GENERAL: These Customer Terms and Conditions (these “Terms and Conditions”) shall apply to all quotations for purchase orders delivered by Womack Machine Supply Co., LLC and their affiliates d/b/a Evolution Motion Solutions (“Evolution”) (such quotations to remain open only for thirty (30) days unless earlier terminated by Womack) and all purchase orders submitted by you (herein “Buyer”) and accepted by Womack. Womack is not obligated to accept any purchase order. Acceptance by Evolution must be in writing, with confirmed email communication by authorized parties being deemed a writing. The terms “Goods” or “Services” whether used together or separately and wherever appearing in these Terms and Conditions mean (i) any and all products, supplies, materials, processes and/or equipment, and/or (ii) any and all services, work or labor of any kind furnished or performed by Evolution, under these Terms and Conditions and any subsequent amendments, changes or modifications hereof.
PRICING, TAXATION AND PAYMENT TERMS: Prices stated on the body of any quotation or invoice do not include taxes. Rates and any quantity of hours indicated on the quote for services shall be construed only as an estimate. Evolution’s acknowledged purchase order prices are firm and final for thirty (30) days from the date of the order. Goods that do not ship within thirty (30) days from the date of order may be subject to a price change due to manufacturer/supplier price increases and applied surcharges and Buyer agrees that the price of the Goods shall be the price in effect on the date Goods are shipped to Buyer. Taxes are invoiced as a separate item, unless certificates of exemption acceptable to the taxing authorities are provided by Buyer. Evolution will invoice goods upon shipment and actual hours / rates for services upon completion of work and/or agreed upon schedule. Buyer waives the right to dispute any invoiced amount unless Buyer advises Evolution of the dispute (with detailed reasons) within ten (10) days of the invoice date. Buyer will pay all undisputed amounts in full, without set-off, counterclaim or withholding within thirty (30) days from the date of the invoice or such other time as approved, in writing, by Evolution’s credit department. If Buyer ever becomes delinquent with its payment obligations, or if Evolution believes that Buyer’s business operations cause a risk of collection, Evolution may require that all purchase orders be paid on a C.O.D. basis. All past due accounts will bear interest at the rate of the lesser of: (i) fifteen percent (15%) per annum; or (ii) the maximum rate permitted by applicable law. Payment terms, imposed by third party vendors, may require advance installments or progress payments by Buyer. Upon termination or breach of any installment purchase order by such third party vendor, Evolution shall have no liability or responsibility to Buyer regarding the repayment or recovery of any installation or progress payment.
TERMINATION OF THE ORDER OR PAYMENT TERM CHANGES: Evolution reserves the right to terminate a quoted price prior to acceptance by Buyer. Further, Evolution reserves the right to terminate any acknowledged purchase order, or Evolution may change the terms of payment of any purchase order, if at any time prior to shipment of the order, (i) Evolution deems there is a significant change in Buyer’s financial condition; (ii) there is a change in control of Buyer; (iii) there is a breach by Buyer of any purchase order or any provision in these Terms and Conditions and such breach is not cured within ten (10) days of Evolution’s delivery of written notice to Buyer identifying such breach; or (iv) if any petition is filed or proceeding commenced by or against Buyer under any state or Federal law relating to bankruptcy, reorganization, receivership or assignment for the benefit of creditors. Any such termination of the quoted price, acknowledged purchase order or change of payment terms will be without liability to Evolution, and shall be effective upon delivery of written notice by Evolution to Buyer.
After Buyer’s acceptance of Evolution’s quotation or Evolution’s acceptance of Buyer’s purchase order, the order may also be terminated by mutual written agreement of Evolution and Buyer. Upon such mutual termination, Evolution may levy termination charges of up to 100% of the non-cancelable goods. The termination charges may include, without limitation, the recovery costs or costs in process of Evolution or Evolution’s supplier incurred up to the date of the agreed termination.
SHIPMENTS: Goods will be shipped F.O.B. origin, freight prepaid, and all associated charges will be added to the invoice. Buyer guarantees payment of prepaid freight. If Buyer specifies a carrier, the goods must be picked up at the place of business of Evolution or Evolution’s supplier within three (3) business days of written notification by Evolution that the goods are completed by Evolution or Evolution’s supplier. If Buyer fails to coordinate pick-up of the goods within such three (3) day period, Evolution or Evolution’s supplier may charge Buyer a reasonable storage fee (to be paid by Buyer upon demand). On placing goods in storage, delivery is complete and risk and title in the goods passes to Buyer. Evolution has no liability or responsibility for risks of loss related to such goods after delivery.
