1. Applicability. These terms and conditions (“Terms”) govern the sale of goods (“Products”) by EMX Industries, LLC dba EMX Industries, Inc. and its subsidiaries and affiliates (collectively, “EMX”) and apply to all purchases of Products from EMX by any purchaser (“you”, “your” or “Purchaser”).
2. Price, Taxes and Payment. You agree to pay EMX the Product prices in effect at the time of Order placement. Prices are subject to change by EMX for any reason, including but not limited to your modification of orders, response to market conditions, or prices quoted in error. All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Purchaser. Purchaser shall be responsible for all such charges, costs and taxes; provided, that, Purchaser shall not be responsible for any taxes imposed on EMX’s net income. Purchaser shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with EMX, whether relating to EMX’s breach, bankruptcy or otherwise.
3. Order Cancellation, Modification, and Returns. Changes in specifications or designs relating to any Products, changes in delivery schedules or reschedules or cancellations of Orders are not permitted unless EMX has accepted same in writing, has determined the additional charge to be made, if any, and the same has been paid by you. No returns will be accepted without an authorized Return Material Authorization (RMA) number provided by EMX. Contact EMX’s Customer Service at 1-216-518-9888 to request an RMA number.
4. Delivery. Quoted shipping dates are good faith estimates and are subject to change. EMX reserves the right, without liability or penalty, to ship prior to the quoted ship date and to ship in installments. Each shipment will constitute a separate sale, and Purchaser shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Purchaser’s purchase order. EMX will not be liable for any delays, losses or damages in transmit or due to any failure or delay in its performance as result of any cause(s) beyond its reasonable control. In its sole discretion EMX may allocate, defer, delay or cancel without liability any order delayed by any such cause(s).
a. EMX will deliver the Products “FCA” (as defined in INCOTERMS 2020) EMX’s designated facility indicated in the EMX confirmation of sale using EMX’s standard methods for packaging such Products. You shall, at your sole cost and expense, be responsible for obtaining all licenses and permits and for satisfying all formalities as may be required to import the Products into any other country in accordance with then prevailing laws, rules, regulations and ordinances. Any extra charge incurred for additional services, including loading, storage and handling, will be paid by you. Title to the Products and risk of loss or damage to Products shall pass to you upon EMX’s tender to carrier, to you or your designated agent, whichever occurs first. If you have not specified a carrier in your Order, EMX may select the carrier but will not be deemed thereby to assume any liability in connection with the shipment nor will the carrier be construed to be an agent of EMX.
5. Inspection and Acceptance. You shall inspect the Products upon arrival and notify EMX in writing within 24 hours of delivery of any claims that the Products do not conform to specifications or of damage. Failure to give such written notice during such period will constitute satisfactory shipment by EMX and irrevocable acceptance by you of all Products. Notwithstanding the foregoing, claims for loss or damage of Products which EMX determines occurred in transit must be made to the carrier and not to EMX.
6. EMX Software. Some EMX products have embedded software. Some EMX products use software that is provided separately from those EMX products. All of the software that is embedded in the Products or provided with the Products (the “EMX Software”) is subject to this Agreement. To the extent not granted in Supplementary Terms, EMX hereby grants to you a single, personal, non-sublicensable and nonexclusive license to use EMX Software in or in connection with the Products for which they are provided to you under this order, to the limited extent necessary for the installation and use of the specific Products to which it relates, and to copy EMX Software as necessary for those purposes only. No license to use EMX Software in source code form is granted. You must not modify, decode, clone, disassemble, decompile, decrypt, reverse engineer or otherwise attempt to derive or gain access to the source code of any EMX Software. Except as provided in this Section, no license to any EMX Software is granted to you. All updates, modifications and enhancements to EMX Software that are made available to you will be deemed part of that EMX Software and will be governed by this Agreement.
