Terms & Conditions of Sale
Terms & Conditions of Sale
Acceptance of this order by NGS Capital Management LLC, dba OMCO SUMO (“OMCO”) is expressly conditioned upon Buyer’s assent to these terms and conditions such that the rights of the parties shall be governed exclusively by these terms and conditions. Any attempt by Buyer to vary these terms and conditions in any acceptance, acknowledgment, confirmation or otherwise containing additional, different or inconsistent terms and conditions (collectively “Different Terms”) is hereby expressly objected to and rejected by OMCO. OMCO’s dealings with Buyer or silence in response to Different Terms proposed by Buyer shall not be deemed acceptance of the Different Terms. No orders shall be binding upon OMCO unless accepted in writing by OMCO. No person, agent or party may enter or modify this order unless acknowledged in writing by an officer of OMCO.
For a period of ninety (90) days after shipment F.O.B. OMCO’s plant (the “Warranty Period”), OMCO warrants that the goods manufactured by OMCO pursuant to this order will be free from defects in workmanship and material. OTHER THAN AS ABOVE, OMCO SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES; INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE OR USE. This warranty does not extend to repairs or alterations undertaken without OMCO’s written consent or for goods that are subject to misuse, abuse, negligence or accident or if the goods, are not properly stored, maintained, installed or operated per OMCO’s operating instructions. Furthermore, this warranty does not apply to the conditions described in Section 16 below.
All warranty claims must be made in writing to OMCO within the Warranty Period. OMCO’s obligation on valid claims and Buyer’s sole remedy therefore is exclusively limited to, at OMCO’s option, any one of the following: (i) replacing F.O.B. OMCO’s plant any part proved to be defective, (ii) remedying or repairing such defect or (iii) refunding the purchase price. In the case of parts purchased by OMCO from a third-party supplier, Buyer’s sole remedy against OMCO shall not exceed the settlement that OMCO is able to obtain from its supplier. At OMCO’s direction, Buyer shall return the alleged defective part transportation charges prepaid by Buyer before OMCO recognizes any claim.
LIMITATION OF LIABILITY
Buyer acknowledges that the price of the goods is predicated on the enforceability of the following limitation of liability, that the price would be substantially higher if OMCO could not limit its liability as herein provided, and that Buyer accepts this limitation of liability in exchange for the lower price. ACCORDINGLY, OMCO SHALL NOT BE LIABLE, WHETHER BASED IN CONTRACT, WARRANTY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ALTERNATIVE TORT REMEDIES OR ANY OTHER THEORY OF LAW OR EQUITY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DAMAGE TO EQUIPMENT, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF BUYER’S PROPERTY, PLANT EQUIPMENT OR SYSTEM, DOWNTIME COSTS OR CLAIMS OF BUYER’S CUSTOMERS. OMCO’S TOTAL AGGREGATE LIABILITY TO BUYER HEREUNDER SHALL NOT EXCEED THE PURCHASE PRICE PAID BY BUYER FOR THE SPECIFIC GOODS OR SERVICES FROM WHICH ANY CLAIM OR DAMAGES MAY ARISE.
Buyer shall defend, indemnify and hold harmless OMCO, its officers, employees, attorneys and agents from and against all liability, loss, damage, cost and expense (including reasonable attorneys’ fees and disbursements) caused by or arising from by reason of (I) any allegation, claim, action, suit or threat thereof, for the death or injury of any person(s) or damage or destruction of property, arising out of the negligent or willful acts of Buyer or Buyer’s agents or representatives and (II) Buyer’s breach of or failure to perform its obligations in connection with this order.
Prices and terms of payment are for the limited period stated. Payment shall be in U.S. dollars without set off, deduction or withholding.
OVERRUNS AND UNDERRUNS
Due to manufacturing requirements, OMCO reserves the right to ship 10% over or under the quantity ordered. Orders will be considered complete and customer will be billed for actual amounts shipped.
A late charge of 1.5% per month may be charged on all outstanding balances past specified terms.
Buyer covenants that the goods are being manufactured per the specifications furnished by Buyer.
