STANDARD TERMS & CONDITIONS 

ELECTROMECHANEX, LLC_RSG

STANDARD TERMS & CONDITIONS OF SALE

REPAIR, PARTS, MODIFICATION, MAINTENANCE, INSPECTION, AND TEST

1.TERMS OF AGREEMENT

These terms and conditions are the terms and conditions under which ELECTROMECHANEX, LLC ("EMX RSG") will provide services ("services") or the equipment, parts or other goods ("goods") to BUYER, and all terms and conditions contained herein shall be deemed part of the contract entered into for the services and goods. Any acceptance of EMX RSG’s offer to provide services or goods must be strictly in accordance with the terms and conditions contained herein, and such acceptance may not contain, or seek to impose, any additional or contrary terms. Any such additional or contrary terms shall automatically be deemed rejected by EMX RSG. To the extent that any response to BUYER by EMX RSG is construed to be an acceptance of an offer from BUYER, EMX RSG’s acceptance is expressly conditioned upon BUYER’s assent to the terms and conditions set forth below in this Agreement

2.COMPLETE AGREEMENT, NO MODIFICATION

These standard Terms and Conditions, together with any additional writings signed by EMX RSG shall represent the final, complete and exclusive statement of the agreement between the parties. All prior understandings, representations and warranties, written or oral, express or implied, are merged into said writings. This agreement may not be modified, supplemented, explained or waived by parol evidence, by BUYER’s purchase order, by any course of dealing, by EMX RSG's performance or delivery, or by any other means except in writing, signed by an authorized representative of EMX RSG. Advertising, listings, catalogs, circulars and pamphlets of EMX RSG are issued for general information purposes only and shall not be deemed to modify the provisions hereof.

3.SUBMISSION OF REPAIRS/SERVICE

Any Item submitted to EMX RSG must accompany a fully completed and signed REPAIR SERVICE SUBMISSION FORM which provides clear written instructions pertaining to the specific problem related to each Item, as well as it model and serial number. If BUYER requires an estimate before work is to commence, then BUYER is required to initial the REPAIR SERVICE SUBMISSION FORM where indicated. Otherwise, the Item will be deemed “approved for repair and/or service” and automatically forwarded through the repair/service process. Any Item waiting for an estimate approval by EMX RSG exceeding ten (10) business days shall be inventoried as “Do Not Repair” by Service Provided and BUYER shall pay an inspection charge fee. EMX RSG reserves the right to refuse repair or service any Item for any reason.

4.PRICE POLICY

In consideration for the services to be performed by EMX RSG under this Agreement, the BUYER will pay compensation to EMX RSG based on the price quoted. Further, BUYER agrees and acknowledges, based on the nature of the Services, Prices quoted by EMX RSG shall be subject to Adjustments in the event of substantial rises in the price of materials due to any cause not within EMX RSG’s control or not avoidable by reasonable diligence. BUYER acknowledges and agrees Invoice Adjustments may generally include, but not be limited to additional work necessary as a result of failed electrical testing and or mechanical inspections and other component defects. Prices are FOB shipping point, regardless of whether transportation or freight charges are expressly included in any price submitted to BUYER, unless otherwise designated in writing, signed by EMX RSG. Prices and transportation charges are subject to adjustment for any increase or decrease in exchange rates.

5.SALES TAXES

Any sales, use or other taxes and duties imposed on this sale are not included in EMX RSG’s price. Such taxes will be billed separately to BUYER. EMX RSG will accept a valid exemption certificate from BUYER; however, if the governmental taxing authority does not recognize the exemption certificate furnished, BUYER shall promptly reimburse EMX RSG for the taxes paid.

6.PAYMENT

Full payment shall be made upon completion of the services. The Item will be made available to BUYER only once full payment is received by EMX RSG. BUYER will be charged an inspection charge for assessing the cost of repairs or service even if BUYER does not elect to have EMX RSG perform the repair or service.

