Terms and Conditions of Sale
These Standard Terms and Conditions of Sale (“Terms”) apply to all deliveries of products and services (collectively, “Products”) from E-CIRCUIT MOTORS, INC. (“ECM”) to any customer identified specifically (“Customer”) in any ECM sales order, any order form executed between ECM and Customer or any ECM invoice to a customer for Products (an “Order”). “Services” as used herein means all labor, supervisory, technical, and engineering, installation, repair, consulting, or other services provided by ECM under the Order. The sale of any Products and Services is expressly conditioned upon Customer’s acceptance of these Terms. These Terms apply to the agreement between ECM and Customer to the exclusion of any other terms, and no other terms shall be binding upon ECM and Customer unless otherwise expressly agreed in writing by ECM and Customer making express reference to amending these Terms. Any authorization by Customer to ship or provide Products, issuance of a Purchase Order relating to such Products or Customers receipt thereof will constitute acceptance of these Terms.
1. Confirmation of Order / Acceptance of Quotation
An Order constitutes an offer by the Customer to purchase the Products in accordance with these Terms. ECM shall not be deemed to have accepted an Order until Customer has received confirmation from ECM of the Order, in the form of written confirmation or invoice to Customer, at which point a binding agreement shall be formed (the “Agreement”) and shall be governed by these Terms. Customer and ECM acknowledge that no terms or conditions in Customer’s Order shall operate to modify, add to, or otherwise conflict with these Terms, and ECM shall not be deemed to have in any way enlarged or modified its obligations or liabilities by filling such Order or by failing to further object to Customer’s terms and conditions.
2. Terms of Delivery
Unless otherwise agreed in writing between ECM and Customer, the Products are delivered to Customer or its carrier Ex Works (Incoterms 2020)(“EXW”) from any of ECM’s places of business and title and risk of loss to each article sold by ECM shall pass to Customer upon delivery to the carrier at ECM’s location. Absent special instructions, ECM has the right to dispatch the Products to Customer at the risk and expense of Customer by a transport method chosen by ECM, in its sole discretion. EXW or other agreed delivery term shall be interpreted in accordance with the Incoterms valid at the time a binding agreement is made, as described in Paragraph 1 of these Terms. Customer will accept any tender of Products that substantially conforms to the description of the Products set forth in the agreement. Customer shall conduct any incoming acceptance tests as soon as possible upon receipt of the Products or deliverables provided as part of services, but in no event later than 20 days after the date of receipt. Any Products or deliverables not rejected by Customer by written notice to ECM within such period that includes a detailed description of the nonconformance shall be deemed accepted. If Customer demonstrates that such nonconformance existed at the time of delivery of the Products to the carrier or deliverables to Customer, ECM shall promptly deliver substitute Products or deliverables, provided however, that ECM will not be liable for any additional costs, expenses or damages incurred by Customer directly or indirectly as a result of such nonconformance. Customer’s acceptance of Products tendered under the agreement shall be final and irrevocable. No attempted revocation of acceptance will be effective, and Customer will be limited to the remedies specifically provided in the Agreement.
3. Schedule:
ECM shall deliver the Products in accordance with the schedule set forth on the face of the Order (the “Schedule”) or as otherwise agreed between ECM and Customer in writing. If a firm delivery date is agreed, and ECM does not deliver or perform at the agreed time, Customer is entitled to request delivery in writing and fix a final, reasonable time limit for delivery. If delivery or performance is not made within this time limit, Customer is entitled to cancel its Order as its sole and exclusive remedy. No further claims can be made by Customer as a result of the delay.
4. Price:
Prices for Products and Services are exclusive of insurance, transportation costs, VAT, sales tax, other taxes or duties. ECM reserves the right to adjust prices for non-delivered Products in the event of change in delivery date, alterations in rates of exchange, variations in costs of materials, sub-suppliers’ price increases, changes in custom duties, assessment of tariffs, variations in transportation costs, changes in wages, governmental requisitions, or similar conditions over which ECM has no or limited control.