RISK OF LOSS
Risk of loss and damage to goods shall pass to Buyer upon delivery of the goods F.O.B. OMCO’s plant. Buyer shall pay all transportation and loading charges.
If OMCO has commenced fulfillment of this order, Buyer may cancel this order only upon written request to OMCO and only upon payment to OMCO of a cancellation fee equal to the lesser of (i) one hundred twenty-five per cent (125%) of the cost of materials purchased and labor rendered by OMCO to fulfill the order or (ii) the purchase price.
OMCO shall not be liable for any loss or damage arising from OMCO’s delay in performing or failure to perform as a result of any cause beyond the reasonable control of OMCO.
PATENTS AND COPYRIGHTS
Subject to the limitations of Section 4, if OMCO determines that the goods are infringing or likely to be deemed infringing on any third party U.S. patent or copyright, OMCO may at its option (i) procure for Buyer the right to continue using the infringing goods, (ii) replace the infringing goods with non-infringing goods, (iii) modify the infringing goods or (iv) remove the infringing goods and refund the applicable portion of the purchase price paid by Buyer. The foregoing states OMCO’s entire liability for infringement. Buyer assumes all liability for infringement if goods were modified by Buyer or made to Buyer’s specifications.
In addition to the purchase price, Buyer shall pay all taxes (including without limitation, sales, excise and use taxes) or similar charges associated with its purchase of the goods. Any such taxes/charges paid by OMCO shall be for Buyer’s account.
This agreement is not assignable by Buyer without the prior written consent of OMCO, which consent may be withheld in OMCO’s sole discretion. If any provision(s) of this agreement shall be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby.
APPLICABLE LAW; WAIVER
This order shall be governed by the laws of Wisconsin, U.S.A., without regard to its conflicts of law principles. At OMCO’s option, disputes concerning the rights or obligations of the parties shall be resolved by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, with proceedings to be held in Milwaukee, Wisconsin. Failure by OMCO to insist upon strict performance of any terms or conditions stated herein shall not be considered a continuing waiver of such terms or conditions or any of OMCO’s rights hereunder.
This document constitutes the final expression of the parties and is the complete and exclusive statement of its terms. Catalogues, photographs, drawings and other illustrations shall not form a part of this agreement unless expressly incorporated herein.
UNGROUND BEARING CAPACITY RATINGS
Bearing capacity ratings are approximations and dependent on variables unique to every application. Field-testing is the most accurate means of determining bearing capacity under a specific set of conditions including but not limited to: speed, load, shock, thrust, exposure to different contaminants, atmosphere, lubrication, and temperature. Standard equations used to determine capacity ratings for precision bearings do not apply equally to unground bearings due to differences including but not limited to: material, tolerance, heat treatment, surface finish, and ball complement. As of April 1st, 1999, the Anti-Friction Bearing Manufacturers Association (ABMA) has been unable to define standards acceptable for use in determining such information. As a result of these circumstances and based on experience, OMCO may provide approximations regarding bearing load and speed capacities in ideal conditions, however these approximations shall not constitute representations or warranties of any kind whatsoever including, without limitation, with respect to how long a bearing will survive in a particular application.
In response to violence and human rights violations in the mining of certain minerals from the “Conflict Region”, which is situated in the eastern portion of the Democratic Republic of the Congo (DRC) and surrounding countries, the U.S. Securities and Exchange Commission (SEC) has adopted rules to implement reporting and disclosure requirements related to “conflict minerals,” as directed by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. The rules require manufacturers who file certain reports with the SEC to disclose whether the products they manufacture or contract to manufacture contain “conflict minerals” that are “necessary to the functionality or production” of those products. The definition of “conflict minerals” refers to gold, as well as tin, tantalum, and tungsten, the derivatives of cassiterite, columbite-tantalite, and wolframite, regardless of where they are sourced, processed or sold. The U.S. Secretary of State may designate other minerals in the future. We support the humanitarian goal of ending violent conflict in the DRC and surrounding countries. Our products do not utilize conflict minerals, and we are committed to the responsible sourcing of “conflict minerals” throughout our supply chain and to continuing to comply with the underlying SEC rules and regulations surrounding “conflict minerals”.
T&C LAST UPDATED
Friday, July 9, 2021