7.TERMS

Terms are cash net 30 days. Amounts past due are subject to a service charge of 1 and 1/2 percent per month (or fraction thereof) or maximum contract rate permitted by law. If the EMX RSG deems that by reason of the financial condition of the BUYER or otherwise, the continuance of any services or shipment on the terms specified herein is not justified, the EMX RSG may require full or partial payment in advance. The EMX RSG at its option may retain possession of equipment repaired, modified, inspected, tested, maintained or serviced under this agreement until its charges for services are paid. Regardless of any credit or payment terms extended to BUYER by EMX RSG, EMX RSG may require tender of payment contemporaneous with, and/or as a condition precedent to, delivery of the goods or services being sold if EMX RSG learns of circumstances that cause EMX RSG to question BUYER’s ability to satisfy its obligations under the agreement. Any claims for shortages or defects or deductions for erroneous charges must be made within 30 days after receipt of goods or shall be deemed waived.

8.DELIVERY

Although EMX RSG will make all reasonable commercial efforts to observe its dates indicated for delivery or other performance, EMX RSG shall not be liable for delays in delivery or in performance or failure to manufacture or deliver due to any cause not within EMX RSG’s control or not avoidable by reasonable diligence including, without limitation, technical difficulties, fires; floods; strikes; labor disputes; accidents; embargoes; delays in transportation; vehicle, fuel, material, or labor shortages; failure to obtain delivery from manufacturers or subcontractors; lockout, riot, war

(declared or undeclared), terrorism, act of God, failure, or breakdown of components necessary to order completion, subcontractor, supplier or BUYER caused delays, inability to obtain or substantial rises in the price of labor, materials or manufacturing facilities, curtailment of or failure to obtain sufficient electrical or other energy supplies, or compliance with any law, regulation or order, whether valid or invalid, of any cognizant governmental body or any instrumentality beyond its control. Provided such delay is neither material or indefinite, EMX RSG’s performance shall be deemed suspended during and extended for such time as it is so delayed, and thereafter BUYER shall accept performance hereunder. Delays so caused shall not release BUYER from its obligation to accept and pay for goods or services. No penalty of any kind shall be effective against EMX RSG for delays in performance and BUYER shall bare responsibility for accrued billable waiting hours during such delays in performance. As used herein, “performance” shall include, without limitation, fabrication, shipment, delivery assembly, installation, testing, and warranty repair or replacement, as applicable.

9.SHIPPING/HANDLING CHARGES

Shipments are F.O.B. point of shipment. Shipping/handling will be prepaid and billed as a separate item on the equipment invoice on the basis of EMX RSG’s current shipping/handling policies.

10.CHANGES

BUYER may with the express written consent of the EMX RSG make changes in the specifications for equipment, services or work covered by the contract in such event the contract price and delivery dates shall be equitably adjusted. The EMX RSG shall be entitled to payment for reasonable profit plus costs and expenses incurred by it for services, work and materials rendered unnecessary as a result of such changes and for work and materials required to effect said changes.

11.INCOMPLETE WORK

EMX RSG acknowledges that sometimes services cannot be completed due to unavailable parts or components, strikes, Acts of God, or other reasons outside of the control of EMX RSG. In these situations, EMX RSG and EMX RSG will work together to determine a reasonable cost for the work performed by EMX RSG. In no even shall the cost of such service be less than an estimate charge fee. 

12.RETURN OF PARTS

Any and all parts returned to EMX RSG shall be at the sole discretion of EMX RSG. Any return of parts requested by EMX RSG must be requested on the REPAIR SERVICE ACCEPTANCE AGREEMENT prior to service or the parts may be discharged.

13.PRODUCT MODIFICATIONS

EMX RSG shall not be responsible for voiding any factory warranties after any service or alterations are performed, nor shall EMX RSG be responsible for any damage or safety related issues arising from performing the services. EMX RSG acknowledges and agrees that any Item submitted for modifications may not be restored back to its original state or condition. Any and all modifications are at “BUYER’s own risk”.

