1. APPLICABILITY -
All descriptions, quotations, proposals,
offers, acknowledgments, acceptances and sales of parts and accessories
("Products") sold on the manvillemotor.com website ("Website") of the Manville
Electric Motor Co. Inc. ("Company") are subject to and shall be governed
exclusively by the provisions of these STANDARD TERMS AND CONDITIONS OF SALE
(the "Agreement"). Purchaser's offer to purchase Products from Company is
limited to the terms and conditions of this Agreement. Any terms or
conditions in addition to, or inconsistent with those stated herein, that are
proposed by Purchaser in any offer to Company are hereby, by reference, totally
rejected. No such additional, different or inconsistent terms and
conditions shall become part of this Agreement between Company and Purchaser
unless expressly agreed to in a writing signed by both parties. Company's
acceptance of any offer to purchase by Purchaser is expressly conditioned upon
Purchaser's full agreement to all the terms and conditions herein stated, and
any terms in addition to, or inconsistent with those contained in Purchaser's
Product order or receipt by Purchaser of Company's Products, shall in all events
constitute full acknowledgment of and assent to the terms and conditions in this
2. LIMITED WARRANTY -
Any rebuilt item purchased from Company on the Website shall be free from
defects in material or workmanship under normal use and service (the "Limited
Warranty"). This Limited Warranty with respect only to rebuilt items is
for defects reported to Company no later than six (6) months from the date of
delivery of the Products to the Purchaser's location or 600 hours of use.
Products repaired or replaced under this Limited Warranty are warranted for six
(6) months from the date of delivery or 600 hours of use.
All new items will be
subject to the respective manufacturer's warranty.
EXCLUSIONS: Specifically EXCLUDED from this
Limited Warranty are:
items, cosmetic deterioration or electrical components susceptible to
fluctuations in electric current.
(b)Damage to a Product resulting from inadequate
maintenance, neglect, abuse, accident or collision.
(c)Damage to a Product resulting from installation
or use of non-Company approved parts or accessories.
(d)Damage to a Product during shipment to the
(e)Any item sold has "used".
REMEDY: Purchaser's sole and exclusive remedy
under this Limited Warranty in the event of a defect in material or workmanship
in the Product is that Company will, at its sole option, repair or replace any
defective Product. If Company elects to repair or replace a defective Product,
Company may at its discretion provide a factory reconditioned Product or new
Product from an alternate supplier. All replaced Products become the sole
property of Company. This exclusive remedy will not be deemed to have
failed of its essential purpose so long as Company has made reasonable efforts
to repair or replace the defective Product.
LIMITED WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY PROVIDED FOR THE PRODUCTS
AND IS MADE IN LIEU OF ALL OTHER WARRANTIES, IMPLIED OR EXPRESSED, INCLUDING BUT
NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, ALL SUCH OTHER WARRANTIES BEING EXPLICITLY DISCLAIMED.
LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER
RIGHTS WHICH VARY FROM STATE TO STATE (OR JURISDICTION TO JURISDICTION).
THE RESPONSIBILITY OF COMPANY FOR PRODUCT MALFUNCTIONS AND DEFECTS IS LIMITED TO
REPAIR AND REPLACEMENT OF THE PRODUCTS AS SET FORTH IN THE LIMITED WARRANTY.
ALL EXPRESS AND IMPLIED WARRANTIES FOR THE PRODUCT, INCLUDING BUT NOT LIMITED TO
ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
ARE LIMITED IN TIME TO THE TERM OF THE LIMITED WARRANTY. NO WARRANTIES, WHETHER
EXPRESS OR IMPLIED, WILL APPLY AFTER THE LIMITED WARRANTY PERIOD HAS EXPIRED.
SOME STATES DO NOT ALLOW SPECIFIC LIMITATIONS ON IMPLIED WARRANTIES OR THEIR
DURATION, SO THIS LIMITATION MAY NOT APPLY TO YOU
Company reserves the
right to improve, modify or change the design of any Company Product without
being responsible to modify previously manufactured Products.
No Company employee or
representative, or any other person, has any authority to bind Company beyond
the terms of this Limited Warranty without the express written approval of the
Company Warranty Department.
3. DELIVERY, TITLE AND RISK OF LOSS -
The Products will be delivered to the Purchaser's designated location and
risk of loss will transfer upon delivery to the common carrier. Title will
transfer upon delivery of the Products by Company to the common carrier.
Unless otherwise indicated in the purchase order, all delivery dates specified
in the purchase order are estimates only and time is not of the essence in
Company's performance of any purchase order. IN NO EVENT SHALL COMPANY
BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR LIQUIDATED DAMAGES
ARISING OUT OF OR RELATED TO A DELAY OR FAILURE TO DELIVER COMPANY PRODUCTS.
4. PACKING and SHIPMENT -
Purchaser shall promptly and thoroughly inspect all shipments of Products
immediately after delivery. Purchaser shall notify Company in writing
within two (2) business days after the delivery of any Product of any damage to
the Product or error in the shipment. Company reserves the right to refuse
to adjust any errors in shipment or damage to the Products in the event the
foregoing procedure has not been followed. Purchaser shall within five (5)
business days after delivery notify the Company in writing of any other failure
of Products to conform to this Agreement which is reasonably discoverable upon
delivery. All failures of Products to conform to this Agreement not
reported to the Company as required by this Section 4 will be deemed forever
5. TAXES - Any applicable duties or
sales, use, excise, value-added or similar taxes will be added to the price and
included in the invoice.
