Unless expressly stated thereon, the following terms and conditions (this “Agreement”) are incorporated into, govern, and control all quotations and invoices presented by Ecomass Technologies (“ET”) to the individual or entity receiving such invoice or quotation (the “Buyer”) with respect to any Ecomass compounds, molded parts, or any other goods or services provided by ET (collectively, the “Products”).

  1. Quotations.  Quotations shall be valid and binding upon ET for 30 calendar days from the date presented by ET.  If ET has relied upon Buyer’s samples, blueprints, and/or drawings, any subsequent modification of such materials shall, in ET’s discretion, render the quotation invalid.  No changes to or modifications of quotations shall be binding unless signed by an officer of ET.  In the event of a conflict between the terms of ET’s quotation and Buyer’s purchase order, the terms of ET’s quotation shall govern and control.
  2. Taxes.  Quoted prices exclude any applicable sales or use taxes.  Buyer agrees to reimburse ET for any federal, state, or local sales or use taxes, excise taxes or charges, and any other taxes and fees levied on Products sold to Buyer whether or not such taxes are deemed applicable at the time of sale.  When applicable, Buyer will provide to ET sales and/or use tax exemption certificates, or resale certificates, for Products purchased from ET.
  3. Credit & Solvency of Buyer.  All quotations and any subsequent contracts are subject to ET’s approval of Buyer’s financial condition.  If, in ET’s opinion, Buyer’s financial condition is unsatisfactory, Buyer’s account is delinquent, delivery is delayed as a result of Buyer’s financial condition, or Buyer becomes insolvent, ET may, in its sole discretion, (i) alter or suspend credit, (ii) refuse to ship and/or cancel unfilled orders, and/or (iii) demand payment of all outstanding amounts payable, whether or not due, require payment in advance for future orders, and /or ship C.O.D.
  4. Price & Terms of Payment.  Invoices for Products are due and payable to ET within 30 days from the date of shipment of Products to Buyer.  If Buyer fails to pay ET any amounts owing to ET when due, such amounts shall accrue interest at the rate of 1.5% per month until such amounts are paidET may increase the pricing set forth by an amount equal to any fuel surcharges or taxes imposed upon ET by carriers in connection with the shipment of Product(s) described on the invoice.  Buyer agrees that any unpaid account for invoiced Products shall constitute a lien on any molds, tools, Products, or any other property of Buyer in ET’s possession and that ET may take any actions necessary to perfect and enforce its lien.
  5. Packaging & Delivery.  Products will be packaged in bulk, shipped FOB ET’s plant, and delivered by a carrier selected by ET.  When approved by ET, alternate shipping arrangements may be made at Buyer’s expense.  Any excess not exceeding 10% of the quantity indicated on Buyer’s purchase order shall be accepted and paid for by Buyer at the applicable price specified in the quotation.  Delivery schedules on quotations can not be changed by Buyer without ET’s written consent.
  6. Title & Risk of Loss.  ET will make deliveries as near as possible to Buyer’s requested delivery date(s).  Title to Products and the risk of loss for Products shall pass to Buyer upon ET’s delivery of Products to the carrier.  Any claims for breakage, damage, or loss shall be made by Buyer directly to the carrier and ET shall be held harmless therefrom.  ET does not assume any responsibility for any damages directly or indirectly resulting from delays in delivery.  Buyer assumes all risks and liabilities arising out of unloading, discharge, storage, handling, and use of Products, or compliance or non-compliance with federal, state, municipal, or local laws and regulations governing or controlling such activity, except to the extent attributable to ET’s gross negligence or willful misconduct.  Except for the failure of the Products to meet the express warranties set forth in Section 14, Buyer will indemnify, defend, and hold ET harmless from all costs, expenses, damages, judgments or other loss, including costs (investigation, litigation, and reasonable attorney’s fees) arising out of Buyer’s selection, use, sale, and further processing of Products sold hereunder.
  7. Notice of Claim.  Buyer will make an examination of all Products promptly after receipt at the destination specified by Buyer.  Any claims which Buyer shall have against ET arising under this Agreement will be waived unless made in writing as soon as the facts and circumstances on which the claim is based are known to Buyer, and in any event will be waived after 30 days from the date of delivery of Products to Buyer.  Failure by Buyer to give such written notice within the applicable time constraint will constitute an absolute and unconditional waiver of all such claims irrespective of whether Buyer has discovered the facts giving rise to such claim, or whether further processing, manufacture, other use, or resale of such Product has actually occurred and shall constitute an irrevocable acceptance of Products delivered and of such similar Products that have been ordered.
  8. Returns.  Any and all claims for shortage or rejection for defects must be made in writing within 30 days after Buyer’s receipt of shipment.  Products shall be returned only upon ET’s written Return Goods Authorization and ET accepts no responsibility for Products returned without such Authorization.  ET will not grant credit on any Products which have been altered in any way or upon which any additional operations have been performed by Buyer.