14.CANCELLATION

Undelivered parts of any order may be canceled by the BUYER only with the written approval of the EMX RSG. If the BUYER makes an assignment for the benefit of creditors, if a voluntary or involuntary petition or action in bankruptcy or for reorganization or under any other insolvency law shall be filed by or against the buyer, if the BUYER shall admit its inability to pay its debts, if a trustee, receiver or liquidator is appointed for any part of the assets of the BUYER, or if the BUYER fails to make payments to the EMX RSG in accordance with the terms hereof, the EMX RSG may at its option cancel all undelivered parts or any order by written notice to the BUYER. In the event of any cancellation of this order by either party, the BUYER shall pay the EMX RSG the reasonable cost and expense, including engineering expense and all commitments to its suppliers and subcontractors, incurred by the EMX RSG prior to receipt of notice of such cancellation, plus the EMX RSG’s usual rate of profit for similar work.

15.ABANDONED EQUIPMENT

Any equipment not approved for repair and not requested to be returned by the BUYER will be considered scrap metal after 90 days from the initial repair offer date. Any and all scrap metal shall be and remain the property of EMX RSG. Inspection and Freight Charges will apply on equipment returned less repair. Any repaired equipment not paid for in full and picked up from EMX RSG within thirty (30) days after notification of completion will be considered abandoned and become the property of EMX RSG. EMX RSG will store the Item for up to fourteen (14) days after the completion date with no charge, after which EMX RSG will apply a minimum $35 storage fee. Thirty (30) days after the completion date, EMX RSG reserves the right to sell the Item to recover any losses on the outstanding balance on services, repairs and products rendered on abandoned equipment, including, without limitation, storage charges, processing, and the cost of sale.

16.REGULATORY LAWS AND STANDARDS

EMX RSG makes no representation or warranty that its product, services or work will conform to any federal, state or local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon for compliance in writing as part of the quotation or contract between BUYER and EMX RSG. EMX RSG prices do not include the cost of any related inspections or permits or inspection fees.

17.EXPORT CONTROL

Products and associated materials supplied or licensed under this agreement may be subject to various export laws and regulations. It is the responsibility of the exporter to comply with all such laws and regulations.

18.LATE PAYMENT

Failure of BUYER to pay any fees after the applicable due date shall be deemed a material breach of this Agreement, justifying suspension of the performance of the services provided by EMX RSG and it shall be sufficient cause for immediate termination of this Agreement by EMX RSG. Any such suspension will in no way relieve BUYER from payment of compensation, and, in the event of collection, BUYER shall be liable for any costs associated with such collection, including, but not limited to, legal costs, attorneys' fees, courts costs, and collection agency fees.

