1. Scope. These terms and conditions of sale govern the sale of all products and services ("Products") by ECD and apply to all quotations made and purchase orders accepted by ECD. These terms and conditions supersede and replace any conflicting, contrary or additional terms and conditions attached to or contained in any purchaser order, request for quotation or other document or communication from Buyer. No waiver, alteration, or modification of any of the provisions hereof shall be binding upon ECD unless itemized in writing and signed by a duly authorized representative of ECD. Neither ECD's acknowledgment of a purchase order nor ECD's failure to object to conflicting, contrary or additional terms and conditions in a purchase order shall be deemed an acceptance of such terms and conditions or a waiver of the provisions hereof.
2. Orders. All Orders shall be initiated by Buyer issuing a Purchase Order or otherwise placing an order by electronic means acceptable to ECD. Orders shall identify the Products, unit quantities, part numbers, descriptions, applicable prices and requested delivery dates. All orders are subject to acceptance by ECD. ECD reserves the right to allocate sales of Products among its customers in its sole discretion. Notwithstanding any provisions of these Terms and Conditions to the contrary, orders for special, custom, value-added and other non-standard Products, including Products to be assembled in kit form are non-cancelable. No order may be canceled, rescheduled, reconfigured or assigned without ECD's prior written authorization, which approval shall be at ECD's sole discretion. In the event ECD consents to Buyer's requested change, Buyer will be liable to ECD for any and all additional costs and expenses incurred by ECD, including, but not limited to, additional labor and set up costs, additional shipping expenses, variation in material costs due to price changes and/or volume adjustments, etc. Further, ECD may require payment by Buyer to cover material costs already incurred by ECD if such requested rescheduling of delivery is not within the Purchase Order performance period. Any changes pursuant to this Paragraph shall be in writing. The validity of all orders, as well as their interpretation, operation and effect, shall be determined and interpreted exclusively in accordance with the Laws of the State of Massachusetts, excluding any conflict of laws, rule or principle which might refer such validity, interpretation or operation to the laws of another state.
3. Prices. Prices shall be specified by ECD and shall be applicable for the period specified in ECD's quote. If no period is specified, prices shall be applicable for thirty (30) days. Notwithstanding the foregoing, prices shall be subject to increase in the event of an increase in ECD's costs or other circumstances beyond ECD's reasonable control. ECD's prices are FOB, unless specified otherwise on the original Quote supplied to Buyer by ECD for the Products in question, and are exclusive of taxes, impositions and other charges, including sales, use, excise, value added and similar taxes or charges imposed by any government authority, international shipping charges, forwarding agent's and broker's fees, consular fees, document fees and import duties. If ECD shall be liable for or shall pay any of the foregoing, same shall be paid by Buyer to ECD in addition to the price of the Products.
4. Terms of Payment. Payment shall be net thirty (30) days from date of invoice or as otherwise specified by ECD. Buyer agrees to pay the entire net amount of each invoice from ECD pursuant to the terms of each such invoice without offset or deduction. Orders are subject to credit approval by ECD which may in its sole discretion at any time change the terms of Buyer's credit, require payment in cash, bank wire transfer or by official bank check and/or require payment of any or all amounts due or to become due for Buyer's order before shipment of any or all of the Products if ECD believes in good faith that Buyer's ability to make payments may be impaired or if Buyer shall fail to pay any invoice when due, ECD may suspend delivery of any order or any remaining balance thereof until such payment is made or cancel any order or any remaining balance thereof, and Buyer shall remain liable to pay for any Products already shipped and all Non-Standard Products ordered by Buyer. Buyer agrees to submit such financial information from time to time as may be reasonably requested by ECD for the establishment and/or continuation of credit terms. Checks are accepted subject to collection and the date of collection shall be deemed the date of payment. Any check received from Buyer may be applied by ECD against any obligation owing from Buyer to ECD, regardless of any statement appearing on or referring to such check, without discharging Buyer's liability for any additional amounts owing from Buyer to ECD, and the acceptance by ECD of such check shall not constitute a waiver of ECD's right to pursue the collection of any remaining balance. ECD may charge interest on any invoice not paid when due from the due date to the date of payment at the rate of one and one-half (1-1/2%) percent per month or such lower or higher rate as may be the maximum allowable by law. If Buyer fails to make payment when due, ECD may pursue any legal or equitable remedies, in which event ECD shall be entitled to reimbursement for costs of collection and reasonable attorneys fees.
5. Delivery and Title. All shipments by ECD are F.O.B. point of origin and all transportation charges shall be paid by Buyer in addition to the price of the Products. Subject to ECD's right of stoppage in transit, delivery of the Products to the carrier shall constitute delivery to Buyer and risk of loss shall thereupon pass to Buyer, however, title shall remain in ECD until Buyer makes payment in full for the Products. Selection of the carrier and delivery route shall be made by ECD unless specified by Buyer. ECD shall use reasonable efforts to initiate shipment and schedule delivery as close as possible to Buyer's requested delivery dates. Buyer acknowledges that delivery dates provided by ECD are estimates only and that ECD is not liable for failure to deliver on such dates. ECD reserves the right to make deliveries in installments. Delivery of a quantity which varies from the quantity specified shall not relieve Buyer of the obligation to accept delivery and pay for the products delivered. Delay in delivery of one installation shall not entitle Buyer to cancel other installments.
