The products ("Products") detailed on invoices of Energy Choice, Inc., a Delaware corporation ("Energy Choice"), are sold on the terms and conditions set forth on the front of the invoice and on the terms and conditions set forth herein, which terms and conditions are incorporated by reference into the invoice as though an original part thereof and, as so incorporated, constitute the entire agreement ("Agreement") between Energy Choice and the customer identified on the front of the subject invoice ("Customer"). The within terms and conditions take precedence over any Customer terms and conditions. Neither Energy Choice’s commencement of performance or delivery of the Products constitutes an acceptance of Customer's terms or conditions. Any additional or conflicting terms on Customer's Purchase Order or acknowledgment are hereby rejected.
Payment terms are 100% payment in advance, unless Energy Choice has approved the Customer’s application for trade credit. If so approved, payment terms are net 30 days from invoice date. Extension of trade credit is subject to Energy Choice's approval, which is in Energy Choice's sole and absolute discretion, and may be revoked at any time in Energy Choice's sole discretion. Orders from a Customer with accounts that are 30 days overdue will be accepted only on a payment in advance basis until credit is reestablished to Energy Choice's satisfaction. Energy Choice may cancel or delay future deliveries of Product in the event that Customer fails to make prompt payment or if, in Energy Choice's sole determination, the financial condition of Customer or other grounds for insecurity warrant such action. Customer grants to Energy Choice a purchase money security interest in all of the Products detailed on the front of the invoice delivered to Customer, and the proceeds thereof. In the event of a default, Energy Choice has all rights of a secured party under the Massachusetts Uniform Commercial Code. Energy Choice may execute and file a financing statement and other security instruments to perfect its security interest. All published prices are subject to change without notice. All payments are to be made in United States Dollars.
In the event that Customer fails to make timely payment, or delivers payment by check that is ultimately returned unpaid, Energy Choice will incur additional costs, arising from servicing the account and loss of use of the amounts due, that are difficult or impossible to determine. Therefore, invoices not paid within 30 days will be subject to a monthly finance charge calculated at the periodic rate of 1.5% of the unpaid balance from time to time outstanding. All returned checks are subject to a $20.00 per check service fee.
All prices for Products are exclusive of all taxes. Such taxes, if applicable, shall be wholly at the expense of Customer, and shall be added to the Customer’s order subtotal, and shall be collected accordingly by Energy Choice.
Energy Choice will diligently proceed to fill Customer orders for Products in a timely manner, except for delays occasioned by factors that are beyond Energy Choice's control, not reasonably foreseeable, or initiated by Customer. Items not shipped are placed on back order, and will be shipped as soon as available subject to the price in effect at time of shipment. Customer must report all discrepancies in Product deliveries, shortages, or erroneous charges to Energy Choice within 10 days of receipt, otherwise the Products and amounts charged are deemed accepted. Use of the Products constitutes acceptance.
Shipping/freight is F.O.B. at an Energy Choice warehouse in Massachusetts, unless otherwise indicated, plus charges for any special packaging or handling required by Customer. Risk of loss passes to Customer upon delivery to the carrier. In the absence of specific instructions, Energy Choice may select the carrier; provided, however, the carrier is not an agent of Energy Choice. All delivery dates are Energy Choice's good faith estimate thereof and are subject to change. Energy Choice shall have the right to ship all or part of the Products whenever the same shall be ready for shipment.
Cancellations of orders of Products that are not regularly stocked by Energy Choice will be subject to a restocking fee equal to 15% of the invoice price for such Products.
Items may be returned for credit only with Energy Choice's prior written approval. All returns are subject to a cancellation and restocking charge plus payment of all freight charges. Special order items may not be returned.
Energy Choice will, to the extent permissible, pass- through to Customer all original equipment manufacturer warranties, if any, applicable to the Products. In the event that any of the Products are defective in workmanship or material, Energy Choice will, at its election and in its sole discretion, attempt to obtain from the manufacturer thereof, in accordance with the customary practices of the manufacturer, the repair or replacement of the subject Product. However, Customer is ultimately responsible for pursuing any remedy that Customer may have with respect to the breach of any manufacturer warranty.
Energy Choice is a distributor/reseller of the Products of others; therefore, all Products are sold subject solely to the warranties provided by their respective manufacturers. ENERGY CHOICE MAKES NO WARRANTY AS TO THE PRODUCTS, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ENERGY CHOICE EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ENERGY CHOICE does not guarantee or warrant the suitability of the Products for specific applications. Customer is solely responsible for determining whether the Products are appropriate for Customer's specific requirements. If any model or sample was shown to Customer, the model or sample was used merely to illustrate the general type and quality of goods and not to represent that the goods necessarily conform to the model or sample.
IN NO EVENT WILL ENERGY CHOICE, OR ITS EMPLOYEES, AGENTS, OR OWNERS, BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT OR RESULTING FROM ANY BREACH OF WARRANTY, OR UNDER ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM LOST PROFITS, SAVINGS OR DATA, DOWNTIME, LOSS OF GOODWILL, OR DAMAGE TO OR REPLACEMENT OF EQUIPMENT OR PROPERTY. ENERGY CHOICE IS NOT RESPONSIBLE FOR CLAIMS BY THIRD PARTIES. IN NO EVENT WILL ENERGY CHOICE'S LIABILITY FOR DAMAGES, IF ANY, EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE PRODUCTS.
Customer assumes full and complete responsibility for all uses and/or applications of the Products, and agrees to indemnify, defend, and hold Energy Choice, its employees, agents, and owners harmless from and against any and all liability, damages, losses, claims, demands, actions, causes of action, costs, including attorneys' fees, and expenses, resulting from death or injury to any person, damage to any property, or any other alleged damages resulting from aforementioned uses and/or application of the Products.
Tooling patterns and associated equipment remain the property of Energy Choice unless Customer is invoiced for and pays the entire cost of tooling patterns and associated equipment in full. The use safekeeping and maintenance of the Customer's tools patterns and associated equipment which are in Energy Choice's possession shall be at the Customer's risk. If, after reasonable notice the Customer fails to remove any tools patterns and associated equipment which are in Energy Choice's possession, Energy Choice shall be entitled to destroy or otherwise dispose of the tools patterns and associated equipment without payment or compensation to Customer.
All legal relations between Energy Choice and Customer shall be subject to the substantive laws of the Commonwealth of Massachusetts, USA, which is applicable to the legal relations between domestic parties in addition to this Agreement. The provisions of the Convention on Contracts for the International Sale of Goods (CISG) of April 11, 1980 shall be excluded. All disputes or claims arising in connection with the sale of the Products shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be Boston, Massachusetts, USA. In any action to enforce or interpret this Agreement, the prevailing party is entitled to recover, as an element of its costs, and not as damages, reasonable attorneys' fees to be fixed by the arbitrator. If any provision of this Agreement is held to be invalid or unenforceable, it shall be enforced to the extent permissible and the remainder of the Agreement shall remain in effect. Energy Choice's failure to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights.
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