19.EXCLUSIVE WARRANTY
THESE WARRANTIES ARE IN LIEU OF AND EXCLUDE ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS WARRANTY IS LIMITED TO THE ORIGINAL INVOICE AMOUNT. THE EMX RSG DOES NOT WARRANT THE DESIGN OF ANY EQUIPMENT, MATERIAL, COMPONENTS OR SERVICES OF OTHERS. LIMITED WARRANTY: EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO WARRANTIES, EXPRESS OR IMPLED INCLUDING, BUT NOT LIMITED TO, ANY IMPLED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING THE ABOVE, EMX RSG SHALL PROVIDE A LIMITED WARRANTY RELATED TO THE REPAIR SERVICE SPECIFIED IN THE REPAIR SERVICE ACCEPTANCE AGREEMENT. THIS LIMITED WARRANTY APPLIES ONLY TO THE SERVICE: THERE IS NO WARRANTY EXPRESS OR IMPLED FOR ANY PART(S)/PRODUCT(S) WHICH MAY BE USED IN THE SERVICE. SUCH LIMITED WARRANTY SHALL BEGIN ON THE DAY THE ITEM IS RETURNED TO EMX RSG AND AUTOMATICALLY EXPIRE THIRTY-FIVE (35) DAYS THEREAFTER EMX RSG ACKNOWLEDGES THAT THIS LIMITED WARRANTY SHALL APPLY ONLY TO THE ORIGINAL SERVICES REQUESTED BY EMX RSG AND NOT TO ANY OTHER PROBLEMS WITH THE ITEM. THE SOLE LIABILITY OF EMX RSG UNDER THIS SECTION SHALL BE TO CORRECT ANY ERRORS CAUSED SOLELY AND DIRECTLY BY EMX RSG, OR, IN EMX RSG’S SOLE DISCRETION, PROVIDE A REFUND TO EMX RSG. THIS LIMITED WARRANTY IS FOR THE BENEFIT OF BUYER ONLY AND IS NONTRANSFERABLE. Except as otherwise set forth herein, any reference by EMX RSG to BUYER’s specifications and similar requirements are only to describe the goods and services covered hereby, and no warranties or other terms therein shall have any force or effect. THE WARRANTIES SET FORTH HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. BUYER AGREES THAT THERE IS NO EXPRESS OR IMPLIED WARRANTY BY EMX RSG AS TO THE FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, CAPACITY, OR EFFICIENCY OF ANY GOODS SOLD OR SERVICES PROVIDED, AND THAT THERE ARE NO ORAL OR IMPLIED ADDITIONAL WARRANTIES MADE IN CONNECTION WITH ANY SALE OF GOODS OR SERVICES. The foregoing warranties will not apply to defects, occurring within the warranty period, resulting from misuse by customer or by reason of improper installation, application, circuit protection, assembly or repair of the apparatus by others subsequent to the sale or service by the EMX RSG. If the apparatus does not operate in accordance with the foregoing warranties, the EMX RSG will refund the price of the goods or service or will provide for the reworking or replacing of the apparatus or parts, at the member’s option, to cause it to so operate for no additional charge to the customer, at the EMX RSG’s place of business, and during the EMX RSG’s regular working hours. Transportation of the apparatus, if required, will be paid for by the customer. The EMX RSG’s liability for any breach of the foregoing warranty shall be limited to such refund, reworking or replacement and, in the case of claims arising out of the EMX RSG’s inspection of apparatus, to the charge made for such inspection. EMX RSG shall not be liable to customer, or to any other person, for any indirect, consequential, or other kinds of damages arising out of this transaction. Any implied warranty of merchantability or warranty that the goods can be used for any particular purpose, or any other expressed or implied warranty ty, except as herein provided, is hereby disclaimed. No representative of EMX RSG has any authority to modify these warranties in any manner. Any action for breach of any of the foregoing warranties must be brought within two years after the cause of action has accrued.

A. WARRANTY REPAIR SERVICES

1.REPAIRS AND SERVICE

All repair, inspection, test, service, modification or maintenance sold or serviced by the EMX RSG is warranted to be free from defects of material and workmanship and to conform to any applicable drawings, specifications, or written documents approved by EMX RSG, warrants materials used in the repair and service and workmanship for work carried out by EMX RSG for a period of ninety (90) days from date of completion, during which time the apparatus will operate satisfactorily, with competent supervision, under rated load, original nameplate data, usage and conditions.

2.ELECTRIC MOTOR RECONDITION

Upon completion, EMX RSG warrants that the Apparatus has been dismantled, inspected, parts cleaned, all mechanical tolerances brought back to manufacturer’s tolerances (if known) or EASA Recommended Practice, windings dried and varnish treated as required, dynamically balanced rotating components, assembled, to include the replacement of rolling element bearings with new, lubricated, tested and painted. EMX RSG warrants the materials and workmanship for a period of one year from date of completion and warrants its materials and workmanship for the Electrical recondition portion of the job for 90 Days from date of completion, during which time the apparatus will operate satisfactorily, with competent supervision, under rated load, original nameplate data, usage and conditions.

3.ELECTRIC MOTOR REMANUFACTURE

Upon completion, EMX RSG warrants that the Apparatus has been dismantled, inspected, parts cleaned, all mechanical tolerances brought back to manufacturer’s tolerances (if known) or EASA Recommended Practice, all windings replaced with new windings composed of new insulation and wire, dynamically balanced rotating components, assembled, to include the replacement of rolling element bearings with new, lubricated, tested and painted. EMX RSG warrants its materials and workmanship of the electrical rewind portion of the job for a period of two years from date of completion and warrants its materials and workmanship for the mechanical recondition portion of the job for one year from date of completion. The foregoing warranties will not apply to defects, occurring within the warranty period, resulting from misuse by customer or by reason of improper installation, application, circuit protection, assembly or repair of the apparatus by others subsequent to the sale or service by the Seller.                  4.REMANUFACTURED EQUIPMENT/COMPONENTS

All equipment components remanufactured by EMX RSG will be warranted for a period of one (1) year from date of shipment. Repair of electronic boards will be warranted for a period of six (6) months from date of shipment.

