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Terms and Conditions

  1. Sale of Goods and Services. Seller hereby agrees to sell and Buyer hereby agrees to purchase the goods and services described in the Quotation to which these Terms and Conditions are attached (the “Quotation”) (the “Products”), at the price set forth in the Quotation (the “Purchase Price”) and upon the terms and conditions set forth herein.
  2. Acceptance. Any of the following acts by Buyer shall constitute unqualified acceptance of the Quotation for the sale of the Products upon all of the terms and conditions herein:
    • Written acknowledgement or acceptance of this Quotation is received by Seller
    • Acceptance of delivery of any of the goods or services to be sold and delivered hereunder
    • Receipt of any payment hereunder
    • Any other conduct by Buyer which recognizes the existence of a contract pertaining to the subject matter hereof.

      Upon acceptance of the Quotation, the Quotation shall become a contract which is expressly limited to the exact terms contained herein. Any provisions printed or otherwise contained in any acknowledgement, purchase order or other document which is inconsistent with or in addition to the terms and conditions herein stated, and any alteration of the contract, shall have no force or effect and shall not constitute a part of this contract.

  3. Purchase Price and Terms of Payment. The Purchase Price for the Products shall be as set forth the Quotation. For Systems Orders, upon acceptance of this Quotation, Buyer shall pay to Seller a non-refundable deposit in the amount equal to fifty (50%) percent of the Purchase Price. The Buyer shall pay to the Seller on or before the day which is sixty (60) days from the date of acceptance of the Quotation, an additional non-refundable amount which shall be equal to twenty-five (25%) percent of the Purchase Price, which shall be applied to the Purchase Price. The entire balance of the Purchase Price, together with any additional costs or expenses described herein, shall be paid to Seller upon Seller’s completion of the Products and satisfactory inspection of the Products. No Products shall be shipped or delivered to Buyer until all payments due to Seller hereunder have been received by Seller. All payments shall be made by wire transfer in accordance with instructions provided to Buyer by the Seller. For non-Systems Orders, payment terms shall be Net 30 days upon approval of credit references.
  4. Taxes. The Purchase Price is exclusive of all local, State and federal sales, revenue, excise or other taxes applicable to the sale of the Products and any such taxes shall be added to and become part of the Purchase Price and shall be paid by the Buyer.
  5. Inspection. Buyer or its designee shall have the right to inspect and test the Products, at reasonable times, at the Seller’s premises, after the Seller has notified the Buyer that the Products are complete and ready to be shipped. Buyer’s inspection shall be conducted in such manner as shall not hinder or delay Seller’s performance hereunder and shall not interfere with the operation of Seller’s business.
  6. Non-Conforming Goods. If any of the Products made by Seller do not conform to the written specifications accepted by Seller, or prove to be defective, Buyer shall notify Seller, in writing, immediately, stating a full description of the particulars in support of Buyer’s claim. Seller, at its option, will either replace or correct the defect or non-conforming Products within a reasonable time based upon the extent of the repairs or replacements required.
  7. Shipment. All prices are F.O.B. Seller’s premises. Method and route of shipment are at Seller’s discretion unless the Buyer provides explicit instructions in writing. All additional shipping costs incurred by Seller due to Buyer’s special instructions shall be paid by the Buyer.
  8. Delivery. Seller will not be liable for any delay in the performance of orders or contracts, or in the delivery or shipment of Products, for any damages suffered by Buyer by reason of such delay, if such delay is, directly or indirectly, caused by, or in any manner arises from, fires, floods, accidents, civil unrest, acts of God, war, governmental interference or embargoes, strikes, labor difficulties, shortage of labor, fuel, power, materials or supplies, failure of usual sources of supply, transportation delays, or any other cause or causes (whether or not similar in nature to any of these hereinbefore specified) beyond its control. Seller shall have the additional right, in the event of the happening of any of the above occurrences, at its option, to cancel this contract or any part thereof without any resulting liability. All deliveries shall be made by Seller and accepted by Buyer within the continental United States. Any delivery not in dispute shall be paid for regardless of other controversies relating to other delivered or undelivered merchandise. The Products shall be identified to the contract and title and risk of loss shall pass to the Buyer when the Products are placed in the hands of the carrier.
  9. Insurance. The Buyer at its own cost shall insure the Products for the full replacement value thereof effective prior to when the Seller places the Products in the hands of the carrier.
  10. Packing. The Products shall be packed by Seller, at no additional charge to Buyer, in accordance with standard commercial practices. If the Buyer requests special packing, Buyer shall pay any additional cost incurred by Seller due to such special instructions.