6. TERMS OF PAYMENT -
(a) The full price of all Products shall be due
and payable in cash or cash equivalent upon order of the Products, unless
Company has agreed in writing to extend credit to Purchaser, in which event the
price of all Products delivered pursuant to such extension of credit shall be
due and payable as provided in such separate writing. Company may at any
time, and for any reason whatever, revoke its extension of credit or alter the
terms and conditions thereof with respect to any sale without prior notice to
Purchaser prior to shipment.
(b) Unless otherwise agreed to by Company, all
payments shall be in United States dollars.
(c) On late payments, the price shall, without
prejudice to Company's right to immediate payment, be increased by the lesser of
1 1/2% per month on the unpaid balance or the maximum permitted by law.
(d) If any time in Company's reasonable
judgment, Purchaser is unable or unwilling to meet the payment terms specified,
Company may require satisfactory assurance or full or partial payment as a
condition to commencing or continuing manufacture or making shipment, and may,
if shipment has been made, recover the Products from the carrier, pending
receipt of such assurances.
7. LIMITATION OF LIABILITY - IN NO CASE
SHALL COMPANY OR ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, INSURERS AND ATTORNEYS BE LIABLE TO PURCHASER OR ANY THIRD
PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES,
INCLUDING BUT NOT LIMITED TO LOSSES FOR PROPERTY DAMAGE, PERSONAL INJURY, DEATH,
ECONOMIC LOSS OR LOSS OF CONVENIENCE, ARISING FROM OR RELATED TO ANY ALLEGED
FAILURE OF A PRODUCT OR ANY OTHER BREACH OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT, WHETHER OR NOT MANVILLE ELECTRIC MOTOR CO., INC. WAS APPRISED OF THE
FORSEEABILITY OF SUCH DAMAGES OR LOSSES. THE RIGHT OF PURCHASER TO RECOVER
DAMAGES WITHIN THE LIMITATIONS SET FORTH IN THE LIMITED WARRANTY IS PURCHASER'S
EXCLUSIVE ALTERNATIVE REMEDY IF THE LIMITED REMEDY OF REPAIR OR REPLACEMENT OF
THE PRODUCT FAILS OF ITS ESSENTIAL PURPOSE. THE PARTIES AGREE THAT THIS
ALTERNATIVE REMEDY WILL BE ENFORCEABLE EVEN IF THE LIMITED REMEDY OF REPAIR OR
REPLACEMENT FAILS OF ITS ESSENTIAL PURPOSE.
8. FORCE MAJEURE -
The Company shall not
be liable to Purchaser or any third party for Company's failure to perform any
of its obligations under this Agreement when the failure is caused in whole or
in part by the occurrence of any contingency beyond the control of the Company
or its Affiliates, including but not limited to war (whether an actual
declaration thereof is made or not) or hostility; sabotage, terrorism,
insurrection, riot or other act of civil disobedience, crime, tort or other
unlawful act; act of a public enemy; failure or delay in transportation; act of
any government or any agency, subdivision or branch thereof; judicial action;
strike or other labor dispute; accident, fire, epidemic, explosion, flood, storm
or other act of God; shortage of labor, fuel, materials or machinery, or
technical failure; or delay or failure to perform by any supplier. In the
event of a shortage of Products which makes it impossible or impracticable for
the Company to fill all orders from all of its purchasers in the quantities and
within the time periods originally agreed upon, the Company will allocate its
available Products in any manner it deems reasonable.In no event shall Purchaser's
lack of finances or ability to perform or pay be considered an event of Force
9. DISPUTES WITH
Arbitration. For any claim (excluding claims for injunctive or other
equitable relief) where the total amount of the award sought is less than
$10,000.00 USD, the party requesting relief may elect to resolve the dispute in
a cost effective manner through binding non-appearance-based arbitration. If a
party elects arbitration, that party will initiate such arbitration through an
established alternative dispute resolution (ADR) provider mutually agreed upon
by the parties. The ADR provider and the parties must comply with the following
rules: a) the arbitration shall be conducted by telephone, online and/or be
solely based on written submissions, the specific manner shall be chosen by the
party initiating the arbitration; b) the arbitration shall not involve any
personal appearance by the parties or witnesses unless otherwise mutually agreed
by the parties; and c) any judgment on the award rendered by the arbitrator may
be entered in any court of competent jurisdiction.
(b) Law and Forum for Disputes. Except as otherwise agreed by the parties or as described
in section 9(a) above, you agree that any claim or dispute you may have against
Manville must be resolved by a court located in Shelby County, Alabama. You
agree to submit to the personal jurisdiction of the courts located within Shelby
County, Alabama for the purpose of litigating all such claims or disputes. This
Agreement shall be governed in all respects by the laws of the State of Alabama,
without regard to conflict of law provisions.