5.INSPECTION, TEST, MAINTENANCE, CALIBRATION, CONSULTATION

EMX RSG warrants that these services will be provided in accordance with accepted industry practice. If any service fails to meet the foregoing warranty, the EMX RSG shall duplicate the service to the same extent and on the same conditions as the original service rendered.

6.PARTS

If any part provided by EMX RSG shall prove defective in material and/or workmanship within one (1) year from the date of shipment, BUYER shall immediately thereupon notify the EMX RSG in writing of such defect. EMX RSG shall, at its option, modify, repair, supply a replacement part or refund the purchase price of said part. EMX RSG shall have the option to have the part returned to it, F.O.B. its factory, or to make such adjustment at the point of installation. EMX RSG shall invoice for all travel and labor involved. EMX RSG shall accept no responsibility if such part has been improperly operated or maintained or if BUYER has permitted any unauthorized modifications, adjustments and/or repairs to the part. Parts not manufactured by EMX RSG shall be covered by the warranty of the manufacturer or supplier thereof.

7.WARRANTY-REPAIR, MODIFICATION, REBUILD

If within the period specified above, EMX RSG receives from the BUYER written notice of any alleged defect or non-conformity and if the services provided are found not to be in conformity with this warranty (the BUYER having provided EMX RSG reasonable opportunity to perform any appropriate test thereon) EMX RSG will, at its option, correct such nonconformity or supply a replacement thereof. This warranty shall only apply to parts repaired or replaced by EMX RSG. No separate warranty shall apply to repaired apparatus as a whole or to parts not repaired or replaced by EMX RSG. EMX RSG shall have the right to require the BUYER to deliver any apparatus covered by this warranty to a designated service center and the BUYER shall pay both in-bound and out-bound transportation charges, EMX RSG accepting only the direct and actual cost of apparatus repair or replacement as provided above.

B. WARRANTY NEW SALES

1.NEW EQUIPMENT

New equipment is equipment purchased from an original equipment manufacturer (“OEM”) either directly or through an OEM’s authorized dealer/distributor network and for which an OEM warranty is in effect. As to such equipment, EMX RSG agrees only to transfer, to the extent transferable, the warranty of the OEM, and EMX RSG shall have no further liability or responsibility with respect to such equipment. A copy of the warranty given by each OEM has either been furnished to the BUYER, or is available to the BUYER upon written request to EMX RSG

2.NEW SURPLUS

   A-New-EMX RSG warrants that the apparatus has never been in service. Such warranty will extend for a period of 90 Days from date of shipment, during which time the apparatus will operate satisfactorily, with competent supervision, under rated load, original nameplate data, usage and conditions.

   B-E-OK. Electrically OK-Equipment warranted as E-OK is warranted to comply with the stamped nameplate ratings at not less than one Meg to ground (earth), as of the time of shipment. In addition, the provisions of paragraph C below are also applicable to equipment designated as E-OK. No other warranties shall apply to equipment warranted as E-OK.

   C-Mechanically OK-Equipment warranted as Mechanically OK is warranted to contain all parts necessary for the operation of the equipment, and that none of the parts are visibly broken. The condition or tolerance of the parts and components are not warranted. In addition, the provisions of paragraph C below are also applicable to equipment designated as Mechanically OK. No other warranties shall apply to equipment warranted as Mechanically OK.