  11. Seller’s Right of Possession.
    • A. Seller shall have the right, in addition to all other rights and remedies it may have under this contract or pursuant to applicable law, at any time, due to Buyer’s failure or breach of any covenant, agreement or obligation set forth herein, or the failure by Buyer to pay any amount due to the Seller on or before its due date, to stop any and all activities in connection with the Products, to withhold or decline to make shipments, in whole or in part, and to recall Products in transit, retake same, and repossess all Products which may be stored with Seller for Buyer’s account, without the necessity of taking any other proceedings, and Buyer consents that all such Products recalled, retaken, possessed or repossessed shall become Seller’s absolute property. The foregoing shall not be construed as limiting, in any manner, any of the rights or remedies available to Seller because of any default of Buyer under the Uniform Commercial Code as in force and effect in the Commonwealth of Massachusetts on the date of the signing of this contract.
    • B. Any materials, including without limitation, tools, Parts or equipment (including parts or equipment specifically purchased for the Products), and supplies whether finished, installed as part of the Products or in process of completion shall remain the property of the Seller until paid for in full, and the Buyer hereby grants to the Seller a security interest in the Products delivered to Buyer but not paid for in full and the Buyer shall execute UCC Financing Statements upon the Seller’s request therefore. The Buyer Irrevocably grants to the Seller a power of attorney, coupled with an interest, to execute and to record in behalf of the Buyer, UCC Financing Statements for any Products delivered to the Buyer but not paid for in full, to perfect the security interest.
  12. Special Conditions. All orders or contracts arc accepted by the Seller with the understanding that they are subject to Seller’s ability to obtain the necessary materials, components parts and all orders or contracts as well as shipments applicable thereto are subject to government regulations, orders, directives, and restrictions that may be in effect from time to time.
  13. Warranties.
    • 1. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR THE FITNESS FOR ANY PARTICULAR PURPOSE, OR OTHERWISE.
    • 2. THE SELLER MAKES NO WARRANTY AND SHALL HAVE NO LIABILITY FOR ANY DEFECT OR PROBLEM ARISING FROM:
      • a. alterations or modifications of the Product by Buyer;
      • b. the malfunction of Buyer’s equipment or other products not supplied by Seller;
      • c. failure of Buyer to follow Seller’s instructions concerning use of the Products; or
      • d. Any abuse, neglect or misuse of the Products.
    • 3. The Seller shall assign and deliver to Buyer any warranties Seller receives from manufacturers or providers of component parts installed as part of the Products. The Seller disclaims and Buyer agrees that Seller shall have no liability for any default or non-conformity of any such component parts. The exclusive remedies for breach of any Warranty hereunder, or for any claim against Seller arising out of or in connection with this Agreement shall be those specifically set forth herein. BUYER EXPRESSLY AGREES THAT SELLER SHALL HAVE NO LIABILITY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES.
  14. Claims. Any claim for defective Products, delay or failure in shipment or delivery or for any other cause must be made in writing, delivered in accordance with the notice provisions contained in Section 21 below, and adequately describing the particulars of the claim. If any such claim is not received by the Seller within ten (10) days of the Buyer’s receipt of the Products, then such claim shall be deemed waived and released by Buyer.
  15. Patents. Buyer shall hold Seller harmless from, and release and not make claim or suit against Seller because of any suits, claims, losses, or other liability made against, or suffered by, Buyer arising from any claim of, or infringement of, patent, copyright, trademark, or other proprietary right, at common law, or claim of unfair trade or of unfair competition, resulting from, or occasioned by, Buyer’s use, possession, sale, or delivery of the Products sold to Buyer by Seller.
  16. Limitation on Action. No action arising out of the sale of the Products under this Agreement may be brought by either party more than one (1) years after the cause of action arises, except that an action for non-payment may be brought within two (2) years of the date of the last payment made hereunder.
  17. Invoicing. Seller shall invoice Buyer in a manner consistent with the payment schedule contained herein and Buyer shall pay such invoice within the time set forth herein. If payment in full is not received by the Seller by such due dates, set forth in Schedule 1 or 3, then the Buyer shall pay to Seller, interest on the unpaid portion of such invoice at the rate of 1.5% per month until paid in full. Payment shall be made in U.S. Dollars at the Seller’s principal place of business. If there is a dispute as to any amount charged by Seller hereunder, Buyer shall notify Seller of such dispute on or before the due date of such invoice and shall deposit the portion of the amount of the invoice being disputed with an escrow agent approved by both the Buyer and Seller, which amount shall be held in escrow until final resolution of the parties or by Court Order.
  18. Confidentiality. The Buyer hereto acknowledges and agrees that it may acquire, from the Seller, as a result of the their working relationship, substantial and significant information relative to the manner in which the Seller conducts its business, including, without limitation, financial information, trade secrets, technical information, information pertaining to Seller’s goods and services, manuals, specific customer and supplier needs and requirements, research, processes and engineering each has established, created or developed for its specialized business activities, services and products (collectively the “Confidential Information”). Buyer acknowledges and agrees that the Confidential Information of the Seller is special and unique to Seller, has been developed by Seller, and is worthy of protection from the public domain. Buyer agrees that neither its officers, directors, employees nor agents, during or after the termination of this Agreement, shall use, duplicate, copy, disseminate, reveal, publish or disclose all or any part of the Confidential Information to ,my person, firm, corporation or other entity for any reason or purpose other than the performance of this Agreement.
