E&R TERMS AND CONDITIONS OF SALE

 

1. Wholesale Only

E&R Industrial Sales, Inc. ("E&R") sells its complete offering wholesale to business customers, while also serving individuals.

 

2. Prices

Listed prices quoted are wholesale, do not include freight, handling fees, taxes, and/or duties, and are subject to correction or change without notice. Market sensitive commodity products will be priced according to current market conditions. Customer should contact E&R at (866) 795-2424for current pricing. Export orders may be subject to other special pricing. E&R reserves the right to accept or reject any order.

 

3. Sales Tax

Customer is responsible for payment of all applicable state and local taxes, or for providing a valid sales tax exemption certificate. When placing an order, customer shall indicate which products are tax exempt.

 

4. Payment and Credit Terms

E&R accepts checks, money orders, Visa, MasterCard, and American Express. For customers with established E&R credit, payment terms are net thirty (30) days from the date of shipment or pick-up of products. All credit extended by E&R to customer, and the limits of such credit, is at E&R’s sole discretion, and may be reduced or revoked by E&R at any time, for any reason. As a condition for the continued extension of credit, customer agrees to provide E&R with current credit information and the latest annual financial statement within five (5) business days following request by E&R. E&R reserves the right to charge a convenience fee for late payments. E&R further reserves the right to charge customer a late payment fee at the rate of one and one-half percent (1-1/2%) of the amount due for each month or portion thereof that the amount due remains unpaid, or such amount as may be permitted under applicable law. Anticipation and cash discounts are not allowed. Export orders are subject to special export payment terms and conditions identified in Section III. All payments must be made in U.S. dollars. E&R has the right of set-off and deduction for any sums owed by customer to E&R.

If customer fails to make payment within thirty (30) days of shipment or pick-up, or fails to comply with E&R’s credit terms, or fails to supply adequate assurance of full performance to E&R within a reasonable time after requested by E&R (such time as specified in E&R's request), E&R may defer shipments until such payment or compliance is made, require cash in advance for any further shipments, demand immediate payment of all amounts then owed, elect to pursue collection action (including without limitation, attorneys’ fees and any and all other associated costs of collection), and/or may, at its option, cancel all or any part of an unshipped order. Additionally, customer, and each of its subsidiaries and affiliates, agrees to provide to E&R proper authorization necessary for E&R to request any financial information from third parties.

Customer agrees to assume responsibility for, and customer hereby unconditionally guarantees payment of, as provided herein, all purchases made by customer, its subsidiaries and affiliates. Each of customer’s subsidiaries and affiliates purchasing from E&R are jointly and severally liable for purchases with customer, and customer is also acting as agent for such subsidiaries and affiliates.

 

5. Credit Balance

Customer agrees that any credit balance(s) issued by E&R will be applied to customer’s account
within one (1) year of its issuance. IF CUSTOMER HAS NOT REQUESTED THE CREDIT BALANCE WITHIN ONE (1) YEAR, ANY REMAINING CREDIT BALANCE WILL BE CANCELLED, AND E&R SHALL HAVE NO FURTHER LIABILITY.

 

B. FREIGHT POLICY

Prices stated are F.O.B. origin, freight prepaid to destination specified in the order. E&R charges a shipping and handling fee on each order which is applied at time of order and reflected on customer's invoice. Receipts for shipping and handling charges will not be furnished.  COD shipments are not permitted. Other terms and conditions may apply for other than standard ground delivery ("Other Freight Services"), including without limitation, expedited same day delivery, air freight, freight collect, export orders, hazardous materials, customer's carrier, shipments outside the contiguous U.S. or other special handling by the carrier. Any charges incurred for Other Freight Services must be paid by customer. Fuel surcharges may be applied. Title and risk of loss pass to customer upon tender of shipment to the carrier. If the product is damaged in transit, customer's only recourse is to file a claim with the carrier.

 

C. PRODUCT WARRANTY POLICY

 

1. SATISFACTION GUARANTEE TO ALL CUSTOMERS.
Customer should contact E&R if not satisfied with a product for any reason. E&R will promptly provide an exchange or refund if the product is returned within 30 days of delivery, in its original packaging and with proof of purchase from E&R.

2. WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY.
EXCEPT AS SET FORTH HEREIN AND WHERE APPLICABLE, NO WARRANTY OR AFFIRMATION OF FACT OR DESCRIPTION, EXPRESS OR IMPLIED, IS MADE OR AUTHORIZED BY E&R. E&R DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. E&R ALSO DISCLAIMS ANY LIABILITY FOR CLAIMS ARISING OUT OF PRODUCT MISUSE, IMPROPER PRODUCT SELECTION, IMPROPER INSTALLATION, PRODUCT MODIFICATION, MISREPAIR OR MISAPPLICATION. ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES IS EXPRESSLY DISCLAIMED TO THE EXTENT PERMISSIBLE. E&R'S LIABILITY IN ALL EVENTS IS LIMITED TO THE PURCHASE PRICE PAID FOR THE PRODUCT THAT GIVES RISE TO ANY LIABILITY.

3. Product Return.
Before returning any product, customer shall: (i) write or call the E&R branch from which the product was purchased or (ii) call E&R’s toll-free number at (866) 795-2424, and provide the date, the original invoice number, the stock number, and a description of the suspected defect. Proof of purchase and RGA # is required in all cases prior to returning any product.

4. Manufacturer’s Warranty.
For information on a specific manufacturer's warranty, please contact the local E&R branch or call toll-free at (866) 795-2424.

5. Product Compliance and Suitability.
Jurisdictions have varying laws, codes and regulations governing construction, installation, and/or use of products for a particular purpose. Certain products may not be available for sale in all areas. E&R does not guarantee compliance or suitability of the products it sells with any laws, codes or regulations, nor does E&R accept responsibility for construction, installation and/or use of a product. It is customer's responsibility to review the product application and all applicable laws, codes and regulations for each relevant jurisdiction to be sure that the construction, installation, and/or use involving the products are compliant.

6. Cross-Reference Information.
Product cross-reference comparisons do not imply that products are available or perfectly comparable. CROSS-REFERENCED PRODUCTS ARE NOT REPRESENTED OR WARRANTED AS FUNCTIONAL OR PERFORMANCE EQUIVALENTS. Customer shall review all cross-referenced product specifications prior to purchase and use to determine suitability of the product for customer's intended use.

D. PRODUCT INFORMATION

 

1. Catalog/Website Information.
Product depictions in the catalogs and websites are for illustrative purposes only. Possession of, or access to, any E&R catalog, literature or websites does not constitute the right to purchase products. E&R reserves the right to revise publishing errors in its catalogs or any of its websites. Despite our efforts, occasional pricing errors may occur in the E&R catalogs and websites. E&R reserves the right to cancel any and all orders resulting from such pricing errors, even if customer has received an order confirmation from E&R.

2. Product Substitution.
Products and/or country of origin may be substituted and may not be identical to descriptions and/or images published in the catalog or on the website.

3. Safety Data Sheets.
Safety Data Sheets (“SDS”) for OSHA defined hazardous substances are prepared and supplied by the manufacturers. E&R MAKES NO WARRANTIES AND EXPRESSLY DISCLAIMS ALL LIABILITY TO ANY CUSTOMER OR USER WITH RESPECT TO THE ACCURACY OF THE INFORMATION OR THE SUITABILITY OF THE RECOMMENDATIONS IN ANY SDS. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY RELIANCE ON OR USE OF ANY INFORMATION, AND FOR USE OR APPLICATION OF ANY PRODUCT.

4. SDS and Proposition 65 Regulated Product Requests.
Information on SDS and Proposition 65 regulated products are available by calling E&R's SDS Request Line at 1-877-286-9860. A complete list of Proposition 65 regulated chemicals is available by logging on to www.oehha.ca.gov.

5. Maryland and Vermont Customers.
Regulations in MD and VT prohibit the introduction into commerce of any solder, flux, pipe, pipe or plumbing fitting, or fixture intended to convey or dispense water for human consumption that is not "lead free". The maximum allowable lead content is 0.25 percent lead in wetted surfaces of pipes, pipe fittings, and plumbing fittings and fixtures, as determined by a weighted average. The maximum allowable lead content is 0.2 percent lead in solder and flux.

