(Rev. Aug 09, 2023)
These Terms and Conditions of Sale (“Agreement”) apply to all offers made and orders accepted by the EV Charging POD LLC (“EVCP”). Acceptance of “CUSTOMER” (“CUSTOMER”) orders is clearly recognized upon “CUSTOMER’s” agreement to these terms and conditions excluding all other terms and conditions.
Some of these terms may differ from those in “CUSTOMER’s ” order or Request for Quotation, and some may be new. “EVCP’s” failure to object to provisions contained in any communication from “CUSTOMER” does not waive the provisions of this Agreement, (supplemented by the non–conflicting terms contained in these Terms and Conditions) shall govern the quotations and sales of products purchased from “EVCP”.
“CUSTOMER’s” failure to reject this Agreement within 10 days after receipt, or upon “CUSTOMER’s” receipt of the goods or acceptance of the service, whichever occurs first, is “CUSTOMER’s” unconditional acceptance of these terms and conditions. No additions, deletions or amendments to these terms and conditions will be binding without the written approval of “EVCP”.
No order or “CUSTOMER” obligation may be cancelled, rescheduled, reconfigured, or assigned without “EVCP” ´s prior written authorization and, in such event, “CUSTOMER” will be liable to “EVCP” for any additional costs and expenses incurred by “EVCP”. Prices are subject to change by “EVCP” upon “CUSTOMER” rescheduling or reconfiguration of orders. Prices are also subject to change in response to supplier price increases or if a price has been quoted in error, whereupon “CUSTOMER” may cancel the undelivered portion of any affected order by delivering written notice to “EVCP” prior to the shipment thereof and within 10 days of its receipt of notice of the price increase.
Written quotations by “EVCP” automatically expire 15 days from the date of submission of the quotation and are subject to termination within that period (as defined in the Uniform Commercial Code) and prices include taxes, freight, handling, duty, tariffs or other similar charges, payment of which will be the sole responsibility of “CUSTOMER”. Prices are conditioned upon timely payment and any past due balance or delinquent invoices will accrue interest penalty as shown in 2.a. “EVCP” reserves the right to change prices without notice. Prices are based on current economics from the quoted date for labor and materials cost. “EVCP” reserves the right to add any additional costs incurred due to material cost increases prior to completion of an order. “EVCP” shall have no liability in respect of oral quotation or under any oral agreement unless such agreement is confirmed in writing by “EVCP” within 10 days thereafter. “CUSTOMER’s” purchase order, with a signed Equipment and Installation Agreement for Electric Vehicle Supply Equipment, and initial payment upon receipt by “EVCP” is deemed an acceptance of “EVCP” Quote. You may receive an e-mail from “EVCP” describing your order details by referencing to an “EVCP” dated Quote number. That e-mail legally suffices as order confirmation. It will also represent “EVCP´s” confirmation of your order to start moving forward. “EVCP” reserves the right to correct errors in specifications or prices, due to typographical, clerical, or engineering errors or because of incomplete or inaccurate information from “CUSTOMER”. “EVCP” may revoke its acceptance of such purchase order for any reasonable reason, including your inability to provide “EVCP” with adequate comfort that you (i) will comply with all relevant laws, such as export regulations, or (ii) are, in “EVCP´s” sole discretion, credit worthy.
Cash or anticipation discounts are not allowed. All payments must be in U.S. Dollars. New “CUSTOMER’s” are required to submit one (1) bank reference and (2) trade references for credit purposes. Credit terms, shipments, deliveries, and performance of work are at all times subject to the approval of “EVCP’s” credit department. “EVCP” may at any time decline to make any shipment or delivery or perform any work except upon receipt of payment or satisfactory credit terms and security. In the event of “CUSTOMER’s” bankruptcy or insolvency, “EVCP” will be entitled to terminate any order then outstanding and to receive reimbursement for Termination under this Agreement.
