STANDARD TERMS & CONDITIONS OF SALES

  1. TERMS & CONDITIONS OF SALE. These Standard Terms and Conditions of Sale (“Terms”) apply to (a) the goods that are the subject of a sale from ECMS, Inc. ("ECMS") to Buyer ("Products"), (b) the services sold by ECMS to Buyer are referred to as the "Services," and (c) items of tangible property on which ECMS performs Services or that result from Services are referred to as the "Service Items." Any irreconcilable conflict between these Terms and any terms from an applicable ECMS quotation, order acknowledgement, these terms and conditions prevail. “Buyer” is any party that agrees to purchase Products or Services from ECMS.

  2. ACCEPTANCE. ECMS’ acceptance of any written offer by Buyer, in the form of a purchase order or otherwise, to purchase Products and Services is expressly conditioned upon Buyer’s assent, acceptance and agreement to the Terms, evidenced by (a) no written objection sent to ECMS within ten (10) days after receipt of the order acknowledgement, (b) instruction to ECMS to begin work or shipment of Products or Services, (c) acceptance of or payment for all or any part of the Products or Services, (d) taking any other action evidencing Buyer’s acceptance of the benefits of the Terms (collectively, “Buyer’s Acceptance”).  Any offer received from Buyer to ECMS shall be conclusively construed to be written acceptance of these Terms.  No modification, alteration, addition or change to these Terms shall be valid or enforceable unless expressly agreed to in writing by an authorized officer of ECMS.  These Terms supersede all previous communications, representations or agreements either oral or written between Buyer and ECMS with respect to the Products or Services.  Failure of ECMS to object to any terms or conditions which may be contained in any document or form of Buyer shall not be construed as a waiver of these conditions, nor as an acceptance of any such terms and conditions.  These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and that is signed by an authorized representative of ECMS and Buyer.

  3. DELIVERY. Delivery dates are approximate. The failure to meet an indicated delivery date will not constitute a breach of these Terms. In no event shall ECMS be liable for any claims for labor or for any special, indirect, incidental, or consequential damages including, but not limited to, demurrage charges, cost of shipment, downtime, lost profits (whether direct or indirect), lost sales, or any other damages resulting from delay in delivery. If ECMS’ production or delivery is delayed, ECMS may allocate production and delivery among its customers in a manner it deems reasonable. ECMS reserves the right to change or re-designate any product source listed in these Terms. ACCEPTANCE OF THE PRODUCTS OR SERVICE ITEMS BY BUYER UPON DELIVERY SHALL CONSTITUTE A WAIVER BY BUYER OF ANY CLAIM FOR DAMAGES ON ACCOUNT OF DELAY IN DELIVERY OR PERFORMANCE.

  4. SHIPMENT AND RISK OF LOSS. All deliveries are F.O.B. the ECMS’ facility or freight prepaid. Unless otherwise agreed in writing, ECMS may, in its sole discretion, select the shipping method, the carrier and the applicable freight charges. If Buyer desires to pick up the Products or Service Items at ECMS’ facilityBuyer must contact ECMS to arrange a mutually convenient time for pick up. Buyer shall indemnify and hold harmless ECMS from and against any claims, damages or liabilities suffered by ECMS resulting from any acts or omissions of carrier. Title to the Products and risk of loss to the Products and Service Items shall pass to the Buyer at the point of shipment from the ECMS’ facility, whether freight prepaid or F.O.B., regardless of which party selects the carrier and arranges the freight charges or particulars of shipment. Risk of loss for damage or delay in transit shall be borne by Buyer. Buyer shall file and pursue any claims directly with the carrier related to loss, damage or delay in transit, and Buyer shall not assert such claims against ECMS or deduct from amounts owing to ECMS.

  5. RELEASE OF PRODUCTS AND SERVICE ITEMS FOR SHIPMENT. Buyer hereby releases the Products or Service Items for shipment within one (1) day after ECMS acknowledges order to Buyer. After such 1-day period, Buyer will pay a holding charge determined in good faith by ECMS and/or ECMS may ship the Products or Service Items to Buyer without further notification. Buyer agrees to accept delivery of all shipped Products or Service Items and to pay the applicable price. With respect to any order of a single item of a truckload or less, Buyer must release the entire order for shipment at one time or pay additional LTL freight charges required by ECMS.