6. Important Notice to Federal Customers Re: Country of Origin.
Federal customers are advised that the open market purchases are not GSA schedule purchases. By purchasing any product on the open market, customer represents that it has authority to make such purchase and has complied with all applicable procurement regulations.

7. ARRA Orders.
It is customer's responsibility to advise E&R whether this order is funded in any part by funds from or related to the American Reinvestment and Recovery Act (“ARRA”) (Pub. L. No. 111-5) (i.e., Stimulus Funds). Upon request, E&R will provide country of origin information so that customer may determine compliance with any applicable requirements under ARRA Section 1605 or any other applicable regulations.

8. Refrigerant Customers.
In accordance with the Clean Air Act of 1990, as amended, sale of Class 1 (“CFC”) and Class 2 (“HCFC”) refrigerant will be restricted to resale purchases and/or to certified professional service technicians. To purchase regulated refrigerant products, all customers must present a certification card or sign a statement of resale to complete the purchase.

 

E. GENERAL TERMS

 

1. Electronic Data Interchange.
If E&R and customer mutually agree to use an Electronic Data Interchange (“EDI”) system to facilitate purchase and sale transactions, customer agrees that it will not contest: (i) any contract of sale resulting from an EDI transaction under the provisions of any law relating to whether agreements must be in writing or signed by the party to be bound thereby; or (ii) the admissibility of copies of EDI records under the business records exception to the hearsay rule, the best evidence rule or any other similar rule, on the basis that such records were not originated or maintained in documentary form. E&R and customer will negotiate and agree on technical standards and methods to use in making EDI purchases, and will use reasonable security procedures to protect EDI records from improper access. In the event of a conflict, the business records maintained by E&R regarding EDI purchases made by customer shall be deemed to be conclusive.

2. Third Party Payment Provider.
If customer elects to use a third party payment system provider (“Third Party Provider”) and E&R is charged fees by the Third Party Provider, E&R reserves the right to seek reimbursement from customer for any and all costs paid to the Third Party Provider for the transfer of funds, retrieval of payment detail, or any other purpose from the Third Party Provider.

3. Intellectual Property.
Customer shall have no right, title, or interest in the trade names, trademarks, trade dress, copyrights, patents, domain names, product names, catalogs or any other intellectual property rights reserved by E&R, or any trademarks or service marks owned by suppliers to E&R. All materials contained on the www.erindustrial.com website are subject to the ownership rights of E&R and its suppliers. Customer shall have no right to copy or use any of the intellectual property of E&R or its suppliers without E&R's permission.

4. Independent Contractors.
E&R and customer are independent contractors and not principal and agent. Nothing contained in these terms and conditions shall be construed to create a partnership, dealership, reseller, agency, employment or joint venture relationship. Customer does not have the right to bind or otherwise obligate E&R in any manner, nor may customer represent to anyone that it has the right to do so.

5. Code of Conduct.
E&R's Business Conduct Guidelines are available by logging on to www.erindustrial.com, and clicking on the Corporate Governance link. Customer agrees to refrain from taking any action that may cause an E&R employee to violate the Business Conduct Guidelines. Customer should report any alleged violations by calling the E&R Toll-Free Hotline at (866)795-2424.

Sourced Product.
E&R may procure product not available through the E&R catalog for a customer from other sources (“Sourced Product(s)”). Sourced Product is priced according to current market conditions on a per order basis, and is shipped F.O.B. origin with freight and handling fee paid by E&R and charged to customer. Sourced Product may not be returned without a return goods authorization issued by E&R. E&R, at its sole discretion, may withhold the issuance of such authorization. A restocking fee may apply for any returned Sourced Product. E&R'S LIMITED WARRANTY TERMS INCLUDED IN THESE TERMS AND CONDITIONS DO NOT APPLY TO SOURCED PRODUCTS. E&R DISCLAIMS ALL WARRANTIES, FOR SOURCED PRODUCTS IN ACCORDANCE WITH SECTION I.C.2 ABOVE. THE PRODUCT WARRANTY PROVIDED BY THE MANUFACTURER AND/OR SUPPLIER WILL BE CUSTOMER'S SOLE REMEDY.