6. Inspection and Acceptance. Inspection and acceptance of the Products shall be Buyer's responsibility. Buyer is deemed to have accepted the Products unless written notice of rejection is received by ECD within fourteen (14) days after delivery of the products. Buyer waives any right to revoke acceptance thereafter. Buyer shall report any discrepancy in shipment quantity or damage or defects within fourteen (14) days after delivery.
7. Force Majeure. ECD shall not be liable for failure to fulfill its obligations herein or for delays in delivery due to causes beyond its reasonable control, including, but not limited to, acts of God, natural disasters, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, chances in law, materials, shortages, fire, strikes, floods, epidemics, quarantine restrictions, riots, war, acts of terrorism, delays in transportation or inability to obtain labor or materials through its regular sources or due to the item being in an allocation status. ECD's time for performance of any such obligation shall be extended for the time period of such delay or ECD may, at its option, cancel any other or remainder thereof without liability by giving notice of such cancellation to Buyer.
8. Packaging. ECD will provide commercial packaging adequate, under normal conditions, to protect the Products in shipment and to identify the contents. Any special packaging requested by Purchaser, will be at Purchaser's expense.
9. Warranty. ECD warrants that all items will be delivered free from defects in material and workmanship and will conform to ECD's operating specifications. Any immediately apparent defectiveness must be communicated in writing to ECD within fourteen (14) days of receipt of the Product by Buyer, and this written communication must specify the defect or fault and reference the ECD invoice number for the Product in question. If the provisions of these Terms and Conditions are not complied with, any claims of the Buyer alleging defectiveness will be expressly excluded.
Any Claim made by Buyer based on an alleged latent defect of quality must be made in writing to ECD within fourteen (14) days of its discovery by Buyer. Any such defect which should have been detected by the initial inspection made by Buyer on receipt of the Products will be excluded.
Any question as to the suitability of the Product supplied by ECD for its final application is the sole responsibility of Buyer. ECD will not be responsible for any claims resulting from a failure by Buyer, or any customer of Buyer, to comply with the basic technical conditions applicable to the Product as stated by ECD. ECD's exclusive liability for breach of warranty shall be limited to, at ECD's option, repairing the defective item or replacing it with a non-defective replacement. As far as repair or replacement is concerned, the warranty period is 12 months from delivery of the Product by ECD.
ECD's liability on any claim of any kind, including negligence for loss or damages arising out of, connected with or resulting from the manufacture, sale, delivery, resale, repair or use of any Product, shall in no case exceed the price applicable to the Product which gives rise to the claim.
Warranty claims due to defects expire after the expiry of 12 months from delivery of the Product by ECD. ECD makes no other warranties, express or implied and specifically no warranty of merchantability or fitness for a particular purpose.
10. Limitation of Warranty. Buyer shall not in any event be entitled to, and ECD shall not be liable for indirect, special, incidental or consequential damages of any nature including, without limitation, business interruption costs, removal and/or re-installation costs, loss of profit or revenue, loss of data, promotional or manufacturing expenses, overhead, injury to reputation or loss of customers, even if ECD has been advised of the possibility of such damages. Buyer's recovery from ECD for any claim shall not exceed Buyer's purchase price for the products giving rise to such claim irrespective of the nature of the claim, whether in contract, tort, warranty or otherwise, ECD shall not be liable for and the Buyer shall indemnify, defend and hold ECD harmless from any claims based on ECD's compliance with Buyer's design, specifications or instructions, or modification of any products by parties other than ECD, or use in combination with other products.
11. Data. Data supplied shall be conclusively presumed to pertain to Products, components, or processes, developed at ECD's private expense and no rights of any kind to such shall pass to Buyer. Correspondingly, should data be furnished by Buyer, no right therein will pass to ECD provided, however ECD may copy and use such data to the extent necessary to furnish the Products called for hereunder. If statements or advice, technical or otherwise, are offered or given to Buyer, such statements or advice shall be deemed to be given as an accommodation to Buyer and without charge unless otherwise specified and ECD shall have no responsibility or liability for the content or use of such statements or advice.
12. Change. If ECD and Buyer have mutually agreed to use an Electronic Data Interchange (EDI) system to facilitate purchase and sale transactions, Buyer 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. ECD and Buyer will negotiate and agree on technical standards and methods to use in making EDI purchases, and will use proper security procedures to protect EDI records from improper access. The business records maintained by ECD regarding EDI purchases made by customer shall be controlling.
13. CHANGE. ECD reserves property rights and copyrights for all engineering drawings, diagrams, and other documents that are prepared by ECD and forwarded to Buyer.
14. CHANGE. ECD will take all appropriate measures to advise users of the Products delivered hereunder of all potential danger to persons and property arising from such use and operation. Buyer agrees to indemnify and hold harmless ECD from all claims of any kind for injuries to persons or property arising from any alteration to the Product made by Buyer or misrepresentation of the Product by Buyer. Buyer will, at its sole cost, carry liability insurance adequate to protect Buyer and ECD against such claim.
15. CHANGE. Any contract for the sale of goods made between Buyer and ECD may be canceled by Buyer only upon the advance written consent of ECD (which it may withhold in its sole discretion). As a condition to receiving ECD's written consent, Buyer shall pay all reasonable cancellation and restocking changes incurred by ECD due to Buyer's cancellation of the order.
16. CHANGE. These Terms and Conditions will be construed and interpreted in accordance with the Laws of the State of Massachusetts.