3.AS IS-Equipment designated “As Is” carries no warranties whatsoever. BUYER assumes total responsibility for the condition and suitability of the equipment

C. PROVISIONS

Provision applicable to all EMX RSG warranties. No equipment, parts, or other goods shall be returned without the express prior written approval of EMX RSG. BUYER’s remedies for breach of warranty or for otherwise nonconforming goods or services are expressly limited to repair or replacement, at EMX RSG’s sole option. EMX RSG, its contractors and suppliers of any tier, shall not, under any circumstances, be liable in contract, in tort (including negligence or strict liability) or otherwise for interruption of business, downtime costs, loss of profits or revenue, loss of use of equipment, cost of capital, additional expenses incurred in using existing facilities, claims of customers of BUYER, or for any special, indirect, incidental or consequential damage whatsoever, including, but not limited to damages or delay caused by any defects, time spent by employees, agent, representatives, or independent contractors of BUYER as a result of any defects, any expenses incurred by BUYER as a result of any defects, "in and out" charges, other damages, losses or other expenses arising from installation, use, or any other causes, regardless of advice or recommendations that may have been rendered concerning the installation or use of its goods, nor shall EMX RSG be liable for penalties of any kind. The remedies of BUYER set forth herein are exclusive and the total cumulative liability of EMX RSG with respect to this contract, or anything done in connection therewith such as the performance or breach thereof, or from the manufacture, sale, delivery, resale or use of any goods or services covered by or furnished under the contract, whether in contract, in tort (including negligence or strict liability) or otherwise shall not exceed the price of the goods or services on which such liability is based. Unless specifically agreed in writing, EMX RSG shall in no event be liable for repairs or alterations performed by any entity other than EMX RSG. EMX RSG shall not be liable for costs of inspection to determine whether goods or services sold are conforming. EMX RSG shall not be

liable for damages or wear caused by abnormal conditions, vibration, improper operation including failure to properly prime pumps or operating pumps without sufficient flow, or caused by corrosion, abrasive or foreign objects, application of excessive voltage to motors, or any other misuse of the equipment. Any such use of the equipment will render all warranties void. In the event the equipment is altered or repaired by any entity other than EMX RSG without prior written approval of EMX RSG, all warranties shall be void. Any warranties given herein, and all limitations herein, are extended to the initial user of the equipment, and are not transferable to any subsequent user, provided that, if BUYER is not the initial user of the equipment, then no warranties shall be extended to the initial user unless the BUYER herein sets forth the limitations of warranties and remedies in the documents by which the BUYER resells the equipment.

In no event shall EMX RSG be responsible for providing, or for the expense of providing, working access to BUYER’s goods, for the removal and disassembly for service, re-assembly and re-installation, or for warranty work, or for alteration or removal of any structure or other equipment for such purposes, or for transportation costs or expenses in connection with warranty work hereunder. BUYER agrees to assume and pay for all such expenses. All warranty work hereunder shall be on single shift, straight time. If BUYER requests overtime work to complete warranty service, then BUYER agrees to pay for all such overtime costs. The warranty period provided above shall be shortened only for any components of BUYER’s goods, or for goods serviced, that have an industry recognized, inherently shorter life than the warranty period specified. A reasonable effort will be made to identify such components or goods in this Agreement, under special terms, or by written notice during service, or no later than by written notice on or with EMX RSG’s final invoice. 

19.MULTIPLE ITEMS

If EMX RSG has submitted multiple Items for repair, the terms and conditions of this EMX RSG Service Agreement shall apply to each Item submitted and the limited warranty in Section 18 shall initiate on the return of each item.

20.REPAIR PARTS FROM BUYER

EMX RSG shall not be responsible nor liable for any damage caused by repair part(s) submitted by EMX RSG.

21.AUTHORIZED WARRANTY SERVICE CENTER WORK

EMX RSG must verify warranty status and submit factory requested paperwork meeting all requirements prior to EMX RSG performing any warranty work. EMX RSG assumes all financial burden owned to EMX RSG in lieu of factory in the event labor reimbursement to EMX RSG is halted for any reason.

22.INDEMNITY

EMX RSG agrees to indemnify the BUYER and hold it harmless from and against any loss actually suffered directly from injury (including death) to any person or damage to any property caused by the fault of the EMX RSG in the performance of any work hereunder on the premises of BUYER.