BUYER DUTIES: Buyer must, in a timely manner, supply the information, documents and instructions Evolution reasonably needs to proceed with performance of the purchase order. Buyer is responsible for the accuracy and completeness of all information it supplies. If Evolution performs services at Buyer site, Buyer will not ask Evolution or its personnel to enter any agreement which imposes, waives, releases, indemnifies or otherwise limits or expands any rights or obligations in respect of Evolution or its personnel. Any such agreement is void. If the acts or omissions of Buyer, its personnel or other contractors delay or prevent Evolution from performing its duties under the purchase order or increases Evolution’s costs, time will be extended and Buyer will compensate Evolution accordingly. Evolution will ensure that its personnel will, while on the Buyer premises, comply with the Buyer’s reasonable site rules that are communicated in writing to Evolution personnel prior to arrival and with Buyer’s reasonable instructions relating to health and safety while on site.
RETURN OR DISPOSITION OF UNCLAIMED GOODS: In the event that Buyer has not issued a purchase order or instructions in response to Evolution’s quote for repair services within thirty (30) days from the date of the quote, Evolution will provide a written notification to Buyer requesting instruction regarding the disposition of the goods. If Evolution does not receive a response from Buyer within thirty (30) days from the date of the written notification of such request, the goods will either be: (i) returned to Buyer freight collect, or (ii) disposed of at Evolution’s sole discretion. Evolution shall have no liability regarding the return or other disposition of the goods. In addition to any expense associated with the return or disposition of the goods, Buyer agrees to pay all expenses incurred in preparing the quote for the repair service. WARRANTY:
Components Not Manufactured By Evolution But Distributed By Evolution: For any goods or components not manufactured by Evolution, Evolution extends to Buyer only that warranty which is extended by the manufacturer and to the extent assignable (such warranty to be asserted through and against such manufacturer). The components are warranted to meet the specifications of the manufacturer if they are applied and maintained according to the specifications of the manufacturer.
Hydraulic, Pneumatic, And Electrical Circuits Supplied By Evolution For Distributed Components: Evolution may provide circuit layouts as an accommodation to Buyer based upon Buyer’s specifications for an application. Buyer acknowledges that Evolution has no control over the implementation and usage of these circuits in Buyer’s application and that Evolution disclaims any warranty or liability for such circuits or the incorporation of such circuit layouts into any design of Buyer. Specifically, but not by way of limitation, Evolution shall have no responsibility for, and Evolution shall have no liability related to, the use of such circuits in any application.
Power Units And Electrical Control Panels Fabricated By Womack Systems, L.C. For Evolution: Certain assemblies, including, without limitation, power units and electrical control panels, may be developed by Womack Systems, L.C. (an affiliated company of Evolution) for Evolution. These assemblies, when properly installed and maintained by Buyer, are warranted to be free of defects in materials and workmanship for a period of one (1) year from the date of shipment. Workmanship is warranted only to conform to generally accepted engineering standards. The installation and startup of these assemblies is the responsibility of Buyer. Evolution shall not be liable for installation, supervision, or work done by the agents of Buyer. Evolution shall also not be responsible for Buyer’s misuse of the goods, failure of Buyer to properly service the goods, or Buyer’s use of the goods in a manner inconsistent with their intended purpose. These warranties shall be void if there has been misuse, accident, modifications, unsuitable physical or operating environment or improper maintenance, storage or installation of the goods.
Services: Evolution warrants that services will conform with applicable standards of quality and performance in the industry; and Evolution and its affiliates personnel delivering the services will use reasonable skill and care in performing the services. Unless otherwise stated, the warranty period is one (1) year from the date of completion of the services. The warranty period for services re-performed is thirty (30) days or until the end of the original warranty period. If, within the warranty period, Buyer discovers any non-conformity with a warranty, Buyer shall notify Evolution in writing. If Evolution determines, in its sole discretion, that the non-conformity was a result of the services, Evolution will correct the non-conforming services. The warranty excludes, and Buyer will pay the cost of all repairs caused by, any of the following: normal wear and use; inadequate maintenance; unsuitable power sources or environmental conditions; improper handling; storage, installation, or operation; misuse or accident caused by anyone other than Evolution; a modification or repair not approved by Evolution in writing; materials or workmanship made, provided or specified by Buyer; contamination; the use of unapproved parts; or any other cause not the fault of Evolution.
