE EXCLUSIVE. THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ABOUT MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR ANYTHING ELSE FOR ANY OF THE GOODS, DOCUMENTATION OR SERVICES.
No change to the Contract applies unless agreed in writing by Emerson and the Buyer.
8.1 Emerson and Buyer ("Discloser") may each provide the other ("Recipient") with Confidential Information in connection with the Contract.
a) In Clause 8, "Confidential Information" is:
b) information that is designated in writing as "confidential" or "proprietary" by Discloser at the time of written disclosure;
c) information that is orally designated as "confidential" or "proprietary" by Discloser at the time of oral or visual disclosure and is confirmed to be "confidential" or "proprietary" in writing within twenty (20) days after the oral or visual disclosure; and
d) prices for Products and Services.
8.2 Subject to Clause 8, Recipient must:
a) use Confidential Information only in connection with the Contract and use of Products and Services,
b) take reasonable measures to prevent disclosure of Confidential Information to third parties, and
c) not disclose Confidential Information to a competitor of Discloser.
8.3 Notwithstanding Clause 8:
a) Emerson may disclose Confidential Information to its affiliates and subcontractors in connection with performance of the Contract;
b) a Recipient may disclose Confidential Information to its auditors;
c) Buyer may disclose Confidential Information to lenders as necessary for Buyer to secure or retain financing needed to perform its obligations under the Contract; and
d) Recipient may disclose Confidential Information to any other third party with the prior written permission of Discloser; provided that (i) before each disclosure, Recipient obtains a non-disclosure commitment from the subcontractors, auditors, lenders and other permitted third party that prohibits disclosure of the Confidential Information and (ii) Recipient remains responsible for any unauthorized use or disclosure of the Confidential Information.
8.4 Upon request, Recipient must return to Discloser or destroy all copies of Confidential Information except to the extent that a specific provision of the Contract entitles Recipient to retain an item of Confidential Information. Emerson may also retain one archive copy of Buyer?s Confidential Information.
8.5 The obligations under Clause 8 do not apply to any portion of the Confidential Information that is:
a) or becomes generally available to the public other than as a result of disclosure by Recipient, its representatives or its affiliates;
b) or becomes available to Recipient on a non-confidential basis from a source other than Discloser when, to the best of Recipient's knowledge, the source is not subject to a confidentiality obligation to Discloser;
c) independently developed by Recipient, its representatives or affiliates, without reference to the
Confidential Information; or
d) required to be disclosed by Law or valid legal process, provided that the Recipient intending to make disclosure in response to such requirements or process shall promptly notify the Discloser in advance of such disclosure and reasonably cooperate in attempts to maintain the confidentiality of the Confidential Information.
8.6 As to any individual item of Confidential Information, the restrictions under Clause 8 expire two (2) years after the date of disclosure.
8.7 Each Discloser warrants that it has the right to disclose the information that it discloses.
8.8 Neither Buyer nor Emerson shall make any public announcement about the Contract without prior written approval of the other.
8.9 Clause 8 does not supersede any separate confidentiality or non-disclosure agreement signed by the parties.
9.1 Buyer shall indemnify, defend and hold harmless Emerson, its officers, agents and employees, from and against any and all liabilities, losses, expenses, liens, claims, demands, and causes of action asserted by a third party arising out of any negligent act, omission or intentional misconduct of Buyer, its officers, agents, employees, independent contractors or assigns in the course of the Contract.
9.2 Buyer indemnifies Emerson for any and all claims, damages, losses, and expenses arising out of or relating to any Hazardous
Materials which are or were:
a) improperly handled or disposed of by Buyer or Buyer's employees, agents, contractors or subcontractors; or
b) brought, generated, produced or released on site by parties other than Emerson.
10. Force Majeure
Neither party is liable for non-performance or delay due to unforeseen circumstances or causes beyond its reasonable control, including acts of God; war; armed conflict; terrorism; fire; flood; accident; weather; failure or interruption of public and private computer or telecommunication systems, networks, and infrastructure; Cyber Attacks; sabotage; strikes or labor disputes; civil disturbances or riots; governmental decisions, requests, restrictions, Law (including the denial, failure to issue or loss of export or re-export licenses); unavailability of or delays in transport; or shortage of materials or parts.
11. Export Controls and Compliance
11.1 Buyer and Emerson will comply with all:
a) export, import and other trade compliance Laws of the territories in which Buyer and Emerson are established, from which the Goods, Firmware, Software, Services and any technical data are supplied or shipped, and to which the Goods, Firmware, Software, Services and any technical data will be taken or eventually used; and
b) Laws against bribery, corruption and money-laundering.
11.2 Buyer agrees not to use, transfer, release, export or re-export any Goods or Emerson-supplied technical data contrary to trade compliance Law or to any license or required government authorization.
11.3 Neither Emerson nor Buyer will engage in any activity that exposes the other party or an Affiliate to a risk of penalties under Laws forbidding improper payments, including bribes.