Credit Card & Debit Card payments are processed by PayPal secure servers, an additional 6% fee will be applied when processing payments through PayPal. For your security, please do not send your credit or debit card number by e-mail. Credit Card processing process or service may change without notification.
Unless otherwise defined, payment terms for domestic orders are reference in #17
Unless otherwise defined, payment terms for international orders are TT – In Advance (Wire Transfer) or if required by “EVCP”, LC (irrevocable letter of credit) confirmed with “EVCP’s” bank where the 100% of the project value is escrowed in progressive payment, as shown below in # 17 – Payment Terms.
Each shipment is a separate and independent transaction and “CUSTOMER” must pay accordingly. In the absence of prior agreement as to shipping, “EVCP” may select a carrier. “EVCP’s” responsibility for any loss or damage ends, and title passes, when products are delivered to the carrier, to “CUSTOMER”, or to “CUSTOMER´s” agent (including, without limitation, any test house or value-added service provider), whichever occurs first. “CUSTOMER” will pay for storage charges if “EVCP” holds products at “CUSTOMER´s” request pending instructions or rescheduled delivery.
If “CUSTOMER” delays shipment and payment has not been completed, payments will be due on the date when “EVCP” is originally scheduled to make the shipment. If “CUSTOMER” delays “EVCP’s” work, “CUSTOMER” must pay based on the purchase price and the percentage of completion, as well as any reflective penalties. Goods held for “CUSTOMER” by “EVCP” are at the risk, expense, and in the title of “CUSTOMER”.
Any software or other intellectual property included in or relating to products is supplied by its manufacturer or licensor. “EVCP” makes no representation or warranty with respect thereto and will have no liability in connection therewith, unless owned by “EVCP” or its subsidiaries. “CUSTOMER” agrees to comply with all requirements with regard to proprietary and similar rights in and to any intellectual property (including any requirement to enter into a separate license agreement and prohibitions against duplicating or disclosing the same), even if “EVCP” has broken the seal on any “shrink wrapped” software. If “CUSTOMER” provides “EVCP” with any intellectual property, “CUSTOMER” warrants that it has all necessary legal rights to such property. “CUSTOMER” will indemnify “EVCP” against and hold it harmless from any and all liability, cost or expense arising from a breach or purported breach of the requirements described in this section.
In order to defray the cost of “CUSTOMER” account administration, any credit balance or other sum owed to “CUSTOMER” which remains unclaimed by “CUSTOMER” for a period of twelve months will become the property of “EVCP”.
All sales, use, excise or similar taxes or charges-applicable to the sale or use of any product or the furnishing of any products and/or service shall be the ““CUSTOMER”’s” responsibility, and “CUSTOMER” will indemnify “EVCP” against any liability hereunder. The “CUSTOMER” must pay these amounts unless the “CUSTOMER” provides “EVCP” with a tax exemption certificate acceptable to the taxing authority.
When F.O.B. Shipping Terms apply, “EVCP” will add to the purchase price the amount of any present import duty to the manufacturer’s goods under this “Agreement”.
When EXW Shipping Terms apply, the “CUSTOMER” must provide “EVCP” with method of transportation and details to ship product accordingly.
Unless otherwise defined, all domestic sales by “EVCP” are F.O.B. “EVCP” shipping place, as defined by INCOTERMS 2000 and Uniform Commercial Code.
Unless otherwise defined, all international sales by “EVCP” are Ex Works (EXW) “EVCP”, as defined by INCOTERMS 2000 and Uniform Commercial Code.
Risk of loss or damage to products shall pass to “CUSTOMER” upon delivery to the first carrier or “CUSTOMER’s” representative. Apparent shortage or visual damage to shipping containers by the carrier must be noted on both consignee’s and carrier’s delivery receipt or record. Concealed damaged condition shall also be noted on the carrier’s delivery receipt or record. The carrier’s local office and “EVCP” should be notified of the condition immediately, but no later than 15 days after the date of delivery for preparation of an inspection report by “CUSTOMER” to support a possible claim.