Exclusions: EVOLUTION MAKES NO OTHER WARRANTY OR REPRESENTATION OTHER THAN AS SET FORTH IN THESE TERMS AND CONDITIONS AND EVOLUTION EXPRESSLY DISCLAIMS ANY WARRANTY AS TO FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. IT IS FURTHER EXPRESSLY AGREED BY BUYER THAT EVOLUTION SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR LOSS OF BUSINESS FROM THE FAILURE, IN PART OR IN FULL, OF ANY GOODS ACQUIRED BY BUYER FROM EVOLUTION OR DELAY IN PERFORMANCE BY EVOLUTION. ANY CLAIM FOR BREACH OF WARRANTY MUST BE PRESENTED IN WRITING PRIOR TO ONE (1) YEAR AFTER SALE. THE SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY SHALL BE THE REPLACEMENT OF THE WARRANTED GOODS OR REFUND OF THE PURCHASE PRICE, AT THE OPTION OF EVOLUTION. EXCEPT AS SET FORTH HEREIN, EVOLUTION HAS MADE NO AFFIRMATION OF FACT, DESCRIPTION OF THE GOODS OR PROMISE THAT: (i) HAS BECOME ANY BASIS OF THE BARGAIN HEREIN; OR (ii) RELATES TO THE GOODS BEING SOLD THAT HAS CREATED OR AMOUNTED TO AN EXPRESS WARRANTY THAT THE GOODS WOULD CONFORM TO ANY SUCH AFFIRMATION OR PROMISE OR TO ANY DESCRIPTION OF THE GOODS, EXCEPT TO IDENTIFY THE GOODS TO THE CONTRACT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO BUYER. THIS WARRANTY GIVES BUYER SPECIFIC LEGAL RIGHTS, AND BUYER MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
RETURNS OF DEFECTIVE GOODS: If Buyer deems components of the assembly defective, Buyer must give Evolution timely written notice of the defective component or assembly. Evolution will determine if the defect was caused by improper installation or maintenance by Buyer. If the non-conformance of the goods is the result of defects in materials or workmanship, Evolution will repair or replace the goods. Delivery of replacement goods will be based upon the delivery lead times of Evolution’s suppliers. If the goods are to be replaced, Evolution will issue Buyer a written authorization to return the goods prepaid freight to the supplier of Evolution. Evolution will replace the goods F.O.B. shipping point. Evolution does not agree to a refund of the cost of the goods or services to Buyer. Any and all costs required to disassemble, remove, reassemble and/or reinstall any goods shall be the responsibility and cost of Buyer.
PERFORMANCE: Evolution will not be responsible for any claims or costs, including, without limitation, late fees or penalties, levied by Buyer for delays caused by, but not limited to, strikes, lockouts, accidents, fire, delay in transportation, acts of God, embargoes, governmental action (including national, state or local orders limiting, preventing or delaying any work effort during an epidemic or pandemic) or any other causes beyond Evolution’s control. All delivery periods and dates stated are approximate. Evolution will not be liable for any damages caused by its failure to deliver or perform on time.
INDEMNIFICATION: Evolution shall be held liable only for those acts or omissions resulting from the sole negligence of Evolution or Evolution’s employees, and Buyer shall indemnify, defend and hold harmless Evolution against liability for Buyer’s sole negligence, contributory negligence, or willful misconduct. Buyer will indemnify, defend and hold harmless Evolution, each of its affiliates, and each of its affiliates’ employees, officers, directors and agents (each a Evolution Indemnified Party) from and against any and all liability, loss, damage, expense (including reasonable attorney’s fees and expenses) and cost that any Evolution Indemnified Party may be required to pay to one or more third parties resulting from or arising out of bodily injury or death of any person as a result of use of any goods supplied or sold by Evolution, except to the extent caused by the gross negligence or intentional misconduct of Evolution or any Evolution Indemnified Party or a breach by Evolution of any of its representations, warranties or covenants set forth in these Terms and Conditions.