5. Payment:
Unless otherwise agreed by ECM, payment is due on invoice and prepayment is required for all Products and Services. All payments shall be made in US Dollars by bank wire / ACH transfer or direct debit without deduction of any transfer or debit fees in immediately available funds to the bank account set out in the relevant invoice. If credit is extended, ECM may at any time limit or cancel the credit of Customer as to time and amounts and demand payment in cash before delivery. Any payment not made when due shall be subject to interest charges at the maximum rate permitted by law. Customer shall pay all of ECM’s costs and expenses (including reasonable attorneys’ fees) incurred to enforce and preserve ECM’s rights under this section.
6. Security:
In the event payment credit is extended to Customer, for the purpose of securing payment of the price of ECM Products and all other charges payable to ECM hereunder, Customer hereby grants to ECM a security interest (including a purchase money security interest) in and agrees that ECM shall continue to have a security interest (including a purchase money security interest) in, all Products, unless and until ECM receives full payment for such Products. Customer consents and agrees to ECM’s use of this agreement as a security agreement for protecting this security interest, and ECM may perfect its purchase money security interest by filing uniform commercial code financing statements. Upon request by ECM, Customer will cooperate with ECM and execute any necessary documents to perfect ECM’s security interest granted herein. These interests will be deemed satisfied and deemed released by payment in full of the purchase price and all other charges payable hereunder for each Product.
7. Product Information:
Any information, including, but not limited to information on selection of Product, its application or use, Customer product design, weight, dimensions, capacity, or any other technical data in catalogues descriptions, advertisements, etc. and whether made available in writing, orally, electronically, online or via download, shall be considered informative, and shall only be binding if and to the extent explicit reference is made in a quotation or order confirmation. Specific demands from the Customer are only binding if and to the extent they have been confirmed by ECM in writing. Customer is solely responsible for its products and applications that incorporate or use ECM Products. Any Products made available as samples, prototype or similar type identification (whether charged for or not) may only be used for evaluation purposes, may not be resold or be made part of Customer’s products for resale. ECM reserves the right to make alterations to the Products, which do not materially affect the agreed-upon specifications or the Products’ form, fit or function, without notice.
8. Confidential and Proprietary Information
(A) CONFIDENTIAL INFORMATION: Each party (the “Receiving Party”) must keep strictly confidential and must not disclose or use for any purpose other than the fulfillment of its obligations under an Order, any of the other party’s or its Affiliates’ (the “Disclosing Party’s”) Confidential Information. “Confidential Information” means the terms and existence of an Order, any and all technical and commercial information and research, customer and vendor lists, data, financial information, and any other proprietary or non-public information whether or not marked as
“Confidential” as well as any information that is developed based on that information. “Affiliate” means any present or future company that, directly or indirectly, controls, is controlled by or is under common control with a party. In the event of conflict between this Section 8 and an existing non-disclosure agreement between the parties, this Section 8 shall control.
(B) EXCEPTIONS: Confidential Information does not include information that: (a) is public, so long as it did not become public due to a breach of this Order or any obligation of confidentiality; (b) is known by the Receiving Party prior to its disclosure by the Disclosing Party; (c) is independently developed by the Receiving Party; or (d) it was disclosed by a source who does not have an obligation to treat the information as confidential. The Receiving Party must prove the existence of any of the foregoing exceptions. Personally identifiable information remains Confidential Information, even if it qualifies as one of these exceptions. If the Receiving Party is required by law to disclose any Confidential Information, it agrees to provide the Disclosing Party with notice of the request(s) at least ten days prior to disclosure of any Confidential Information.
(C) REPRESENTATIVES: Any person to whom the Receiving Party discloses Confidential Information must be subject to confidentiality obligations similar to the obligations set forth herein. Receiving Party will be liable for any breach of this Order by any person to whom it discloses Disclosing Party’s Confidential Information.