7. EMX Documentation and Technical Information. Documentation (“EMX Documentation”) is provided with some EMX products. All of the EMX Documentation that is provided with the Products is subject to this Agreement. EMX hereby grants to you a single, personal, non-sublicensable, and nonexclusive license to use EMX Documentation to the limited extent necessary for the installation and use of the specific Product to which it relates, and to copy EMX Documentation as necessary for those purposes. Except as provided in this Section, no license to any EMX Documentation is granted to you. All updates, modifications and enhancements to EMX Documentation that are made available to you will be deemed part of that EMX Documentation and will be governed by this Agreement. You must not remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the EMX Software or Documentation, including any copy thereof.
8. Third Party Software. The use and operation of some EMX products requires software not licensed by or provided by EMX. You are responsible for obtaining the third party software, and the rights to use the third party software, that are necessary for the proper operation of the Products.
9. Limited Warranty.
10. Software Warranty. ALL EMX SOFTWARE AND EMX DOCUMENTATION ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE.” EMX MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO EMX SOFTWARE OR EMX DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH EMX HEREBY EXPRESSLY DISCLAIMS.
11. LIMITATION OF LIABILITY. IN NO EVENT WILL EMX BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY EXTRA COSTS, EXPENSES, LOSSES, LOSS OF PROFITS, OR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL DAMAGES OR PUNITIVE DAMAGES OF ANY KIND, LOSS OF USE, LOST PROFITS OR REVENUE, LOSSES SUSTAINED AS THE RESULT OF INJURY (INCLUDING DEATH) TO ANY PERSON, OR LOSS OF OR DAMAGE TO PROPERTY (INCLUDING WITHOUT LIMITATION, PROPERTY HANDLED OR PROCESSED BY THE USE OF THE PRODUCTS) OR LOSS OF DATA OR DIMINUTION IN VALUE, HOWEVER CAUSED, WHETHER RESULTING FROM ANY PRODUCT, SOFTWARE OR DOCUMENTATION DEFECT OR FROM THE USE OR INABILITY TO USE THE PRODUCT, SOFTWARE OR DOCUMENTATION, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT OR WARRANTY, STATUTE, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT EMX WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT WILL EMX’S AGGREGATE LIABILITY OF ANY KIND WITH RESPECT TO EMX PRODUCTS, OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT OR WARRANTY, STATUTE, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT PAID BY YOU DURING THE PAST THREE MONTHS TO EMX UNDER THIS AGREEMENT FOR THE PRODUCT THAT GAVE RISE TO THE CLAIM.
12. Insurance. During the term of this Agreement and for a period of one (1) year thereafter, Purchaser shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1,000,000 with financially sound and reputable insurers. Upon EMX’s request, Purchaser shall provide EMX with a certificate of insurance from Purchaser’s insurer evidencing the insurance coverage specified in this Agreement. The certificate of insurance shall name EMX as an additional insured. Purchaser shall provide EMX with thirty (30) days’ advance written notice in the event of a cancellation or material change in Purchaser’s insurance policy. Except where prohibited by law, Purchaser shall require its insurer to waive all rights of subrogation against EMX’s insurers and EMX.
13. Your Indemnification. You will release, indemnify, defend and hold harmless EMX and EMX’s employees, officers, directors and suppliers against all loss, cost, damage and expense (including reasonable attorney’s fees and cost of suit) arising out of or related to (i) Purchaser’s breach of this Agreement, (ii) claims of negligence, strict liability, product liability, breach of warranty (except warranty claims properly made by you) or otherwise with respect to the Products that are bought by you, your successors or assigns, or any third party, and (iii) your use, sale or lease of the Products.