  6. DELAYS AND CANCELLATIONS BY BUYER. Buyer is not entitled, without ECMS’ prior written consent, which may be withheld or conditioned in ECMS’ sole discretion, to cancel or delay a delivery of the Products or Services for all or any part of an order within any Firm Order Period. ECMS may treat as a cancellation any proposed delay greater than sixty (60) days. If ECMS consents to the cancellation or delay, Buyer shall pay a cancellation or delay charge in an amount determined in ECMS’ sole discretion to reflect all applicable Delay/Cancellation Costs from the original request date until the time of delivery or performance. In the case of cancellation, the charge may also include, at ECMS’ sole discretion, a reasonable and equitable profit for ECMS. If ECMS’ work on an order requires material from Buyer or a third party selected by Buyer, and ECMS does not timely receive material that strictly conforms to ECMS’ requirements, ECMS may delay performance of or cancel the order without liability, and Buyer shall compensate ECMS for all Delay/Cancellation Costs, including for costs incurred and time expended working on non-conforming material.  "Delay/Cancellation Costs" include all labor, materials, overhead, general and administrative costs, restocking charges, surcharges levied on material by outside suppliers, sub-vendor cancellation charges, excess inventory charges, value of storage space, inventory tax charges, banking and finance charges, scrapping and disposal fees, and other harm, costs and charges incurred directly or indirectly by ECMS in connection with a delay or cancellation of an order for the Products or Services. The "Firm Order Period" is determined according to, as applicable, the quotation, order acknowledgement or separate written and signed agreement. If there is no quotation, order acknowledgement or separate written and signed agreement, or if none of those items specifies the Firm Order Period, the Firm Order Period will be determined according to ECMS’ then current cancellation and order management policy. If a Firm Order Period cannot be determined in any of the preceding methods, the entire order will be considered to be within the Firm Order Period.

  7. SPECIFICATIONS. The material specifications, quality requirements, or any other aspect of the Products and the Service Items or their manufacture (the "Product Specifications") is governed by the terms of any applicable ECMS’ quotation, order acknowledgement, or separate written and signed agreement. If any of the Product Specifications set forth in a ECMS’ quotation, materially differs from the Product Specifications in the applicable order acknowledgement, or separate written and signed agreement,  ECMS may, in its sole discretion, require that Buyer provide a written acknowledgment and acceptance of the Product Specifications in either the ECMS’ quotation, order acknowledgement, or separate written and signed agreement prior to the manufacture, repair or delivery of the Products or Service Items or performance of the Services. Buyer is not entitled, without ECMS’ prior written consent, which may be granted or withheld in ECMS’ sole discretion, to make any changes to Product Specifications in ECMS’ quotation, order acknowledgement, or separate written and signed agreement. If ECMS consents to the change, ECMS may condition its consent on Buyer's agreement to price adjustments and other compensating payments satisfactory to ECMS. In addition to all other remedies available to it under applicable law, ECMS may refuse to comply with any change to which ECMS has not given its prior written consent.

  8. GOVERNMENT CONTRACTS. Buyer shall promptly notify ECMS if Buyer is purchasing the Products or Services pursuant to a government contract or sub-contract, and Buyer shall specify any contractual terms or government procurement laws and regulations that Buyer is obligated to comply with for such Products, Service Items or Services.  ECMS shall not be obligated to comply with any government procurement provisions unless agreed to in a writing signed by an authorized representative of ECMS.

  9. PURCHASE PRICE. The purchase price of the Products or Services shall be as stated in the applicable ECMS quotation, order acknowledgement, or separate written agreement signed by an authorized representative of ECMS and paid in United States Dollars. Unless agreed to by ECMS in writing, the purchase price does not include shipment costs or any other costs specifically excluded in these Terms. If the Products or Service Items are shipped freight prepaid, the charge for freight shall be added to the invoice(s). Prices are based on and assume Buyer's compliance with all of these Terms, and a promise by Buyer to purchase a particular mix and quantity of Products and Service Items, or a certain percentage of Buyer's requirements for the Products or Service Items. ECMS may adjust prices, in its sole discretion, if the circumstances do not coincide with the forgoing assumptions.

