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1. General

1.1. As used in these Terms, “Products” means the full range of valves and actuators that Emech manufactures and sells from time to time.

1.2. All sales by Emech shall be subject to these Terms. Any purchase order submitted by the Customer shall be subject to these Terms. Any conditions in the Customer’s purchase order, or otherwise proposed by the Customer, shall not bind Emech unless Emech expressly accepts such conditions in writing. The Customer’s receipt of the Products shall constitute its acceptance of these Terms. To modify these Terms, both parties must sign an agreement to that effect.


2. Price

2.1. The price does not include applicable taxes (e.g. GST), freight and insurance. Emech shall add such charges, where applicable, to the price of the Products and such charges shall appear as separate items on the invoice. Emech may issue a supplementary invoice for any deferred or delayed charges that would otherwise be payable by the Customer but for the fact that they were not known on the date of invoice.

2.2. Emech shall specify the currency in its sales quotation. Sales quotations are valid for 30 days from date of issuance, after which they will lapse.


3. Payment

3.1. Payment is due by the 20th of the month following the date of invoice. The Customer shall pay the invoice price in full and shall have no right to set off against such price any claims which the Customer might have against Emech.


4. Shipping Terms

4.1. Emech’s standard shipping terms are ex works Emech’s facility in Auckland. Emech will notify the Customer when the Products are ready for the Customer to pick up. Upon the Customer’s request, and at its expense, Emech will ship the Products door-to-door. Whether ex works or door-to-door, risk of loss or damage to the Products shall pass to the Customer from the moment the Products leave Emech’s premises.

4.2. Any delivery dates given, whether oral or in writing, shall be deemed good faith estimates only. Time is not of the essence.

4.3. Emech shall use all reasonable endeavours to meet any delivery date specified in an order that it has accepted. However, Emech shall not be responsible for late delivery due to circumstances beyond its reasonable control.

4.4. Emech accepts no liability whatsoever for any loss or damage suffered by the Customer as a consequence of any delay or failure to deliver any of the Products irrespective of the cause.

4.5. To assist with timely delivery, the Customer shall promptly provide all specifications and other information that Emech requires to manufacture the Products.

4.6. The Customer shall not fail or refuse to accept delivery. Emech may issue an invoice when the Products are ready for delivery.


5. Inspection

5.1. Before installation and commissioning, the Customer shall visually inspect the Products for any obvious damage, defects or other evidence that the Products do not conform to the order. Unless the Customer gives written notice of a claim to Emech within thirty (30) days after receipt of the Products, the Products shall be deemed to have been accepted in good order and condition.


6. Installation

6.1. Emech is not responsible for installing, commissioning or testing the Products. The Customer is responsible for installing, commissioning and testing the Products before putting the Products into actual production. The Customer shall install, commission and test the Products in accordance with Emech’s Installation, Operation and Maintenance Manual, occupational safety and health requirements, other relevant standards and best industry practices. The Customer shall use qualified technicians to install, commission and test the Products.

6.2. Installation is entirely at the Customer's risk. Emech accepts no liability for direct, indirect, incidental, special, or consequential damages resulting from the Customer's failure to follow Emech's warnings, instructions and procedures or such other procedures generally applicable to equipment of the same type. The foregoing limitation extends to damages to person or property as well as loss of profits, loss of products, loss of operations, the cost of alternative arrangements and loss of time, whether incurred by the Customer, its employees or a third party.

6.3. Only qualified technicians shall install the Products. The Customer shall not allow any person to attempt installation unless such person is a qualified technician. Emech accepts no liability for damages resulting from faulty installation.

6.4. To install the Products, the Customer may require a 24 volt power supply to the unit. Emech also recommends the use of a check valve on the inlet port when installing a three port mixing valve. The power supply and check valve are not included in the price of the Products but are available for purchase as separate items from Emech.

6.5. If the Customer intends to use an actuator in the remote mode, the Customer will need a 4-20 milliamp set point or positional control signal to function properly.


