Empire Group - Standard Terms & Conditions of Sale

Updated August 30, 2022

1. Order and Acceptance.

The following are the terms and conditions for the sale of all products and services by Empire Group, Inc (“Empire” or “Seller”). Any Seller quotation, purchase order or order acknowledgment is an offer subject to and expressly conditioned upon Customer’s consent to these standard terms and conditions (“Agreement”) and any terms included in Seller’s quotation, or order acknowledgment. Empire rejects any different or additional terms or conditions contained in any request for quotation, purchase order or other document of the Customer, and no such different or additional terms shall be effective or binding upon Empire unless agreed to in writing and signed by an officer of Empire

2. Quotations, Pricing and Payment.

a. Quotations are valid for 30 days unless otherwise agreed to in writing and are subject to review upon receipt of finalized engineering data, CAD Data or any other pertinent specification or information. Changes in quantity or specifications may require a revised quotation. All prices are in US dollars.

b. Invoices shall be due and payable thirty (30) days from the date of the invoice. Empire reserves the right to withhold shipment of parts or delivery of services if an account is in arrears. Complex or large jobs may require a deposit prior to Empire beginning work. If payments are not received when due, Empire reserves the right to charge Customer, in addition to the overdue payment, a late charge equal to the lesser of 1½% per month or the highest applicable rate allowed by law on all such overdue amounts.

c. Unless specified in writing by Empire, all pricing is exclusive of packaging, shipping, and insurance costs as well as any duties, levies and federal, state and local taxes, which shall be borne by Customer.

3. Delivery.

a. Delivery of all Products hereunder is F.O.B. Empire’s facility. Title to, and risk of loss for, Products pass to Customer at the time of delivery of possession of the Products to a common carrier.

b. Delivery dates are best estimates only and subject to confirmation at the time of order. Any changes to an order may result in a change to delivery dates.

c. Seller reserves the right to make deliveries in installments and the contract shall be severable as to such installments. Delivery delay or default of any installment shall not relieve Customer of its obligation to accept and pay for remaining deliveries. Seller shall have no responsibility for costs accruing from any premium delivery charges even if such charges are caused by Seller's failure to meet any agreed-upon schedules or delivery timelines.

d. Customer shall carefully inspect all deliveries of Products as they are received by Customer and report to Seller promptly (but in any event within ten (10) business days after receipt of shipment) any alleged error, shortage, defect or nonconformity of such Products. Any failure by Customer to timely inspect and timely report shall constitute a waiver by Customer of any claim or right of Customer against Seller arising with respect to any error, shortage, defect or nonconformity. Customer shall conduct any required inspection at its expense and shall return any nonconforming Products to Seller within ten (10) business days from Customer’s reporting of any nonconformity at Customer's sole expense and risk.

4. Warranty; Disclaimers.

a. Products sold hereunder are warranted by Seller to be free from defects in material and workmanship and to conform to Seller’s specifications applicable at the time of shipment. This warranty is extended for a period of ninety (90) days from date of shipment to Customer. If the Products sold hereunder are not as warranted, Seller shall, at its option and as Customer’s exclusive remedy, either refund the purchase price, or repair or replace such Product, provided that Seller receives written notice of the defect during the period of warranty. This warranty does not apply to any changes or modifications made to the Product without the prior written consent of Seller or any defect or damage to or issue with the Product arising from the operation, use, maintenance or storage of the Products other than as prescribed by Seller in writing. Seller extends this warranty to Customer only, and it is the complete warranty for the Products.