7. Custom Product.
E&R may offer products manufactured or assembled to customers specifications (“Custom Product(s)”). E&R is not responsible for verifying or confirming the accuracy of specifications provided by customer to E&R for Custom Products. E&R'S LIMITED WARRANTY TERMS INCLUDED IN THESE TERMS AND CONDITIONS DO NOT APPLY TO CUSTOM PRODUCTS. THE PRODUCT WARRANTY PROVIDED BY THE MANUFACTURER AND/OR SUPPLIER WILL BE CUSTOMER'S SOLE REMEDY.  E&R DISCLAIMS ALL WARRANTIES FOR CUSTOM PRODUCT IN ACCORDANCE WITH SECTION I.C.2 ABOVE. All Custom Products are sold on a “FINAL SALE” basis only, and no cancellations, returns, refunds or credits are allowed.

8. Cancellation.
All product order cancellations, if not prohibited above, must be approved by E&R, and may be denied or subject to restocking fees and other charges.

9. Product Return.
Product returns, if not prohibited above, must be made within 30 days from date of purchase, unless otherwise indicated. Before returning any product, customer shall: (i) write or call the E&R branch from which the product was purchased or (ii) call E&R’s toll-free number at (866) 795-2424, and provide the date, the original invoice number, the stock number, and a description of the reason for return. Proof of purchase and RGA # is required in all cases prior to returning materials.

Returned product must be in original packaging, unused, undamaged, and in saleable condition. Proof of purchase is required in all cases. Product returns may be denied or made subject to restocking fees and other charges by E&R.

10. Materials of Trade.
Customer represents that if it is purchasing products as its “materials of trade,” as defined in the Hazardous Materials Regulations in Title 49 of the Code of U.S. Federal Regulations, the products shall be used in direct support of its business, such business does not concern transportation, and such products shall not be resold or transported in a vehicle other than one owned by itself.

11. Force Majeure.
E&R shall not be liable for any delay in, or impairment of, performance resulting in whole or in part from any force majeure event, including but not limited to acts of God, labor disruptions, acts of war, acts of terrorism (whether actual or threatened), governmental decrees or controls, insurrections, epidemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, inability to procure or ship product or obtain permits and licenses, inability to procure supplies or raw materials, severe weather conditions, catastrophic events, or any other circumstance or cause beyond the reasonable control of E&R in the conduct of its business.

12. Assignment.
Customer shall not assign any order, or any interest therein, without the prior written consent of E&R. Any actual or attempted assignment without E&R's prior written consent shall entitle E&R to cancel such order upon notice to customer.

13. No Third Party Benefit.
The provisions stated herein are for the sole benefit of the parties hereto, and confer no rights, benefits or claims upon any person or entity not a party hereto.

14. Waiver, Choice of Law and Venue.
The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent non-performance of any such term or condition by the other party. All transactions shall be governed by the laws of the State of Michigan, excluding its conflict of law rules, and venue shall either be in the state courts in Macomb County, Michigan or the federal courts for the Eastern District of Michigan.

15. Severability.
If any portion of these terms and conditions is found to be invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable term shall be severed from these terms and conditions, and the remaining terms and conditions shall be valid and fully enforceable as written.

16. Modification of Terms.
E&R’s acceptance of any order is subject to customer’s assent to all of the terms and conditions set forth herein. Customer's assent to these terms and conditions shall be presumed from customer's receipt of E&R’s acknowledgment, or from customer’s acceptance of all or any part of the products ordered. No additions or modifications of E&R’s terms and conditions by customer shall be binding upon E&R, unless agreed to in writing by an authorized representative of E&R. If a purchase order or other correspondence submitted by customer contains terms or conditions contrary or in addition to the terms and conditions contained herein or in E&R’s acknowledgment, E&R’s fulfillment of any such purchase order shall not be construed as assent to any of the terms and conditions proposed by customer, and will not constitute a waiver by E&R of any of the terms and conditions contained herein or in E&R’s acknowledgment.

17. Complete Agreement.
The terms and conditions in: (i) E&R’s forms; (ii) acknowledgments; (iii) quotations; (iv) invoices; (v) websites; (vi) catalogs; and (vii) extension of credit are incorporated herein by reference, and constitute the entire and exclusive agreement between customer and E&R.