  10. PAYMENT TERMS. Payment terms are net 30 days from invoice date with no discounts or retention of any kind or sort allowed. Interest will accrue on invoices unpaid after the net due date at the annual rate of 12% or the maximum legal contract interest rate, whichever is less. 

  11. SHIPPING WEIGHT. All weights offered, shown or calculated with respect to the Products or Service Items, other than the actual shipping weights, are approximate estimated weights only. If sale terms are on a weight basis, ECMS’ actual shipping weights are to govern the performance of these Terms. If such an approximate weight is offered, shown or calculated, Buyer shall nevertheless accept ECMS’ shipping weights as the basis of full and complete delivery, and make payment therefor. 

  12. SURCHARGES; PRICE ADJUSTMENTS. Unless notice of written objection is given by Buyer to ECMS within 72 hours after notice from ECMS: For purchases made pursuant to a separate written agreement signed by an authorized representative of ECMS, if ECMS announces a surcharge, such surcharge shall become effective for the Products or Service Items scheduled for shipment beginning on the date set forth in ECMS’ announcement of such surcharge or, if there is no such date, immediately upon such announcement; for all other purchases, including, but not limited to, spot purchases: (a) if ECMS announces a general price increase, such price increase shall become effective for the Products or Service Items scheduled for shipment beginning on the date set forth in ECMS’ announcement of such price increase or, if there is no such date, immediately upon such announcement; and (b) if ECMS announces a surcharge, such surcharge shall become effective for the Products or Service Items scheduled for shipment beginning on the date set forth in ECMS’ announcement of such surcharge or, if there is no such date, immediately upon such announcement.

  13. TAXES. Prices do not include any taxes or other assessments. All taxes, duties, fees, assessments or other charges of any kind imposed by any federal, state, municipal or other governmental authority which ECMS is required to collect or pay with respect to the provision, production, sale or shipment of the Products or Services shall be the responsibility of Buyer. Buyer agrees to pay all such taxes and further agrees to reimburse ECMS for any such payments made by ECMS. If Buyer intends to purchase the product(s) and/or service(s) for resale, Buyer must produce and deliver to ECMS the documents required by the applicable and appropriate governmental authority at time of order placement.  By doing so buyer hereby affirms that it is purchasing the Products referenced herein for resale, and/or that Buyer is not the end user of the Products, so as to be exempt from any otherwise applicable sales, excise or other applicable taxes.

  14. FAILURE OF PAYMENT. If Buyer fails to make payment in full or in part when due or refuses to pay any applicable price increases or surcharges, ECMS shall have the right to: (a) immediately suspend performance and cancel the unfinished portion of any outstanding orders, (b) declare all unpaid amounts for the Products or Service Items delivered immediately due and payable, and (c) withhold further deliveries. If ECMS elects to proceed with an order after the suspension of performance, ECMS shall have an extension of time for performance as is necessitated by the suspension. ECMS shall have the right to enforce payment of the full purchase price, including any price increase or surcharge, for Products or Service Items already delivered or in process. Buyer shall reimburse ECMS for all costs of collection, including reasonable attorney's fees, incurred as a result of Buyer's failure to make payments when due.