b. Customer hereby acknowledges and agrees that any products, materials, prototypes, deliverables or other work product that may be developed or prepared by or on behalf of Empire and made available to Customer hereunder (collectively, the “Products”) are being made available to Customer solely for Customer’s internal evaluation purposes and for no other purpose. NOTWITHSTANDING ANYTHING SET FORTH IN THIS AGREEMENT OR IN ANY TERMS INCLUDED IN SELLER’S QUOTATION OR ORDER ACKNOWLEDGMENT TO THE CONTRARY, CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT THE PRODUCTS ARE NOT INTENDED FOR USE OR TESTING IN HUMANS OR ANIMALS. ACCORDINGLY, CUSTOMER FURTHER AGREES THAT IT SHALL NOT USE OR TEST (OR PERMIT THE USE OR TESTING) OF SUCH PRODUCTS IN HUMANS OR ANIMALS OR OTHERWISE USE SUCH PRODUCTS FOR ANY THERAPEUTIC, DIAGNOSTIC OR CLINICAL PURPOSES, AND EMPIRE EXPRESSLY DISCLAIMS ANY LIABILITY RESULTING FROM SUCH PROHIBITED USES OR TESTING OF SUCH PRODUCTS.

c. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OF WARRANTY. No obligation or liability shall arise out of Seller’s rendering of technical advice and/or assistance. Customer retains sole legal responsibility for the design specifications and performance of the Products hereunder.

5. Limitation of Liability.

a. SELLER’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THE SALE OF THE PRODUCT AND THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, WARRANTY, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, SELLER’S NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, IS LIMITED TO THE PRICE OF THE PRODUCT SOLD HEREUNDER WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED.

b. IN NO CASE SHALL EMPIRE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, SERVICE PROVIDERS OR LICENSORS BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR: (1) ANY DAMAGES OR LOSSES SUFFERED AS A RESULT OF THE USE OF ANY PRODUCT IN BREACH OF THIS AGREEMENT, OR (2) ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF DATA, REPLACEMENT COSTS, OR ANY SIMILAR DAMAGES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE WHATSOEVER ARISING OUT OF, CAUSED BY OR RELATED IN ANY WAY TO THE BREACH OF ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES EXPRESSLY AGREE THAT THE ABOVE LIMITATION ON DAMAGES IS AN ALLOCATION OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR THIS AGREEMENT.

6. Indemnification.

Customer shall defend, indemnify and hold harmless Empire, its parent, subsidiaries, successors, assigns and affiliates and the managers, employees, officers, directors, representatives, contractors, licensors, service providers, subcontractors, suppliers, interns and agents of each of them (collectively the “Seller Indemnified Parties”), from and against any damage, loss claim, demand, judgment or other liability, cost or expense (including but not limited to, court costs and reasonable attorneys’ fees) made by any third party due to or arising out of: (a) Customer’s breach of these Terms and Conditions or the documents they incorporate by reference, (b) the Customer’s use of the Products (inclusive of any uses of such Products in violation of Section 4(b)), or (c) any infringement or violation of any third party's intellectual property or other rights arising out of or in connection with Seller's compliance with Customer furnished specifications, designs, or instructions, or use of Customer furnished components. Seller reserves the right, without being required to do so, and without waiver of any indemnity hereunder, to defend, at Customer’s expense, any claim, action or lawsuit coming within the scope of this paragraph.

7. Confidential Information.

a. Ownership of Intellectual Property. Title to and ownership of all of the technology, trade secrets, knowhow and information regarding Products supplied by Customer to Empire shall remain in Customer. Customer hereby grants Empire a limited, non-transferable, non-exclusive revocable license to use Customer’s software, technology, trade secrets, knowhow and proprietary information (Customer’s Proprietary Information), free of any claim or allegation by Customer of misappropriation or infringement by Seller of Customer’s Proprietary Information; provided, however, that Seller’s license to use Customer’s Proprietary Information shall endure only for the term of the accepted Order. After the termination or expiration of an accepted Order, Seller shall have no further rights to use Customer’s Proprietary Information as to that Order and Seller shall return to Customer all documents and materials relating to Customer’s Proprietary Information. Title to and ownership of any software, technology, trade secrets, know how, and information of Seller (Seller’s Proprietary Information) used by Seller hereunder shall remain the property of Seller.

b. Confidentiality. The parties acknowledge that each party’s Propriety Information set forth in Section 7 (a) contains valuable trade secrets. Each party agrees that it will maintain and protect the confidentiality of the other party’s Proprietary Information using the same standard of care that such party uses to protect its own Proprietary Information, which in no event shall be less than reasonable care. The obligation to keep each party’s Proprietary Information confidential survives the termination or expiration of the accepted Order.

c. Data transmission. Customer data transmitted to Empire must be in compliance with NIST 800 or ISO 27001.