(D) PROTECTION OF CONFIDENTIAL INFORMATION: The Receiving Party will use the same measures to protect Disclosing Party’s Confidential Information as it uses to protect its own information of a similar nature. Receiving Party will use at least a reasonable standard of care. Disclosing Party’s Confidential Information shall remain the property of the Disclosing Party and shall be treated as confidential by the Receiving Party and its representatives and must not, without the written consent of the Disclosing Party, be copied, reproduced, or transferred to third parties or be used for other purposes than those intended when the Confidential Information was made available.
(E) NOTICE OF DISCLOSURE: The Receiving Party will notify the Disclosing Party immediately if it discovers any inadvertent disclosure or unauthorized use of the Disclosing Party’s Confidential Information and will promptly take reasonable steps to prevent any further disclosure or unauthorized use.
(F) DESTRUCTION OF INFORMATION: Upon Disclosing Party’s request, the Receiving Party will promptly return or destroy all Confidential Information (in all forms) of the Disclosing Party and certify in writing that it has destroyed everything.
(G) PUBLICITY: Unless otherwise agreed by ECM, Customer will not use ECM’s name or trademarks in any press release, media statement, annual report, product packaging, stationary, print literature, advertising, websites, or other public communication without ECM’s prior written consent. Additionally, neither party will use the name or trademarks of the other party or its Affiliates in a manner that disparages or portrays the other party, or its Affiliates, or their products or services in a false, competitively adverse or poor light.
9. Warranties / Disclaimers:
(A) Product and Services Warranty. ECM warrants that Products shall be delivered free of defects in material and workmanship and that Services shall be free of defects in workmanship. The Warranty Remedy Period for Products shall end twelve (12) months after date of shipment. The Warranty Remedy Period for new spare parts shall end twelve (12) months after date of shipment. If the Order includes the sale of refurbished or repaired parts, the Warranty Remedy Period for such parts shall end ninety (90) days after date of shipment. The Warranty Remedy Period for Services shall end ninety (90) days after the date of completion of Services;
(B) Product and Services Remedy. If a nonconformity to the foregoing warranty is discovered in the Product or Services during the applicable Warranty Remedy Period, as specified above, under normal and proper use and provided the Product has been properly stored, installed, operated and maintained and written notice of such nonconformity is provided to ECM promptly after such discovery and within the applicable Warranty Remedy Period, ECM shall, at its option, either (i) repair or replace the nonconforming portion of the Product or re-perform the nonconforming Services or (ii) refund the portion of the price applicable to the nonconforming portion of Product or Services. If any portion of the Product or Services so repaired, replaced or re-performed fails to conform to the foregoing warranty, and written notice of such nonconformity is provided to ECM promptly after discovery and within the original Warranty Remedy Period applicable to such Product or Services or thirty (30) days from completion of such repair, replacement or re-performance, whichever is later, ECM will repair or replace such nonconforming Product or re-perform the nonconforming Services. The original Warranty Remedy Period shall not otherwise be extended;
(C) Exceptions. ECM shall not be responsible for providing temporary power, removal, installation, reimbursement for labor costs or working access to the nonconforming Product, including disassembly and re-assembly of non- ECM supplied Product, or for providing transportation to or from any repair facility, or for any other expenses incurred in connection with the repair or replacement, all of which shall be at Customer’s risk and expense. ECM shall have no obligation hereunder with respect to any Product which (i) has been improperly repaired or altered, including performance of any service on the Product by unauthorized personnel, any; (ii) has been subjected to misuse, negligence or accident, including without limitation, any disassembly of the motor or failure to maintain the grounding rings; (iii) has been used in a manner contrary to ECM’s instructions; (iv) is comprised of materials provided by or a design specified by Customer; or (v) has failed as a result of ordinary wear and tear. Product supplied by ECM but manufactured by others is warranted only to the extent of the manufacturer’s warranty, and only the remedies, if any, provided by the manufacturer will be allowed;