Unless specifically agreed in writing by “EVCP” and “CUSTOMER”, all equipment, tools, designs, technical data, and software produced, acquired, or used by “EVCP” for this “CUSTOMER” are the property of “EVCP”.
“EVCP” provides commercial packing, packaging, and testing at the quoted prices. Any additional requirements, including without limitation “CUSTOMER’s” inspection, are at “CUSTOMER’s” expense.
The goods under this agreement are furnished with commercial inspection standards at the place of manufacture. If “EVCP” and “CUSTOMER” agree that “CUSTOMER” is to inspect at the place of manufacture, that inspection may not interfere unreasonably with “EVCP’s” operations, and the “CUSTOMER” must accept or reject the goods before shipment.
“CUSTOMER” will promptly notify “EVCP” of nonconformance in the goods and give “EVCP” a reasonable opportunity to inspect the goods. No goods may be returned without “EVCP’s” written authorization.
Failure to follow “EVCP’s” return procedures could result in lost goods, delays, additional service charges, warranty denial, or refusal of a shipment. “CUSTOMER” must mark all goods returned to “EVCP” with a return authorization (RA) number furnished by “EVCP”. The RA number must appear on the shipping label and all paperwork associated with the return.
Granting a return authorization does not mean that a credit will be approved or that the evaluation or repair will take place without charge. “EVCP” may, at its sole discretion, agree to allow “CUSTOMER” to return products for credit subject to a minimum 35% restocking charge, if applicable, which “CUSTOMER” agrees to pay. No returns may be made for any reason without a Return Authorization form issued by “EVCP”. If “CUSTOMER” refuses to accept tender or delivery of any products or returns any products without authorization from “EVCP”, such products will be held by “EVCP” awaiting “CUSTOMER´s” instruction for 20 days, after which “EVCP” may deem the products abandoned and dispose of them as it sees fit, without crediting “CUSTOMER´s” account.
Returned items must be in the original shipping containers. Any custom demo/sample purchases, or any other items considered custom is not returnable for credit. Any products made specific for a customer project will be considered custom is not returnable for credit.
“EVCP” will not be liable for any failure or delay in its performance or in the delivery or shipment of products, or for any damages suffered by “CUSTOMER” by reason of such failure or delay, when such failure or delay is caused by, or arises in connection with, any fire, flood, accident, riot, earthquake, severe weather, war, governmental interference or embargo, strike, shortage of labor, fuel, power, materials or supplies, delay in delivery by “EVCP”’ suppliers or any other cause or causes beyond “EVCP´s” reasonable control. “EVCP” reserves the right to cancel without liability any order, the shipment of which is or may be delayed for more than 30 days by reason of any such cause. “EVCP” reserves the right to allocate in its sole discretion among “CUSTOMER’s” or potential “CUSTOMER’s”, or defer or delay the shipment of, any product which is in short supply.
UNAUTHORIZED RETURNS WILL NOT BE ACCEPTED AND WILL BE RETURNED TO SENDER AT THEIR EXPENSE.
If “EVCP” determines that the goods are not covered by warranty (see Section 10, Limited Warranty), a purchase order for “EVCP’s” usual charges must be received before repair or replacement. “EVCP” reserves the right to dispose of the goods if the “CUSTOMER” does not promptly pay the evaluation fee and related charges.
“EVCP” shall have no duty to stock or provide spare or replacement parts or products. “EVCP” may modify or discontinue any product or line of products at any time without liability except to refund any amounts already paid for any such products which have been ordered but not yet delivered.