  15. BUYER'S FINANCIAL CONDITION. All new commercial customers who desire to arrange monthly shipments of Products or Services, must supply a current financial statement, five trade references, and completed credit questionnaire. ECMS shall have the right, by written notice, to suspend performance, terminate the applicability of these Terms, cancel any order, modify any payment terms, or require full or partial payment or adequate assurance of performance from Buyer, without liability to ECMS, in the event of a material adverse change in the Buyer's financial condition or if reasonable grounds for insecurity arise with respect to Buyer's performance of these Terms, evidence of which might include, among other things, (a) a default under any of Buyer's financing agreements, (b) Buyer's inability to obtain financing, (c) a reduction in Buyer's credit rating by a recognized rating agency, (d) Buyer's insolvency, (e) the filing of a bankruptcy by or against Buyer (whether voluntary or involuntary), (f) the appointment of a receiver or trustee for Buyer, (g) the execution by Buyer of an assignment for the benefit of creditors, (h) the failure by Buyer to make a payment to ECMS when due, or (i) any other event which raises reasonable doubts as to Buyer's creditworthiness. The modifications ECMS may make to payment terms include shortening the payment period, requiring advance payment, or requiring payment of cash on delivery. ECMS shall notify Buyer in writing of any modifications to payment terms, which may be made retroactive to include amounts then accrued but unpaid. ECMS reserves the right to cancel Buyer's credit at any time for any reason, without notice. The foregoing remedies are in addition to ECMS’ other rights and remedies under these Terms and under applicable law, including Section 2-609 of the Uniform Commercial Code.

  16. SETOFF. ECMS shall have the right to credit toward the payment of any monies that may become due Buyer hereunder any amounts which may now or hereafter be owed to ECMS or any of its subsidiaries or affiliates. Buyer shall pay ECMS’ invoices without discount, setoff, retention or reduction for any reason, including asserted warranty claims or other claims of non-performance by ECMS.

  17. ACCORD AND SATISFACTION. Checks or payments, whether full or partial, received from or for the account of Buyer, regardless of writings, legends or notations upon such checks or payments, or regardless of other writings, statements or documents, shall be applied by ECMS against the amount owing by Buyer with full reservation of all ECMS’ rights and without an accord and satisfaction of Buyer's liability.

  18. LIMITED WARRANTY. UNLESS EXPRESSLY SET FORTH IN ECMS’ QUOTATION, ORDER ACKNOWLEDGEMENT OR SEPARATE WRITTEN AND SIGNED AGREEMENT, ECMS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHICH ARE EXPRESSLY DISCLAIMED. AT ECMS’ DISCRETION, BUYER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THE CONFORMANCE OF ANY PRODUCTS OR SERVICE ITEMS FURNISHED BY ECMS UNDER THESE TERMS SHALL BE LIMITED TO EITHER: (a) REPLACEMENT OF SUCH PRODUCTS OR SERVICE ITEMS AT THE POINT OF SHIPMENT FROM ECMS’ FACILITY, OR (b) REPAYMENT OF OR CREDIT AGAINST THE PURCHASE PRICE OF SUCH PRODUCTS OR SERVICE ITEMS UPON AUTHORIZED RETURN THEREOF. The employees and representatives of ECMS are not authorized to make any statement or representation as to the Products, Services, or Service Items inconsistent with these Terms and no such statements made will be binding upon ECMS or be grounds for any claim.  For the avoidance of doubt, Products and Service Items manufactured in whole or in part by any party other than ECMS shall be subject exclusively to the warranty, if any, provided by the manufacturer of such Product or Service Item.

  19. NON-CONFORMING PRODUCTS AND SERVICE ITEMS. No claim for damages for non-conforming Products or Service Items will be allowed unless Buyer provides ECMS with written notice of the claim within fifteen (15) days of the date the Products or Service Items were delivered to Buyer. To assert such a claim, Buyer must (a) at ECMS’ request, return to ECMS all of the non-conforming Products or Service Items,  and (b) provide reasonable evidence to support the claim, including, if requested by ECMS within 10 days after request by ECMS, results of diagnostic tests, evaluations and investigations performed by Buyer or Buyer's customer. Products or Service Items for which damages are claimed shall not be returned, repaired, or discarded without ECMS’ prior written consent. If requested by ECMS, the non-conforming Products or Service Items must be returned to ECMS at Buyer's expense within ten (10) days of ECMS’ request. No claims, rejections or returns for non-conforming Products or Service Items will be permitted unless Buyer cooperates in full with ECMS’ technical personnel to determine the cause of the non-conformance.