(D) Software Warranty and Remedies. ECM warrants that, except as specified below, the Software will, when properly installed, execute in accordance with ECM’s published specifications. If a nonconformity to the foregoing warranty is discovered during the period ending one (1) year after the date of shipment and written notice of such nonconformity is provided to ECM promptly after such discovery and within that period, including a description of the nonconformity and complete information about the manner of its discovery, ECM shall correct the nonconformity by, at its option, either (i) modifying or making available to the Customer instructions for modifying the Software; or (ii) making available at ECM’s facility necessary corrected or replacement programs. ECM shall have no obligation with respect to any nonconformities resulting from (i) unauthorized modification of the Software or (ii) Customer-supplied software or interfacing. ECM does not warrant that the functions contained in the software will operate in combinations which may be selected for use by the Customer, or that the software products are free from errors in the nature of what is commonly categorized by the computer industry as “bugs”; and
(E) THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF QUALITY AND PERFORMANCE, WHETHER WRITTEN, ORAL OR IMPLIED, AND ALL OTHER WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USAGE OF TRADE ARE HEREBY DISCLAIMED. THE REMEDIES
STATED HEREIN CONSTITUTE PURCHASER’S EXCLUSIVE REMEDIES AND ECM’S ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY.
10. Product Liability:
ECM shall not be liable for any damage to products manufactured by Customer or to products of which Customer’s products form a part. If ECM incurs liability towards any third party for claims arising from third party products, Customer shall indemnify, defend, and hold ECM harmless from and against such liability. Customer shall indemnify, defend and hold ECM harmless from and against all claims arising from damage resulting from the use or operation of the Products or deliverables provided as part of Services because of the improper installation, repair, maintenance or operation of the Products or such deliverables by Customer, the failure of Customer to adequately train personnel in the operation of the Products or such deliverables, or Customer’s failure to comply with applicable laws or regulations or otherwise. If a claim for damage as described in this clause is lodged by a third party against either ECM or Customer, the respondent party shall immediately inform the other party thereof in writing. Customer shall be obliged to let itself be summoned to the court or arbitral tribunal examining claims for damages lodged against ECM on the basis of damage allegedly caused by the Product or deliverables.
11. Limitation of Liability:
ECM SHALL NOT BE LIABLE TO CUSTOMER FOR ANY OF THE FOLLOWING TYPES OF LOSS OR DAMAGE ARISING UNDER OR IN RELATION TO THIS AGREEMENT: 1) ANY LOSS OF PROFITS, BUSINESS, USE, CONTRACTS, ANTICIPATED SAVINGS, GOODWILL, OR REVENUE; 2) ANY LOSS OR CORRUPTION OF DATA; OR 3) ANY INDIRECT, SPECIAL, CONTINGENT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSS OR DAMAGE WHATSOEVER; EVEN IF ECM WAS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND WHETHER ARISING OUT OF BREACH OF WARRANTY, TORT, STATUTE, DELAY, FAULTY PRODUCTS OR SERVICE, PRODUCT LIABILITY, RECALL OR OTHERWISE, AND EVEN IF ANY EXPRESS WARRANTIES FAILS ITS ESSENTIAL PURPOSE. ECM’S TOTAL LIABILITY ARISING UNDER OR IN RELATION TO AN AGREEMENT GOVERNED BY THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT INVOICED FOR THE PRODUCT OR SERVICES BY ECM TO CUSTOMER THEREUNDER. CUSTOMER ACKNOWLEDGES AND AGREES, THAT ECM HAS SET ITS PRICES AND ENTERED INTO THE TRANSACTION IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, AND THAT THE SAME REFLECT A RISK ALLOCATION BETWEEN THE PARTIES FORMING AN ESSENTIAL BASIS FOR THE BARGAIN BETWEEN THEM.