7. Disclaimer

7.1. Emech's Products are capable of being used in many different types of industrial applications and operating environments. Consequently, Emech is only able to provide general guidelines concerning the suitability and use of its Products. It is not possible for Emech to provide specific guidelines for specific applications and operating environments simply because there are too many of them. Therefore, proper selection of a specific Product for a specific application and operating environment, and its compatibility with other equipment to which it is attached, is the Customer's responsibility. The Customer must assume the ultimate responsibility for the proper sizing, selection, compatibility, installation and operation of the Products. All operating parameters should be validated for the Customer's application by a professional engineer, qualified installer or by another technical expert. Emech does not warrant the performance of its Products or their suitability for a particular purpose.

7.2. Although information provided by Emech is believed to be accurate, Emech accepts no liability for any errors or omissions. Emech will endeavour to provide timely information but it cannot represent that the information is complete. Any information provided shall not be deemed a warranty, representation or guarantee concerning a Product's suitability or fitness for a Customer's specific purpose. Emech does not warrant the information or any particular benefits that the Customer will derive. It is the Customer's responsibility to determine the suitability for its own use of the Products. The Customer must make its own independent judgement and assessment and should not rely upon any opinions, interpretations, statements, assurances or representations given.

7.3. Because Emech is continually improving and upgrading its Products, the specifications, dimensions and information are subject to change without notice.

7.4. Information provided by Emech shall not be deemed a warranty, representation or guarantee nor shall any such information extend or expand Emech's obligations under its standard Product warranty.


8. Limitation of Liability

8.1. The Customer shall strictly comply with the installation, operating, care and maintenance, trouble shooting, warnings and safety procedures in Emech’s manuals. The Customer shall also strictly comply with such other documentation in respect to the Products as Emech may furnish to the Customer, from time to time. Emech shall not be liable for any costs or damages incurred by the Customer as a consequence of the Customer’s failure to so comply with such manuals and other documentation.

8.2. Under no circumstance shall Emech be liable for any incidental, special, indirect or consequential damages, including loss of profits or loss of operations. Emech’s liability under any circumstance shall be limited to the price of the Products giving rise to such liability.


9. Warranty

9.1. All Products sold are subject to Emech’s standard warranty which covers defects in materials and workmanship. The term of the warranty is 12 months from date of purchase. The warranty is for parts only, meaning that Emech will repair or replace a Product that is subject to a valid warranty claim. The Customer is responsible for disassembling, reassembling and reinstalling the Product. Emech’s warranty contains important exclusions, disclaimers and limitations of liability. Emech has posted a copy of its warranty and has an on-line warranty registration process to be completed by the customer on its web site. The Customer may also obtain a copy directly from Emech or its authorised representative.


10. Technical Support and Sizing Advice

10.1. In circumstances where Emech provides technical support, including sizing advice, the Customer acknowledges that Emech is not in a position to know all relevant details, applications and circumstances concerning the Customer’s operations and requirements. Therefore, any such support and advice that Emech provides is purely on a best endeavours basis. The Customer accepts such support and advice entirely at its own risk. The Customer agrees that Emech shall not be liable for any errors or omissions in rendering support or advice.


11. Intellectual Property

11.1. As used in this clause 11, “Intellectual Property” means Emech’s proprietary interests in the Products, whether arising under statutory or common law, including without limitation: Emech’s brands; its patents and patent applications; know-how; specifications; manufacturing methods; research and development; quality control procedures; technical documentation; and trade secrets.

11.2. The Customer hereby acknowledges Emech’s ownership of the Intellectual Property. The Customer disclaims any interest in the Intellectual Property. The Customer shall not challenge the validity of the Intellectual Property. The Customer shall not take any action prejudicial to the Intellectual Property.


12. No Sale by Description or Sample

12.1. Unless otherwise expressly agreed in writing, Emech does not warrant that the Products conform to any specific description or sample. Emech reserves the right to alter its Product dimensions, drawings, specifications, designs, materials, components or construction methods. Emech may do so without notice. Any such alterations shall not impose upon Emech an obligation to alter Products that it already delivered to the Customer. Any description of the Products, whether given verbally or appearing in Emech’s manuals, sales literature, catalogues or otherwise, shall not constitute a sale by description, unless Emech expressly agrees in writing that such description forms a condition of sale. An inspection by the Customer of the Products, or a demonstration of the Products, shall not constitute a sale by sample. Unless otherwise expressly agreed in writing, it is not a condition of sale that the Products correspond precisely with the dimensions and specifications appearing in any Product literature or with any sample that Emech may have shown or demonstrated to the Customer.