  9. Insurance Coverage.  Buyer’s materials and/or parts in ET’s possession are not covered by insurance.  ET shall be liable only for damages to such materials and/or parts resulting from ET’s gross negligence.
  10. Molded Parts.  Molded parts will be furnished according to the approved part drawing in ET’s possession with no subsequent machine work to be performed by ET.  The finish on any Product includes only such polish as is obtained directly from the molding process.  Any sample parts submitted to Buyer shall be deemed approved if written notice of rejection is not received by ET within 2 weeks after the date Buyer received the sample parts.
  11. Molds.  50% of the price quoted for molds & tooling is due with the Buyer’s purchase order; the remainder will be invoiced with the first shipment of molded parts.  Customer molds held by ET beyond 12 months after completion of the most recent production run will be subject to storage charges.
  12. Patent License.  ET hereby grants to Buyer, subject to certain reserved rights and the conditions herein, a non-exclusive patent license under ET’s patent rights solely to the extent required for Buyer to make, have made, sell, or offer to sell the Products.  Notwithstanding anything to the contrary set forth herein, ET reserves the right to make, have made, use, and sell products covered by ET’s patents for its own account and to grant licenses to other parties that are not inconsistent with the license granted to Buyer herein.
  13. Part Specifications.  Quality requirements will be reviewed, in consideration of SPE/SPI standards, with mutual agreement between ET and Buyer prior to release for production.  On mutually agreed specific production programs, ET will employ the use of statistical analysis to control the manufacturing process.
  14. Disclaimer of Warranties.  Subject to Section 14, ET warrants that Products delivered hereunder shall have good and free title and shall, at the time of shipment, conform to ET’s published specifications or other requirements expressly stated on the quotation.  These warranties extend only to Buyer.  Any testing performed by ET to determine conformance to such specifications or standards is based upon laboratory tests considered reliable by ET, but ET makes no warranty of the results Buyer might obtain in any particular application for Product.  ET MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO ANY PRODUCTS, EITHER EXPRESS OR IMPLIED, RESPECTING MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.  ET MAKES NO WARRANTIES EXTENDING BEYOND THE DESCRIPTION OF THE PRODUCTS, WHETHER USED ALONE OR IN COMBINATION WITH ANY OTHER SUBSTANCE OR IN ANY PROCESS.  OTHER THAN EXPRESSLY SET FORTH IN THIS SECTION,ALL WARRANTIES, EXPRESS OR IMPLIED,ARE DISCLAIMEDAND THIS DISCLAIMER EXPRESSLY EXCLUDESAND DISCLAIMSALL IMPLIED WARRANTIES OF ANY KIND, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY, THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE,AND ANY WARRANTY OF TITLE INCLUDING THE WARRANTY OF NON-INFRINGEMENT.  ET SHALL NOT BE RESPONSIBLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM ANY BREACH OF WARRANTY.  No representative of ET is authorized to make warranties, affirmations, promises, or representations as to Products and none shall be binding upon ET unless reduced to writing and signed by an officer of ET.
    1. Limitation of Liabilities.  ET shall not be liable to Buyer or any third party for any special, indirect, punitive, speculative, or consequential damages, whether under breach of warranty, contract, negligence, or strict liability, or any other cause whatsoever.  ET’s liability and Buyer’s exclusive remedy for any claim, whether in tort, contract, or warranty, shall be limited to the reimbursement to Buyer of such amount of the purchase price for Products delivered hereunder as Buyer shall have paid to ET, and in no event shall ET be liable for indemnification of Buyer on account of any claim asserted against Buyer or for any other or further damages whatsoever whether direct or indirect. ET may recommend Products suitable for Buyer’s stated purpose.  Physical property data provided is based on laboratory testing using standardized test methods and is believed to represent the nominal results of those tests.  Because conditions under which Products may be processed, tested, or used cannot be anticipated, no warranty is given, either express or implied, as to the accuracy or reproducibility of these data or for the fitness of Products for any particular use.  Products are sold with the express understanding that purchasers, processors, or other users of Products have sole responsibility, through performance of their own testing, to determine the suitability of Products for any particular use.  ET may assist Buyer in part design and prototype fabrication, but ET does not assume any liability for any reason for the practicability or application of these suggestions as provided by ET personnel and adopted either by the Buyer or anyone at Buyer’s direction.  All Products are manufactured to Buyer’s specifications; therefore ET’s liability will only extend to Products that do not meet Buyer’s specifications as expressed on the quotation.
  15. Indemnification.  Buyer shall defend, protect, and indemnify ET, its officers, directors, employees, agents, successors, and assigns against all actions at law or in equity and from all damages, claims, and demands (including any attorney’s fees or associated expenses incurred due to alleged infringement of patents or trademarks arising from compliance with Buyer’s design specifications or instructions) for violation, infringement or misappropriation of any third party’s intellectual property right by reason of ET’s manufacture and/or sale of Products irrespective of whether such action or claims ultimately proves to be without merit.