23.PATENT INFRINGEMENT

EMX RSG shall defend any suit or proceeding brought against the BUYER so far as the same is based on a claim that any apparatus of the EMX RSG’s design furnished hereunder or any part thereof, constitutes an infringement of any United States patents, if notified promptly in writing and given authority, information and assistance (at the EMX RSG’s expense) for the defense of the same and if such alleged infringement is not the result of a design or other special requirement specified by the BUYER, or as the result of the application or the use to which such apparatus is put by the BUYER or others. The EMX RSG will pay all damages and costs awarded in such suit or proceeding against the BUYER. In case such apparatus or part is in such suit held to infringe any such patent and the use thereof is enjoined, the EMX RSG shall at its expense either, at its option, (a) obtain for the BUYER the right to continue using such apparatus or part, or, (b) replace the same with non-infringing apparatus, or (c) modify the same so that it becomes non-infringing, or, (d) remove said apparatus and refund the purchase price and the transportation and installation costs thereof. The foregoing states the entire liability of the EMX RSG to the BUYER for patent infringement.

24.TITLE

All scrap resulting from the work shall be the property of EMX RSG. The title and right of possession of equipment repaired, modified, inspected, tested or maintained under this contract shall remain with the BUYER, subject to any applicable lien rights of the EMX RSG and to its right of sale in the event of non-payment.

25.DISCLAIMER OF DAMAGES

IN NO EVENT SHALL EMX RSG BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PENAL DAMAGES, WHETHER SUCH DAMAGES ARISE OUT OF OR ARE A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. Such damages shall include but not be limited to loss of profits or revenues, loss of use of the equipment or associated equipment, cost of substitute equipment, facilities, down time costs, increased construction costs or claims of BUYER’s customers or contractors for such damages. BUYER agrees that in the event of a transfer, assignment, or lease of the equipment sold hereunder that BUYER shall secure for the EMX RSG the protection afforded to it in this paragraph.

26.NO RESPONSIBILITY FOR GRATUITOUS INFORMATION OR ASSISTANCE

If EMX RSG provides BUYER with assistance or advice which concerns any parts/products/service supplied hereunder or any system or equipment in which any such part/product/service may be installed and which is not required pursuant hereto, the furnishing of such assistance or advice shall not subject EMX RSG to any liability, whether based in contract, warranty, tort (including negligence) or otherwise.

27.LIMITATION OF LIABILITY

The EMX RSG shall not be liable for any loss, claim, expense or damage caused by, contributed by or arising out of the acts or omissions of BUYER or third parties, whether negligent or otherwise. In no event shall the EMX RSG’s liability for any cause of action whatsoever exceed the cost of the item giving rise to the claim, whether based in contract, warranty, indemnity, or tort (including negligence). Any suit arising hereunder must be commenced within one (1) year from the date the cause of action accrues. Except as provided in Article 13 Indemnity, the EMX RSG shall not indemnity any party. EMX RSG HEREBY DISCLAIMS ANY AND ALL LIABILITY AND BUYER SHALL ASSUME ALL RESPONSIBILITY FOR OBTAINING INSURANCE TO COVER LOSSES OF ALL TYPES. EMX RSG MAKES NO WARRANTIES, EXPRESS OR IMPLIED, EXCEPT AS SPECIFICALLY STATED HEREIN. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED. EMX RSG SHALL HAVE NO LIABILITY FOR FAILURE TO PERFORM OR DELAY IN PERFORMING THE SERVICES IF THE FAILURE OR DELAY IS DUE TO CIRCUMSTACES BEYOND EMX RSG’S CONTROL. IN NO EVENT WILL EMX RSG HAVE ANY LIABILITY FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR INDIRECT LOSS OR DAMAGES REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY. 

28.INTERPRETATION

Should any term or provision contained in the contract contravene or be invalid under applicable law, the contract shall not fail by reason thereof but shall be construed in the same manner as if such term or provision had not appeared therein. All transactions covered by these terms and conditions shall be governed by the laws of the state where services are performed or equipment is delivered. This contract is not assignable by any party hereto; provided, however, that EMX RSG may assign this contract to any purchaser of all or substantially all of EMX RSG’s business, whether by stock or asset sale, merger or any other similar transaction.