12. Laws and Regulations
12.1 Both parties will comply with all Laws, except to the extent a party is prohibited from doing so based upon a conflict of Laws.
12.2 Notwithstanding any other provision, Buyer must, in a timely manner, obtain, effectuate and maintain in force any required permit, license, exemption, filing, registration and other authorization, including, but not limited to, building and environmental permits, import licenses, environmental impact assessments, and foreign exchange authorizations, required for the lawful performance of Services at the Site or fulfillment of Buyer's obligations
12.3 Emerson objects and does not agree to the application of any governmental procurement provision to the Contract.
Buyer accepts all Goods, Software, or other Documentation with these restrictions.
a) Goods shall be provided in ?as is, where is? condition unless Emerson and buyer have specifically agreed to alternate arrangements or the correction of any defects pertinent to the sale.
b) Buyer agrees to communicate these restrictions in writing to all later Buyers or users; and
c) Buyer agrees to defend and indemnify Emerson and Emerson Affiliates from all claims arising from sale or use of the Goods. This indemnity covers every sort of claim, including allegations of negligence, compliance with Law, strict liability or product liability.
14. Limitation of Liability
14.1 EMERSON AND ITS AFFILIATES WILL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE. THE REMEDIES OF BUYER STATED IN THIS CONTRACT ARE EXCLUSIVE. REGARDLESS OF THE TYPE OF THE CLAIM (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), EMERSON?S AND ITS AFFILIATES? LIABILITY TO BUYER AND ITS AFFILIATES WILL NEVER EXCEED THE CONTRACT PRICE.
14.2 EMERSON WILL NOT BE LIABLE FOR (INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. ?CONSEQUENTIAL DAMAGES? INCLUDE BUT ARE NOT LIMITED TO LOSS OF ANTICIPATED PROFITS, REVENUE, PRODUCTION OR USE AND COSTS INCURRED INCLUDING WITHOUT LIMITATION FOR CAPITAL, FUEL AND POWER, REPLACEMENT PRODUCT AND CLAIMS OF EACH PARTY?S AFFILIATES.
15. Applicable Law, Disputes, Notices
15.1 Missouri law governs the Contract and its interpretation. The parties agree to exclude any effect on that law of the 1980 United Nations? Convention on Contracts for the International Sale of Goods and, so far as legally possible, any rules which might apply the laws of another jurisdiction.
15.2 The State of Missouri?s courts or the U.S. federal district courts in Missouri have exclusive jurisdiction over all disputes arising out of the Contract.
15.3 All notices and claims connected with the Contract must be in writing.
16. Entire Agreement
The Contract is the exclusive and entire agreement between the parties on its subject matter. At acknowledgment, the Contract supersedes all previous or existing agreements, negotiations, representations and proposals, whether written, oral, express or implied, on that subject matter.
In these Terms:
Affiliate of an entity is anybody that entity controls, is controlled by or is under common control with. ?Control? of an entity means the direct or indirect beneficial ownership of more than half the shares, or other participating interest with the right to vote or to receive profits of that entity.
Contract is the agreement between Buyer and Emerson for the supply of the Goods and any Documentation, Software and Services. The Contract consists of: quotation, the PO, the acknowledgement, these Terms, and all other documents contained or referred to in the agreement. (See Clause 1.3 for the order of priority of these documents.)
Contract Price is the total price the Buyer must pay Emerson for the Goods, Documentation, Services and Software licenses.
Buyer is the buyer of the Goods
Buyer Information is:
a) Buyer?s name, address, phone number, ship-to recipient and address.
b) similar details for the end-user (if that is not the Buyer); and
c) Buyer?s primary contact?s name, address, phone number, and email address.
Cyber Attack means cyber-attack, intrusion attempt, unauthorized third-party access, and other malicious activity.
Day is any day except Saturdays, Sundays and public holidays at Emerson?s office named in the Contract. Documentation means any manuals, drawings and other documents supplied with the Goods, Software and Services.
Goods are the goods supplied under the Contract.
Hazardous Materials are any toxic or hazardous substance, hazardous material, dangerous or hazardous waste, dangerous good, radioactive material, petroleum or petroleum-derived products or by-products, or any other chemical, substance, material or emission, that is regulated, listed or controlled pursuant to any Law of the United States or the country of the Site.
Law is applicable law, including statutory rules and regulations, decrees, directives, orders, by-laws and ordinances having the force of law.
Personnel is anyone who works for a party (or for an Affiliate or subcontractor of that party). It includes both employees and contract staff.
PO is Buyer?s purchase order, for the supply of the Goods, Software, Documentation and Services.
Services are any services to be performed under the Contract.
Site means the place(s) which are identified in the Contract as where the Goods are, and the Services are performed.
Software is any software Emerson must supply under the Contract, including Application Software.
Software License Agreement is:
a) the applicable software license agreement, if there is one, of Emerson, its Affiliate or third party owner of the Software; or
b) in any other case, the applicable license terms of the owner.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives, entered into as of the date written below.
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