13. Changes

13.1. The Customer may request in writing any change to an order. Emech shall not unreasonably withhold its consent. However, the Customer shall bear any additional costs incurred by Emech as a consequence of such change.


14. Verbal Instructions and Orders

14.1. The Customer shall immediately confirm, in writing, all verbal instructions and orders. Emech may wait until the Customer does so before executing the Customer’s verbal instructions and orders. If Emech does not wait, Emech shall execute the Customer’s verbal instructions and orders entirely at the Customer’s risk. In that case, Emech accepts no responsibility for errors and omissions.


15. Cancellation

15.1. An order for a custom designed Product is not cancellable under any circumstance. The Customer may request, in writing, the cancellation of an order for a Product that is not custom designed. Emech shall use its reasonable endeavours to find another customer for the Product and, if successful, Emech will allow the Customer to cancel the order.


16. Purchase Money Security Interest

16.1. The Products shall remain personal property and shall retain their character as such even when the Customer affixes, attaches or assembles the Products to a machine, engine, pump, pipe or other piece of equipment. Emech shall retain a purchase money security interest in all Products sold and delivered to the Customer. Emech may perfect its security interest by registering one or more Financing Statements pursuant to the Personal Property Securities Act 1999 in respect to sales by Emech to the Customer. The Customer waives any right to receive verification of financing statements so registered.

16.2. If the Customer fails to comply with the terms of payment of Emech, then Emech, in addition to its rights and remedies under the Personal Property Securities Act 1999, shall be entitled to such other rights and remedies as may be available to it under either statutory or common law.


17. Representations

17.1. Emech’s staff, agents and representatives have no authority to make any representations, statements, warranties, conditions or agreements that conflict with these Terms, unless made in writing and signed by a duly authorised officer of Emech. Any such unauthorised representations, statements, warranties, conditions or agreements shall not bind Emech nor form part of any contract between the Customer and Emech.

17.2. If the Customer requires Emech to sign a certificate in respect to any aspect of a Product’s performance or specifications, such certificate shall only be valid if signed by a duly authorised officer of Emech.


18. Other Clauses

18.1. Returns. Returns (other than for warranty purposes or damage claims) shall be entirely at the discretion of Emech. Products returned must be in the same condition as received.

18.2. Governing Law. New Zealand law shall govern these Terms. The Customer submits to the jurisdiction of New Zealand courts.

18.3. Invalidity. If a court holds any provision contained in these Terms to be unlawful, invalid or unenforceable, the validity and enforceability of the remaining provisions shall not affected.

18.4. Compliance with Law. The Customer shall comply with all applicable laws within the jurisdiction in which the Customer is located.

18.5. Conflicts. The specific terms of any sales confirmation, sales quotation or invoice to which these Terms are attached, or incorporated by reference, shall prevail in the event of a conflict. In the event of a conflict between these Terms and a Purchase Order issued by the Customer, these Terms shall govern unless Emech expressly accepted the Customer’s Purchase Order in writing.

18.6. Force Majeure. Emech shall not be liable for any failure or delay in delivering the Products resulting from circumstances beyond its reasonable control, including, without limitation: Unavoidable delays in production; delays in the delivery of raw materials; default by sub-contractors; default by component suppliers; strikes and labour unrest; shipping delays; shortages; war; acts of terrorism; government intervention; fire; flood; accident; natural disaster; or any other event interpreted under New Zealand law as an "act of God. If Emech invokes force majeure, it shall do all things within its power to end the circumstances causing the force majeure and to mitigate any losses that the Customer may suffer as a consequence thereof. However, Emech shall not be liable for any such losses.

18.7. Non-Waiver. No failure by Emech to insist upon strict performance of any of these Terms, or any delay in exercising any of its rights or remedies, shall constitute a waiver or variation of these Terms or a waiver of any such right or remedy.

Emech Control Limited
P.O. Box 2388
Auckland, New Zealand
Tel: +64-9-307-0700
Fax: +64-9-307-0800
Website: www.emechcontrol.com


Doc No.BDLE0004_Rev0 Version 1.0