  19. Cancellation. Once an order has been placed with the Seller and accepted by the Seller, it cannot be cancelled by the Buyer except with the written consent of the Seller and upon terms that will indemnify Seller from all costs, expenses and losses incurred by Seller in connection with this Agreement. The Seller shall have the right to cancel or terminate this Agreement or the delivery of Products hereunder upon the Buyer’s insolvency or inability to meet its obligations as they become due, filing of a voluntary or involuntary bankruptcy, appointment of a receiver for Buyer, failure to pay to the Seller any amounts due by its due date(s), breach of this contract by Buyer or such other causes as set forth herein. Notwithstanding the above, if the Buyer wishes to caned the order and gives written notice thereof prior to the sixtieth (60th) day after the acceptance of the Quotation, the Seller shall retain the deposit paid and all materials, supplies and work product performed to such date. If the Buyer wishes to cancel the order and gives written notice therefore at any time on or after such sixtieth (60th) days, the Buyer shall pay (if not already paid) and the Seller shall retain seventy-five (75%) percent of the Purchase Price and all materials, supplies and work product performed to such date; provided, however, that at the time Buyer give such notice of cancellation, no breach by the Buyer in the performance of any covenant, agreement or obligation of the Buyer set forth herein, or the failure by the Buyer to pay any amount due to the Seller on or before its due date exists. Upon such cancellation and the payment to the Seller of the amounts stated above, this contract shall be terminated and neither party shall have any further obligation to the other.
  20. Modification. This Agreement may be amended or modified only by a written consent signed by both the Buyer and the Seller.
  21. Notices. All notices or communication required or permitted hereunder shall be in writing. Any notice, demand or other communications given under this Agreement shall be deemed to be given if given in writing (including e-mail, facsimile, or similar transmission) addressed if to Seller, at 207 Bowles Road, Agawam, MA 01001 and if to Buyer at the address listed in Schedule I (or at such other address as the addressee shall have specified by notice actually received by the addressor) and if either (a) actually delivered in fully legible form, to such address (evidenced in the case of a facsimile by receipt of the successful delivery acknowledgement) or (b) in the case of a letter, five days shall have elapsed after the same shall have been deposited in the United States mails, with first class postage prepaid and registered or certified.
  22. Nonwaiver. No delay or failure by either party to exercise any right under this Agreement shall constitute a waiver of that or any other right, unless otherwise expressly provided for herein or in such waiver. No waiver of any term covenant or provision of this Agreement shall be effective unless given in writing.
  23. Assignment. Neither party shall have the right to assign the rights or obligations of this Agreement without the written consent of the other party. However, the Seller shall have the light to delegate or subcontract any work called for in connection with the Seller producing and delivering the Products.
  24. Cost and Attorney Fees. In the event of the failure or breach by the Buyer in the performance of any covenant, agreement or obligation of the Buyer set forth herein, or the failure by the Buyer to pay any amount due to the Seller on or before its due date, then the Buyer shall pay to the Seller, all of the costs, expenses and losses (including attorney’s fees) incurred by Seller in the enforcement of Seller’s rights under this Agreement.
  25. Entire Agreement. This Agreement, including Schedule I, constitutes the entire agreement between the parties with respect to the subject matter hereof and these terms and conditions shall supersede any provisions, terms or conditions contained in any other prior or contemporaneous agreement, proposal, representation or warranty, whether in writing or verbal. The rights and obligations of the parties shall be governed exclusively by the provisions, terms and conditions set forth herein.
  26. Binding Effect. This Agreement shall bind and inure to the benefit of the parties hereto and their respective successors and assigns, but shall not be assignable by any party without the prior written consent of the other parties.
  27. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but which together constitute one and the same instrument.
  28. Headings. The headings of the Sections, paragraphs and subparagraphs of this Agreement are solely for convenience and reference and shall not limit or otherwise affect the meaning of any of the terms or provisions of this Agreement.
  29. Severability. If for any reason any provision of this Agreement, including without limitation, any provision relating to the termination of this Agreement, shall be deemed, by a court of competent jurisdiction, to be legally invalid or unenforceable in any jurisdiction to which it applies, the validity of the remainder of the Agreement shall not be affected and that provision shall be deemed modified to the minimum extent necessary to make that provision consistent with applicable law, and in its modified form, that provision shall then be enforceable.
  30. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. The Court of the Commonwealth of Massachusetts shall have exclusive jurisdiction in any action brought to enforce the provisions hereof and each of the parties hereto consents to jurisdiction of the courts in the Commonwealth of Massachusetts over each party.