14. Intellectual Property. Except to the extent you have supplied specifications, drawings or other intellectual property owned or controlled by you prior to the purchase of the Products (“Pre-Existing Intellectual Property”) to EMX for the development of Products specifically for you that incorporate your Pre-Existing Intellectual Property, you acknowledge and agree that as between you and EMX, EMX is the sole owner of all intellectual property associated with EMX Products, including trade secrets, know-how, copyrights, trademarks, service marks, trade dress, and patents, and you will not directly or indirectly do anything to assert an interest in or to claim any rights to EMX’s intellectual property. To the extent you submit Pre-Existing Intellectual Property to EMX for the development of Products, you hereby grant EMX a non-exclusive license to the extent necessary to develop the Products for you. All right, title and interest in any inventions, developments, improvements or modifications of Products made by Purchaser or EMX shall exclusively remain with EMX. If Purchaser acquires any intellectual property rights in or relating to any Products purchased under this Agreement (including any rights in any trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to EMX without further action by either party.
15. Compliance with Law. Purchaser shall conduct its business in an ethical manner and in compliance with all applicable laws, rules, regulations and ordinances, including, without limitation, the U.S. Foreign Corrupt Practices Act and U.S. export control laws and regulations. You agree that you will not resell or transship the Products or any technical information regarding the Products: (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. Purchaser shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. EMX may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Products.
16. Force Majeure. EMX will be excused from, and will not be liable nor be deemed to have defaulted under or breached this Agreement for any delay or non-performance under this Agreement that is caused by or arises from, in whole or in part, an occurrence beyond the control of EMX or EMX’s suppliers, including but not limited to acts of war (declared or not), invasion, hostilities (whether war is declared or not), terrorist threats or acts, sabotage, insurrection, riot or other act of civil disobedience or unrest, accident, fire, explosion, flood, storm or other act of God, epidemic, pandemic, government order, law, or actions that renders performance impossible or commercially impractical, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns, or other industrial disturbances, shortage of labor, fuel, shortages or price increases for power, raw material, shipping containers or ships or other modes of transportation used to deliver the Products, or delays at ports of entry, or machinery, or technical or yield failure that are due to circumstances or occurrences beyond EMX’s control. In the event of any such delay or nonperformance, EMX may, at its option, and without liability, cancel all or any portion of an Order or this Agreement or extend any date upon which any performance hereunder is due.
17. Termination. Either party may terminate this Agreement by giving notice in writing to other party if the other party materially breaches this Agreement and does not cure the breach within thirty (30) days of receipt of written notice of the breach. In addition to any other remedies that may be provided under this Agreement, EMX may cease work, terminate an Order or this Agreement, otherwise discontinue any ongoing supply to or business with you, in whole or in part, at any time, without liability, if you fail to pay any amount when due under this Agreement or file a petition of any type as to your bankruptcy, are declared bankrupt, become insolvent, make an assignment for the benefit of creditors, or go into reorganization, liquidation or receivership. In all cases, EMX’s rights are cumulative, are not exclusive and in addition to all other rights and remedies it may have at law or in equity. No termination shall affect any accrued rights or obligations of either party as of the effective date of such termination, including EMX’s right to payment of the price of Products that are shipped and any damages EMX might suffer. The provisions of this Agreement which, by their nature, would continue beyond the termination or expiration of this Agreement will survive the termination or expiration of this Agreement.
18. Governing Law and Disputes. This Agreement will be governed by and construed in accordance with the laws of the State of Ohio, United States of America, excluding its conflicts of law provisions and expressly excluding the United Nations Convention of the International Sale of Goods. All controversies and claims arising out of or relating to this Agreement, or the breach thereof, will be settled by arbitration in Cleveland, Ohio administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitration panel will be made up of three (3) arbitrators, all of whom have experience with commercial contracts and manufacturing. Within fifteen (15) days of the delivery of the notice of arbitration, each party shall choose one arbitrator, and the two arbitrators chosen by the parties will choose a third arbitrator. The award of the arbitrator will be issued within thirty (30) days of the completion of the arbitration hearing, shall be in writing, and shall state the reasoning on which the award is based. Judgment upon the award rendered in the arbitration may be entered by either party in any court of competent jurisdiction.