(c) Improperly Filed Litigation. All claims you bring against Manville must be resolved in
accordance with section 9 of this Agreement. All claims filed or brought
contrary to section 9 shall be considered improperly filed a breach of this
Agreement. Should you file a claim contrary to section 9, Manville may recover
attorney's fees and costs (including in-house administrative staff) up to
$1,000.00 USD, provided that Manville has notified you in writing of the
improperly filed claim, and you have failed to promptly withdraw the claim.
(d) Insolvency Proceedings. If any proceeding by or against you is commenced under any
provision of the United States Bankruptcy Code, as amended, or under any other
bankruptcy or insolvency law, Manville will be entitled to recover all
reasonable costs or expenses (including reasonable attorneys' fees and expenses)
incurred in connection with the enforcement of this Agreement.
10. STATUTE OF
LIMITATIONS - To the extent permitted by applicable law, any lawsuit for
breach of contract, including breach of warranty, arising out of or related to
the transactions covered by this Agreement, must be commenced not later than
twelve (12) months from the date the cause of action arose.
COMPLIANCE WITH EXPORT LAWS AND REGULATIONS -
Products manufactured by Company, as well as
technical data related thereto, are subject to export licensing controls under
the U.S. Export Administration Regulations, the U.S. International Traffic in
Arms Regulations and the U.S. Department of Treasury's boycott and export
control regulations, which require licensing for and/or prohibit the export or
diversion of the Company's products to certain countries, entities or
individuals. If Purchaser is responsible for obtaining export approvals,
Purchaser warrants that it will not assist or participate in any export of
Products or related technical data without first obtaining the required export
license and will not knowingly assist or participate in any such diversion or
other violation of applicable U.S. laws and regulations. If Company is
responsible for obtaining export approvals, Purchaser shall assist Company, as
necessary, in obtaining such approvals. Purchaser shall indemnify and hold
harmless Company for any losses or claims arising out of or related to
Purchaser's failure to comply with applicable export control laws and
COMPLIANCE - In the event Purchaser resells the Products outside of the
United States, Purchaser certifies that neither Purchaser nor any of its
officers, employees or representatives have paid, offered to pay or promised to
pay, or authorized the payment of, directly or indirectly through any other
person or firm, anything of value (in the form of compensation, gift,
contribution or otherwise) to: (a) any person or entity employed by or acting
for or on behalf of any other purchaser, whether private or governmental, for
the purpose of inducing or rewarding any favorable action by such purchaser in
connection with this transaction; or (b) any government official, political
party or official of such party, or any candidate for political office, for the
purpose of inducing or rewarding favorable action or the exercise of influence
by such official, party or candidate in connection with this transaction.
Purchaser shall indemnify and hold harmless Company and its affiliates for any
losses or claims arising out of or related to Purchaser's failure to comply with
the provisions of this Section 12.
RELATIONSHIP OF THE PARTIES -
Nothing in this Agreement makes Company or Purchaser the agent
or legal representative of the other party for any purpose. Neither party
has authority to assume or to create any obligation on behalf of the other
14. WAIVER - The failure of Company to
enforce any right or remedy provided in this Agreement or any other agreement
between the parties, or by law, on a particular occasion will not be deemed a
waiver of that right or remedy on a subsequent occasion or a waiver of any other
right or remedy.
15. SEVERABILITY - A finding that any
provision of this Agreement is invalid or unenforceable in any jurisdiction will
not affect the validity or enforceability of any other provision of this
Agreement or the validity or enforceability of that provision in any other
16. ASSIGNMENT and DELEGATION - No right
or interest in the sale of Products hereunder shall be assigned by Purchaser
without the written permission of Company, and no delegation of any obligation
owed, or the performance of any obligation by Purchaser, shall be made without
the written permission of Company. Any attempted assignment or delegation shall
be wholly void and totally ineffective for all purposes unless made in
conformity with this Section 16. Company shall have the right to assign this
Agreement or any related purchase order and its obligations thereunder to any
affiliate of Company or any successor to substantially all of the assets of
Company. In the event of a proper assignment, this Agreement shall be binding
upon and inure to the benefit of either party's successors and assigns.
17. THIRD PARTY RIGHTS - Notwithstanding
any provision of law, no third party shall have any right to enforce this
Agreement or any other contractual rights against Company or its affiliates,
except as explicitly set forth in this Agreement.
18. INTERPRETATION, PAROL EVIDENCE -This Agreement is intended as a final expression of the relationship between
Company and Purchaser and as a complete and exclusive statement of the terms
thereof. No course of prior dealings between Company and Purchaser, and no
usage of the trade shall be relevant to supplement or explain any term used
herein. Acceptance or acquiescence in a course of performance rendered
hereunder shall not be relevant to determine the meaning of this Agreement even
though the accepting or acquiescing party has knowledge of the performance and
opportunity for objection. Whenever a term defined by the Uniform
Commercial Code is used herein, the definition contained in the Uniform
Commercial Code shall control.
ENTIRE AGREEMENT - This Agreement, including attachments hereto,
constitutes the entire understanding and agreement between the parties and
supersedes any prior oral or written agreements with respect to the subject
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