  20. SHORTAGE OR DAMAGED OF PRODUCTS OR SERVICE ITEMS. Claims by Buyer with respect to shortage of invoiced Products or Service Items, or for damaged Products or Service Items, must be made to ECMS in writing no later than ten (10) days from the date the Products or Service Items were delivered to Buyer. All claims must be made only for substantial cause, must be in writing, and must specify the reason(s) for the claim. THE FAILURE TO NOTIFY ECMS OF ANY CLAIM WITHIN THE TIME PERIOD SPECIFIED BY THIS SECTION SHALL CONSTITUTE A WAIVER OF AND BAR TO SUCH CLAIM. ECMS SHALL INCUR NO LIABILITY FOR SHORTAGE OR DAMAGE ALLEGED TO HAVE OCCURRED OR EXISTED AT OR PRIOR TO DELIVERY TO THE CARRIER UNLESS BUYER SHALL HAVE ENTERED FULL DETAILS THEREOF ON CARRIER'S DELIVERY RECEIPT WHICH MUST BE SIGNED BY THE CARRIER'S AGENT. ECMS MUST BE GIVEN AN OPPORTUNITY TO INVESTIGATE THE CLAIM BEFORE BUYER DISPOSES OF THE PRODUCTS OR SERVICE ITEMS. ANY DAMAGED PRODUCTS OR SERVICE ITEMS SHALL NOT BE RETURNED, REPAIRED OR DISCARDED WITHOUT ECMS’ WRITTEN PERMISSION.

  21. TECHNICAL ADVICE. ECMS assumes responsibility only for technical advice provided by ECMS in writing and assumes no obligation or liability for any technical advice furnished to Buyer in any other manner, including without limitation any provided in writing by any third party. With respect to any technical advice provided by ECMS in writing, ECMS will not be liable for any damages of any kind arising out of or relating to the use of or the inability to use the information provided, including but not limited to any special, indirect, incidental or consequential damages including, without limitation, demurrage charges, cost of shipment, downtime, lost profits (whether direct or indirect), or lost sales, whether foreseeable or not, and even if ECMS has been advised of the possibility of damages.

  22. INTELLECTUAL PROPERTY. Nothing in these Terms is to be construed as a grant or assignment of any license or other right to Buyer of any of ECMS’ or its affiliates' intellectual property rights, whether patent, trademark, trade secret, copyright or otherwise. All improvements and developments related to the Products or the efforts of ECMS and Buyer will be owned exclusively by ECMS, and Buyer shall reasonably cooperate with ECMS in confirming that result.  ECMS shall have no liability of any kind with respect to any actual or alleged infringement of any United States or foreign patent, trademark, copyright, deskwork right, trade secret or other intellectual property or proprietary right.  Buyer agrees to look solely to the manufacturer or licensor of the products with respect to any claim of infringement.  Furthermore, Buyer agrees to protect, defend, indemnify, and hold harmless ECMS from all sums, costs, expenses, and attorney’s fees, which ECMS may incur or be obligated to pay as a result of any and all claims, demands, causes or action, or judgments arising out of or relating to any use, modification, or enhancement of the Products or Service Items purchased by the Buyer unless such use, modification, or enhancement is approved in writing by the manufacturer or licenser of the Products or Service Items.

  23. CONFIDENTIALITY. Any pricing or other sensitive commercial information provided by ECMS to Buyer is proprietary to ECMS and shall be held in confidence by Buyer, shall only be used by Buyer in connection with this sale, and shall not be used for any other purposes or disclosed to third parties without ECMS’ prior written consent. Buyer shall be liable for any loss to ECMS or commercial gain by others from unauthorized use of confidential information occasioned by Buyer's failure to comply with this provision.

  24. AUDIT. Unless otherwise agreed to in writing by an authorized representative of ECMS, Buyer shall have no right to audit any books or records of ECMS and Buyer shall have no right to enter into any facility owned or controlled by ECMS.