Shipping dates and lead-times are approximate and require prompt receipt of all necessary information from “CUSTOMER”. If delays arise, “EVCP” will notify “CUSTOMER” and “EVCP” will not be liable for any damages (liquidated or otherwise), re-procurement costs, cover, or penalties. “EVCP” is not liable for delays due to International Holidays, weather conditions, acts of God, acts of civil or military authorities, fires, strikes, job actions, floods, earthquakes, epidemics, quarantine restriction, war, terrorism, riot, customs hold, supplier or vendor delays , or any other causes beyond the reasonable control of “EVCP”. In the event of delay, “EVCP” will reschedule delivery for a period that accounts for the time lost because of the delay. If an excusable delay under force majeure continues for more than 6 months, “EVCP” and “CUSTOMER” each may cancel the affected purchase orders under Section 9, Termination, Change, Refusal and Suspension of Orders.
If “EVCP’s” production is reduced for any of the above reasons so that “EVCP” does not deliver the full amount ordered, “EVCP” may allocate production deliveries among its various “CUSTOMERs” then under contract for similar goods. The allocation will be commercially fair and reasonable and “EVCP” will notify “CUSTOMER” of the estimated quota made available.
Termination of Order, “CUSTOMER” may request to terminate order for convenience in whole or part and “EVCP” agrees to cooperate with “CUSTOMER” to arrange a termination plan subject to “CUSTOMER” paying for deliveries made, full direct, and indirect costs, settlements with suppliers, related administrative, accounting, and legal costs and fees, plus a normal profit. Termination request will not be effective unless “EVCP” consents in writing to the termination.
Change of Order: “CUSTOMER” may request Change of Order in writing within (10) days after the order is placed. Change request will not be effective unless “EVCP” consents in writing to the change. The delivery schedule must be modified in writing to account for the Change of Order, and an equitable adjustment will be made in the price if “EVCP’s” costs increase because of the Changes.
Refusal of Order: If “CUSTOMER” refuses delivery within ten (5) days of shipment, then “CUSTOMER” will be responsible for all related charges. If any termination, change or refusal of order causes an increase or decrease in the cost of, or in the time required for, performance of an order, an equitable adjustment will be made in the order’s price (direct costs, indirect costs, raw materials, stock, work-in-process, settlements with suppliers, related administrative, accounting, and legal costs and fees, plus a normal profit materials), terms, delivery schedules, and released shipments which “EVCP” or its Affiliates cannot cancel without liability.
“EVCP” will recognize “CUSTOMER’s” written one-time request to suspend production for a maximum of thirty (5) days after release of Order. The delivery schedule must be modified in writing to account for the production stoppage, and an equitable adjustment will be made in the price if “EVCP ’s” costs increase because of the suspension.
“EVCP” retains a purchase money security interest in all products sold by “EVCP” to “CUSTOMER”, and in the proceeds of any resale of such products, until the purchase price and any other charges due to “EVCP” have been paid in full. Upon any breach by “CUSTOMER” of these terms and conditions, “EVCP” will have all rights and remedies of a secured party under applicable law, which rights and remedies will be cumulative and not exclusive. “CUSTOMER” is responsible for all costs and expenses incurred by “EVCP” in collecting any sums owing by “CUSTOMER” (which may include, but are not limited to, collection agency and reasonable attorneys´ fees). “EVCP” shall have the right to offset any sum owed by “EVCP” to “CUSTOMER” against any sum owed by “CUSTOMER” to “EVCP”.
“EVCP” warrants those products assembled or customized by OEM manufactures against defects caused solely by faulty assembly or customization for 5 days after receipt of delivery, unless otherwise specified or negotiated, from the date of original shipment from Suppliers of products, manufacturing, assembled or customized will follow manufacturers warranties and “EVCP” will support resolution of any defects caused solely by faulty assembly or customization for 5 days after receipt of delivery, unless otherwise specified or negotiated, from the date of original shipment F.O.B. All other products, and the components and materials utilized in any assembled or customized products, are covered by, and subject to, the terms, conditions, and limitations of the “EVCP” and/or manufacturer´s standard warranty, which warranty is expressly in lieu of any other warranty, express or implied, of or by “EVCP” or the manufacturer.