12. ECM Intellectual Property:
Customer agrees that nothing in this Order, nor in the disclosure of ECM Confidential Information, will convey to Customer or any third party any right, title or interest in or to any proprietary or intellectual property right of ECM, including trade secrets, inventions and patent rights. Customer shall respect all such rights and shall not make, use or sell any materials reflecting any such rights without ECM’s express written permission. Unless otherwise agreed between ECM and Customer, Customer obtains no rights in form of license, patent, copyright, trademark, or other proprietary right connected to the Products. Any invention or other information, whether patentable or not, developed by ECM in the performance of this Agreement shall remain the property of ECM. In the event that Customer acquires any rights in or to any intellectual property rights or improvement covering or embodied in the Products or any derivatives thereof, by operation of law or otherwise, Customer shall assign, and hereby assigns, all right, title and interest in such intellectual property rights to ECM. In any event, ECM shall have the right, and Customer grants ECM such right, to integrate and use all associated intellectual property rights in ECM’s Products or any derivatives thereof, without restriction; provided that ECM acknowledges that nothing herein is deemed to grant ECM any rights to Customer intellectual property rights that are not related to the Products. Customer understands and acknowledges that any and all works of authorship created by ECM in connection with this Agreement, whether paid for in whole or in part by Customer, are not works-made-for-hire and shall remain the property of ECM unless separately agreed to in writing by Customer and ECM. Except as specifically set forth herein, ECM reserves all other rights with respect to its intellectual property.
13. Compliance:
Customer warrants that it is and will remain in full compliance with all applicable laws, regulations, codes, sanctions, orders, rules and ordinances of federal, state, provincial and municipal government bodies and agencies (“Laws”) and Customer has not and will not engage in any activity, practice, or conduct that would constitute an offense under those Laws. Without limiting the generality of the foregoing, Customer also warrants that it is and will remain in full compliance with all applicable Laws relating to anti-bribery and anti-corruption in the jurisdictions in which it operates. Customer acknowledges that it has in place procedures adequate to ensure compliance with these Laws by its officers, employees, agents and any other third party or person associated with Customer. In relation to the Order, Customer further agrees that it shall not make, offer, or promise to make any payment or transfer anything of value, directly or indirectly, to any third party knowing, or suspecting, that such third party will give the payment, or a portion of it, to any entity or individual for any improper benefit. ECM shall be entitled to cancel any delivery, Order or terminate an agreement without incurring any liability if ECM has reason to believe that Customer acts in a manner contrary to applicable Laws, including without limitation any export or import laws, the Foreign Corrupt Practices Act and other laws regarding bribery and corruption.
14. Indemnification:
ECM, at its election, shall defend any suit or proceeding brought against Customer as far as the same is based on a claim that any Product or part thereof delivered by ECM, constitutes an infringement of any third party intellectual property rights in the country of delivery, if notified promptly in writing and given sole authority, information and assistance for the defense of the same and provided such alleged infringement is not the result of the design or other special requirements specified by Customer or the application or use to which such Product is put to use by Customer or others. If ECM elects to defend such suit or proceeding, ECM will pay all damages and costs awarded under such suit or proceeding against Customer. If such Product or part thereof is held to infringe any such third party intellectual property rights and use thereof is enjoined, ECM will, at its option, (a) procure Customer the right to continue use of such Product, (b) replace same with non-infringing Product(s) or parts thereof, (c) modify the same so that it becomes non-infringing, or (d) remove said Product or part thereof and refund the purchase price. The foregoing states the entire liability of ECM to Customer for infringement of intellectual property rights.
15. Import and Export Controls:
Customer warrants that it will comply with the Export Administration Regulations of the U.S. Department of Commerce and any other applicable laws and regulations governing exports in effect from time to time, including without limitation US laws and regulations prohibiting the export of product to denied parties and embargoed countries and that it will indemnify ECM for any failure by Customer or its customers to do so. Customer agrees to cooperate with ECM in order to obtain export licenses or exemptions therefrom.