  25. LIMITATION OF LIABILITY. ECMS’ LIABILITY, WHETHER IN CONTRACT, IN TORT, UNDER WARRANTY, IN NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES, AND UNDER NO CIRCUMSTANCES SHALL ECMS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, DEMURRAGE CHARGES, COSTS OF SHIPMENT, DOWNTIME, LOST PROFITS (WHETHER DIRECT OR INDIRECT), LOST SALES, DAMAGE TO EQUIPMENT, OR CLAIMS OF BUYER'S CUSTOMERS OR OTHER THIRD PARTIES FOR DAMAGES OR PENALTIES, WHETHER OR NOT BUYER IS LEGALLY OBLIGATED TO PAY THEM. ECMS’ LIABILITY HEREUNDER SHALL BE LIMITED TO EITHER: (a) THE OBLIGATION TO REPAIR OR REPLACE, AT ECMS’ SOLE DISCRETION, ONLY THOSE PORTIONS OF THE PRODUCTS OR SERVICE ITEMS PROVEN TO HAVE FAILED TO MEET IN MATERIAL RESPECT THE PRODUCT SPECIFICATIONS ON THE ECMS’ QUOTATION, ORDER ACKNOWLEDGEMENT, OR SEPARATE WRITTEN AND SIGNED AGREEMENT AT THE TIME OF SHIPMENT FROM ECMS’ FACILITY, OR (b) REPAYMENT OF OR CREDIT AGAINST THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES. ECMS AND BUYER EXPRESSLY AGREE TO THIS ALLOCATION OF RISK AND THE PRICE STATED FOR THE PRODUCTS OR SERVICES IS CONSIDERATION FOR THE LIMITATION ON ECMS’ LIABILITY. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXCLUSIVE REMEDY DESCRIBED IN THIS SECTION FAILS ITS ESSENTIAL PURPOSE.

  26. INDEMNIFICATION. Buyer agrees to indemnify, defend and hold harmless ECMS, its directors, officers, employees, agents, successors and assigns from and against any and all damages, losses, expenses, costs (including without limitation reasonable attorney's and accountant's fees), claims, suits, actions, judgments or other liability asserted against or incurred by ECMS arising out of (a) Buyer's breach of its obligations hereunder, (b) Buyer's negligence or misconduct, or (c) Buyer's misuse or misapplication of the Products or Service Items or damage to the Products or Service Items caused by Buyer or its employees, agents or customers.

  27. FORCE MAJEURE. ECMS shall not be responsible for cancellation or delay in delivery or performance resulting, in whole or in part, from causes beyond its reasonable control, including, but not limited to: acts of God; acts of Buyer; strikes or other labor disturbances regardless of whether or not ECMS is capable of settling such strike or disturbance; supplier or facility conditions; temporary or permanent supplier or facility closures; equipment failure; inability to obtain fuel, material, or parts; war; acts of terrorism; sabotage; riot; delays in transportation; repairs to equipment; natural disasters; epidemics; floods; fires; action of governmental authorities (valid or invalid); severe weather conditions; accidents; explosions; failure of or inability to obtain power, raw materials, suppliers, labor, equipment or transportation; a court or administrative injunction or order; or any other contingency the non-occurrence of which was a basic assumption on which these Terms were set forth.

  28. GOVERNING LAW; FORUM SELECTION. These Terms shall be governed by, construed, and enforced in accordance with the laws of the State of California, without regard to conflict of laws principles. Buyer, acting for itself and its successors and assigns, hereby expressly and irrevocably consents to the exclusive jurisdiction of the state and federal courts having authority over the territory of Contra Costa County, California, for any litigation which may arise out of or be related to these Terms or the purchase or use of the Products or Services. Any action brought in any such court may not be transferred or removed to any other court. Buyer waives any objection based upon forum non-conveniens or any objection to venue of any such action.

  29. STATUTE OF LIMITATIONS. BUYER AND ECMS AGREE THAT, UNLESS OTHERWISE SPECIFIED IN THESE TERMS, ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF THESE TERMS OR THE SALE OF THE PRODUCTS OR SERVICES MUST BE BROUGHT WITHIN ONE YEAR AFTER THE DATE ON WHICH THE PRODUCTS OR SERVICE ITEMS IN QUESTION WERE DELIVERED TO BUYER OR THE DATE ON WHICH THE EVENT GIVING RISE TO THE ACTION OCCURRED, WHICHEVER IS EARLIER.