8. Import/Export.

Customer shall comply with all applicable export control laws and shall not, directly or indirectly export, reexport, resell, ship, or divert any Product, Material, service, technical data, or software furnished hereunder to any person, entity, project, use, or country in violation of the laws or licensing requirements of the United States or any other appropriate national authority. Customer shall indemnify and hold Seller harmless for any and all claims, demands, cost, fines, penalties, fees, expenses or losses arising from Customer's failure, intentional or unintentional, to comply with the foregoing paragraph.

9. Materials.

Empire assumes no responsibility or liability for the selection of any materials used in the Products hereunder. Customer is solely responsible for ensuring that materials selected meet any regulatory requirements or specifications including but not limited to Directive 2002/95/EC on the restriction of the use of certain hazardous substances in electrical and electronic equipment (RoHS Directive) together with any national legislation implementing such Directive, ISO, FDA, UL, CSA, CE, TUV, FCC, NSF, and USP. Any statements made by Empire personnel or specifications provided by Empire regarding materials should be verified by Customer directly with the manufacturer of said material.

10. Force Majeure.

Neither party shall be liable for its failure to perform due to any occurrence beyond its reasonable control, including acts of God, fire, floods, war, terror, sabotage, accidents, labor disputes or shortages, governmental laws, ordinances and regulations, allocations and price restrictions, inability to obtain material, equipment or transportation, or any other similar occurrence; provided, however, Customer’s payment for Products produced and shipped shall not be suspended by any event of force majeure. The party whose performance is prevented by any such occurrence shall promptly give written notice to the other party of the cessation of performance. The party affected by such occurrence shall use commercially reasonable efforts to minimize the effects of the force majeure event.

11. General.

a. This Agreement, with such documents as are expressly incorporated herein by reference, is the final, exclusive, complete agreement. No modifications hereto shall be effective unless they are agreed upon in writing by both parties.

b. The failure of either party to insist in any one or more instances upon the performance of any of the terms, covenants or conditions of this agreement or to exercise any right under this Agreement, shall not be construed as a waiver of the future performance of any such term, covenant or condition of the future exercise of any right.

c. No right, interest or obligation in this Agreement may be assigned or delegate by either party without the written permission of the other party. This Agreement is binding upon and shall inure to the benefit of the parties and their respective successors.

d. The parties agree that any claim or dispute arising from this transaction will be submitted to non-binding mediation prior to initiation of any formal legal process.

e. This Agreement shall be governed and interpreted in accordance with the laws of the Commonwealth of Massachusetts without reference to principles of choice and conflicts of laws. Any dispute regarding the Products or this Agreement shall be subject to the exclusive jurisdiction of the United States District Court for Massachusetts and the jurisdiction of any court of the Commonwealth of Massachusetts located in the city of Boston, MA.

f. Customer agrees that this Agreement and any terms included on Seller’s quotation, purchase order or order acknowledgement are the exclusive statement of the terms and conditions of the agreement between the parties and that they supersede all proposals and other communications between the parties, oral or written, relating to the subject matter hereof.

g. If any provision of this Agreement is contrary to, prohibited by or held invalid by any law, rule, order or regulation of any government or by the final determination of any State or Federal court, such invalidity shall not affect the enforceability of any other provisions not held to be invalid.

12. Contact Information.

Questions about these Terms and Conditions should be sent to us at info@empirepd.com or

Empire Group, Inc.
217 East Street
Attleboro, MA 02703
United States

P: 508-222-3003