16. Force Majeure:
ECM is entitled to cancel orders or suspend delivery of Products and shall not be liable for any non-delivery, faulty or delayed delivery, which partly or wholly is caused by circumstances beyond ECM’s reasonable control, including, but not limited to, riots, civil unrest, war, terrorism, fire, insurrection, pandemic, government regulation, requisition, seizure, embargo or defects or delays in deliveries by sub-suppliers, strikes, lockouts, slowdowns or shut downs, lack of transportation, scarcity of materials, supply chain issues, and insufficient supplies of energy (“Force Majeure”). Any of Customer’s contractual rights are suspended or become void in any such Force Majeure circumstances referred to in this clause. Customer is not entitled to any kind of damages or to make a claim whatsoever in case of cancellation or delayed delivery due to such circumstances.
17. Data Protection:
(A) The parties agree that the protection of personal data is very important. If Customer discloses personal data to ECM, ECM shall comply with all applicable data protection laws and regulations. Customer shall comply with all applicable data protection laws and regulations in respect of any personal data it receives from ECM in the course of receiving the Products or Services;
(B) The parties agree that neither will withhold or delay its consent to any changes to this clause which are required to be made in order to comply with applicable data protection laws and regulations and/or with guidelines and order from any competent supervisory authority, and their application to the Products or Services from time to time, and agrees to implement any such changes at no additional cost to the other party;
(C) The parties acknowledge that the processing of personal data in accordance with this purchase order may require the conclusion of additional data processing agreements or additional data protection agreements. If and to the extent such additional data processing agreements or additional data protection agreements are not initially concluded as part of the purchase order, the parties shall, and shall ensure that their relevant affiliates or subcontractors shall, upon the other’s request promptly enter into any such agreement with an affiliate, as designated by the other party and as required by mandatory law or a competent data protection or other competent authority.
18. Miscellaneous:
All Orders will be governed by and subject to the laws of the state of Massachusetts without regard to conflict of laws principles. The 1980 United Nations Convention on Contracts for the International Sale of Goods or any version thereafter shall not apply to the Order. No course of performance, course of dealing, or usage of trade shall be applicable to the Order. Any legal action arising under an Order shall be resolved exclusively in the state or federal courts located in Middlesex County, Massachusetts, as applicable, and both parties hereby irrevocably consent to the exclusive jurisdiction of such courts for such actions. The word “including” and words of similar import as used in an Order shall mean “including, without limitation.” Unless otherwise stated on the face of an Order, all invoices and payment obligations will be in United States Dollars. All representations, warranties, indemnities, confidentiality obligations, rights and remedies of ECM and any other provision hereof that by its express terms or by implication is to survive will survive the termination or completion of an Order. Neither party may assign or transfer any of its obligations under this Agreement without the prior written consent of the other party, provided that ECM may assign its rights and obligations under an Order in its entirety to a successor in interest in the event of a change of control. Customer is an independent contractor for all purposes hereof, and nothing herein shall be deemed to constitute a partnership or joint venture between the parties. The contract evidenced by the Order is not intended to be one of hiring under the provisions of any workers’ compensation or other laws and shall not be so construed. Each provision of the Order is severable and if any provision is found to be invalid, illegal or unenforceable for any reason, the rest of the Order and Terms will remain valid and enforceable. ECM’s rights and remedies under the Order and these Terms are cumulative and in addition to all other rights and remedies that may be available to ECM at law and in equity. ECM’s failure to enforce any provision of the Order or these Terms will not prevent ECM from later enforcing such provision. If ECM waives Customer’s breach of any provision of the Order and these Terms, such waiver will not be deemed a waiver of a later breach of such provision. The Order and these Terms bind the parties, as well as their legal representatives, successors and permitted assigns. Any amendments to these Terms shall be in writing and either signed by both parties or agreed to by both parties through the electronic system used by ECM. Unless other written agreements exist between the parties, the Order and these related Terms constitute the entire agreement of the parties concerning the subject matter of the Order and supersede any prior or contemporaneous agreements or understandings between the parties concerning the same subject matter.