  30. NONWAIVER. The failure of ECMS to enforce any of the provisions of these Terms shall not be construed as a waiver of ECMS’ right to enforce each and every provision hereof. ECMS reserves the right to enforce these terms and conditions at any time and none shall be deemed waived unless such waiver is in writing signed by an authorized representative of ECMS. ECMS’ rights and remedies set forth in these Terms are in addition to all legal and equitable rights and remedies available to ECMS.

  31. ASSIGNMENT OR DELEGATION. Buyer shall not assign or delegate any or all of its rights or obligations under  these Terms without the prior written consent of ECMS, and any attempt to do so will be ineffective.

  32. NO THIRD PARTY RIGHTS. These Terms are for the sole and exclusive benefit of the parties hereto and their permitted successors and assigns. Nothing expressed or referred to in these Terms will be construed to give any other person any legal or equitable right, remedy or claim under or with respect to these Terms.

  33. INDEPENDENT PARTIES. ECMS and Buyer are independent parties and nothing in these Terms shall make either party an agent, partner, joint venturer, or legal representative of the other.

  34. HEADINGS. The section headings contained in these Terms are inserted for convenience only and shall not affect in any way the meaning or interpretation of these Terms.

  35. PARTIAL INVALIDITY. If any term or provision of these Terms is determined to be illegal, unenforceable or invalid in whole or in part for any reason, such illegal, unenforceable or invalid provisions or part thereof shall be stricken from these Terms, and such provision shall not affect the legality, enforceability or validity of the remainder of these Terms.  If any provision or part thereof of these Terms is stricken in accordance with the provisions of this section, then this stricken provision shall be replaced, to the extent possible, with a legal, enforceable and valid provision that is as similar in tenor to the stricken provision as is legally possible.

  36. NOTICES. All notices, requests, demands and other communications required to or permitted to be given pursuant to these Terms shall be in writing and shall be conclusively deemed to have been given (1) when hand delivered to the other party; or (2) two business days after the same have been deposited in a United States post office with first-class or certified mail, return receipt requested, postage prepaid and properly addressed to ECMS at 185 Lennon Lane, Suite 110, Walnut Creek, CA  94598; or (4) the next business day after same have been deposited with a national overnight delivery service reasonably approved by the parties (Federal Express being deemed approved by the parties), postage prepaid, properly addressed with next business day delivery guaranteed, provided that the sending party receives a confirmation of delivery from delivery service provider.

    Each party shall make an ordinary, good faith effort to ensure that it will accept or receive notices that are given in accordance with this paragraph, and that any person to be given notice actually receives such notice.  A party may change or supplement the addresses given above, or designate additional addresses, for purposes of this paragraph by giving the other party written notice of the new or supplemental address in the manner set forth above.

  37. ATTORNEYS' FEES. If either Party shall bring any action, suit, counterclaim, appeal, arbitration or mediation for any relief against the other, declaratory or otherwise, to enforce the terms hereof or to declare rights hereunder (collectively, an Action), the losing party shall pay to the prevailing party a reasonable sum for attorneys’ fees and costs (at the prevailing party’s attorneys’ then-prevailing rates as increased from time to time by the giving of advance written notice by such counsel to such party) incurred in bringing the prosecuting such Action and/or enforcing any judgment, order, ruling or award (collectively, a Decision) granted therein, all of which shall be deemed to have accrued on the commencement of such Action and shall be paid whether or not such Action is prosecuted to a Decision.

  38. ENTIRE AGREEMENT. This agreement and any Order or Acknowledgment between the parties (with any inconsistencies to be governed by the Terms) contain the entire agreement between the parties, and all prior or contemporaneous written or oral communications, negotiations, acts, work performed or payments made prior to the execution of this agreement shall be deemed merged in, integrated and superseded by this agreement.

  39. AMENDMENT. No amendment, modification or supplement to these Terms shall be binding on any of the parties unless it is in writing and signed by the parties in interest at the time of the modification.

  40. TIME. Time is of the essence in respect to all provisions of this agreement in which a definite time for performance is specified.

  41. FURTHER ASSURANCES. The parties shall at their own cost and expense execute and deliver such documents and instruments and shall take such other actions as may be reasonably required or appropriate to carry out the intent and purposes of these Terms.

 

These Standard Terms and Conditions of Sales are effective as of December 1, 2019.

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