  16. Risks and Liabilities.  Buyer assumes all risks and liability for loss or damage resulting from the handling, use, or application (whether singly or in combination with other products) of Products delivered hereunder.  Buyer shall indemnify and hold ET harmless from all liability resulting from any claim by Buyer or any third party, including without limitation or restriction Buyer’s employees and customers, resulting from the handling, use, or application of the Products delivered hereunder, whether or not such Products are handled, used, or applied singly or in combination with other articles or substances or are handled, used, or applied in any manufacturing process, except where and to the extent that ET is proven in a court of law to be solely negligent.
  17. Safety, Health, & Indemnity.  Buyer acknowledges receipt from ET of Material Safety Data Sheets (“MSDS”) for the applicable Products and/or that Buyer has reviewed such MSDS, either as provided with such Product or at www.ecomass.com/product-list/.  Buyer shall provide such MSDS to any persons that may use or otherwise be exposed to such Products.  Buyer agrees to defend and indemnify ET against any and all liability for Buyer’s failure to disseminate such information.  Buyer shall instruct its employees, agents, contractors, and customers on the safe handling, use, selling, storage, transportation, and disposal practices for Products.
  18. Assignment.  The obligations hereunder upon the Buyer are neither assignable nor transferable, in whole or in part, except with the prior written consent of ET.
  19. Force Majeure.  Neither Buyer nor ET shall be liable for its failure to perform hereunder if said performance is made impracticable due to any occurrence beyond its reasonable control, including acts of God, fires, flood, hurricanes, wars, sabotage, accidents, labor disputes or shortages, governmental laws, ordinances, rules and regulations, whether valid or invalid (including, but not limited to, priorities, requisitions, allocations, and price adjustment restrictions), or inability to obtain raw material, equipment or transportation, and any other similar occurrence. The party whose performance is made impracticable by any such occurrence shall have the right to omit during the period of such occurrence all or any portion of the quantity deliverable during such period, whereupon the total quantity deliverable hereunder shall be reduced by the quantity so omitted.  If, due to any such occurrence, ET is unable to supply the total demands for any Products specified hereunder, ET shall allocate its available supply among its customers in a fair and equitable manner.  Because of the unique and patented nature of Ecomass Products, in no event shall ET be obligated to purchase similar items from others in order to enable it to deliver Products to Buyer.
  20. Waiver & Consent.  ET’s failure to insist upon strict performance of any of these Terms and Conditions shall not be deemed a waiver of any rights or remedies it may have, and shall not be deemed a waiver of any subsequent breach or default of these Terms and Conditions.  No provision in this Agreement shall be deemed to have been waived by ET unless such waiver is in writing and signed by an officer of ET.  No course of conduct, or any delay of ET in exercising any rights it may have hereunder, shall waive any rights of ET or modify this Agreement.
  21. Attorney’s Fees and Court Costs.  In the event it becomes necessary for ET to bring legal action against Buyer because of nonperformance of Buyer’s obligations and duties, Buyer shall pay all attorney’s fees and related expenses incurred by ET in connection with enforcing this Agreement, whether or not legal proceedings are instituted, and in connection with all collection activities to obtain payment of any past due amounts.
  22. Entire Agreement.  This Agreement applies to and is incorporated into all sales by ET for the Products described on any ET quotation or invoice as if fully set forth therein.  ET does not accept and expressly rejects any different or additional terms other than those contained in any existing written contract signed by both Buyer and ET covering Products delivered hereunder.  If there is no such existing written contract, ET will sell such Products to Buyer only upon the terms in this Agreement and acceptance of such Products by Buyer shall constitute assent to this Agreement.  This Agreement, together with the quotation or invoice of ET when applicable, consists of the entire agreement for the sale and purchase of the Products named on the quotation or invoice.  No modification of this Agreement, oral or written, shall be of any force or effect unless in writing and signed by the party claiming to be bound thereby, and no modification or addition shall be affected by the acknowledgment or acceptance by ET of a purchase order, acknowledgment, release, or other form submitted by Buyer containing additional terms or conditions, and ET hereby gives Buyer notice of the rejection of any such additional terms and conditions.  Buyer’s payments for goods supplied or work performed by ET under the contract are to be made at ET’s corporate office in Austin, Texas.
  23. Governing Law.  This Agreement has been negotiated, executed and delivered at and shall be deemed to have been made in Texas.  This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Texas.
  24. Arbitration.  Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.  Arbitration will take place in Austin, Texas and the parties will bear equally the costs of  arbitration.

26. Modifications of Agreement.  ET reserves the right to make changes to this Agreement at any time and any such changes will become effective upon the date they are first posted to this site.  Buyer agrees to be bound by the revised Agreement for any orders placed after the date of such revision.  ET does not and will not assume any obligation to notify Buyer of changes to this Agreement.