ALTERNATIVE DISPUTE RESOLUTION:
Mediation: The parties agree to submit any claim, controversy or dispute (collectively, a “Dispute”) arising out of or relating to a purchase order or these Terms and Conditions to non-binding mediation prior to bringing such Dispute in a court or any other tribunal. The mediation shall be conducted in Dallas, Texas, through either an individual mediator or a mediator appointed by a mediation services organization or body experienced in the mediation of general business disputes, agreed upon by the parties and, failing such agreement within a reasonable period of time after a party has notified the other party of its desire to seek mediation of any Dispute (not to exceed fifteen (15) days), by the American Arbitration Association (the “AAA”) in accordance with its rules governing mediation. The costs and expenses of mediation, including compensation and expenses of the mediator (and except for the attorneys’ fees incurred by the parties), shall be borne by the parties equally.
Litigation: If the parties are unable to resolve the Dispute within forty-five (45) days after the mediator has been chosen, then, upon election and action by either party, such Dispute shall be resolved through litigation to be filed with the applicable federal or state courts located in Dallas County, Texas. The prevailing party in any such filed litigation shall be entitled to the recovery of its attorneys’ fees and costs from the losing party, in addition to any other remedies allowed under these Terms and Conditions or permitted under applicable law.
Equitable Relief: Notwithstanding the preceding, the parties acknowledge that this Alternative Dispute Resolution section shall not preclude either party from seeking equitable relief from a court of competent jurisdiction within Dallas County, Texas (i.e., for a temporary or permanent injunction, etc.) necessary to protect a party’s interests upon a breach of a purchase order or these Terms and Conditions. MISCELLANEOUS:
All notices, requests, consents, and other communications under these Terms and Conditions shall be in writing and shall be deemed to have been delivered on the date personally delivered or the date deposited in the United States Postal Service, postage prepaid, by certified mail, return receipt requested, or electronic mail with delivery confirmed, if addressed to the respective parties at the addresses communicated by each party to the other. Either party hereto may designate a different address by providing written notice of such new address to the other party hereto.
All purchase orders and these Terms and Conditions shall be construed and enforced in accordance with and governed by the laws of the State of Texas, and exclusive venue for any proceeding relating to the same shall be in Dallas County. The waiver by one party of a breach of any provision of a purchase order or these Terms and Conditions by the other party shall not operate or be construed as a waiver of any subsequent or continuing breach by the waiving party.
Buyer may not transfer, assign or sublicense all or any part of a purchase order or any part of these Terms and Conditions, except with the express prior written consent of Evolution. All terms of a purchase order and all provisions of these Terms and Conditions shall be binding upon and inure to the benefit of the parties hereto, including any successors or permitted assigns.
Compliance with Applicable Laws. All parties represent and warrant they will comply with all applicable federal, state and local laws, rules, regulations, statutes, ordinances, codes, orders and/or programs. Buyer shall assume full responsibility for exporting goods. Evolution shall provide reasonable assistance to Buyer in complying with all applicable import and export laws and regulations for goods that will be exported and Buyer shall provide Evolution with the export information related to the export of the goods in order for Evolution to perform its reasonable due diligence to ensure its compliance with all applicable import and export laws and regulations. Notwithstanding the preceding, Evolution shall have no responsibility or liability relating to or arising from the export or import of any of Buyer’s goods.
Notwithstanding the designation of a final custom developed product as a “Work for Hire”, Evolution shall own and retain all rights to use any component, tool, design, process, trade secret or other know-how developed or used to create the final “Work for Hire” work product. These Terms and Conditions, together with each quotation, purchase order and acknowledgement, cancel and supersede all prior negotiations and understandings between the parties relating hereto, and embody the entire agreement and understanding between Buyer and Evolution with respect to the matters covered hereby, notwithstanding the delivery of any other terms and conditions and/or similar documents or agreements by Buyer to Evolution. If there is a conflict between a provision in these Terms and Conditions and a term in a purchase order, the provision in these Terms and Conditions shall govern and control. These Terms and Conditions may be amended only by an instrument in writing executed by Buyer and a duly authorized executive officer of Evolution. Any additional or different terms contained within Buyer’s purchase order or acceptance of a quotation are hereby objected to, unless such terms are specifically agreed to by Evolution in writing. In the event that a purchase order submitted by Buyer is characterized as an offer or counter-offer, rather than an acceptance of a quotation submitted by Evolution, any acknowledgement submitted by Evolution shall be conditioned on the assent of Buyer to these Terms and Conditions.