If “CUSTOMER” finds any defects in material or workmanship, “CUSTOMER” will promptly notify “EVCP” in writing of the defective goods and the specific nature of the defect.
“EVCP” at its sole discretion will repair or replace any such goods found by “EVCP” to be defective after authorized return by “CUSTOMER”. “CUSTOMER” will return defective goods, with transportation and insurance prepaid, in accordance with instructions issued by “EVCP” under Section 6, Return Authorizations. “EVCP’s” warranty does not apply to any goods that have been subjected to improper installation, misuse, alteration, repair, neglect, accident, inundation, fire, or the like. “EVCP” and manufacture bear no responsibility for cost associated with labor for product installation, replacement, lift equipment, site delays, etc.
“CUSTOMER” acknowledges that except as specifically set forth or referenced in this paragraph, THESE EXPRESS WARRANTIES, INCLUDING REMEDIES, ARE EXCLUSIVE AND ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. “EVCP” DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, IN ADVERTISING MATERIALS, BROCHURES, OR OTHER DESCRIPTIVE LITERATURE) BY “EVCP” OR ANY OTHER PERSON, EXPRESS OR IMPLIED, AS TO THE CONDITION OR PERFORMANCE OF ANY PRODUCTS, THEIR MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE.
FOR GOODS MADE BY OTHERS, “EVCP” MAKES NO WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FREEDOM FROM PATENT INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. THE ORIGINAL MANUFACTURER MAY WARRANT THESE GOODS.
THERE ARE NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OR MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. “EVCP” ASSUMES NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR MANUFACTURER’S PRODUCT SPECIFICATIONS OR THE PERFORMANCE OR ADEQUACY OF ANY DESIGN OR SPECIFICATION PROVIDED TO “EVCP” BY OR ON BEHALF OF “CUSTOMER”.
Except for the warranty coverage referenced in the paragraphs, above, NEITHER “EVCP” NOR ITS SUPPLIERS WILL HAVE ANY LIABILITY OR OBLIGATION TO “CUSTOMER” OR ANY OTHER PERSON FOR ANY CLAIM, LOSS, DAMAGE, OR EXPENSE CAUSED IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, BY THE INADEQUACY OF ANY PRODUCTS FOR ANY PURPOSE, BY ANY DEFICIENCY OR DEFECT IN ANY PRODUCT (WHETHER OR NOT COVERED BY ANY WARRANTY), BY THE USE OR PERFORMANCE OF ANY PRODUCTS OR BY ANY FAILURE OR DELAY IN “EVCP” PERFORMANCE HEREUNDER, OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY OR LOSS OF BUSINESS OR PROFIT, WHETHER OR NOT “CUSTOMER” WILL HAVE INFORMED “EVCP” OF THE POSSIBILITY OR LIKELIHOOD OF ANY SUCH DAMAGES.
The performance of any value-added service by a third party may void the manufacturer´s warranty and render products nonreturnable. Orders incorporating such services are, accordingly, non-cancelable and the products are nonreturnable. Any third-party value-added service provider is deemed to be an agent of “CUSTOMER”.
Each party will hold harmless and indemnify the other party against all claims, judgments, costs and fees, including attorney fees, relating to infringement of U.S. patents, designs, copyrights, or trademarks to the extent that the infringing goods are manufactured, sold, and used in whole or in part to the indemnifying party’s specifications.
To the extent that one party’s employees or agents enter on the property owned or controlled by the other party, the first party will hold harmless the other party, its officers, directors, and employees for any property damage or personal injury or death caused by the first party’s employees or agents.
In all cases, “CUSTOMER” will hold harmless and indemnify “EVCP” against all claims, judgments, costs and fees, including attorney fees relating to actions initiated and claims made by third parties for property damage and personal injuries, including death, when any product made pursuant to this Agreement is manufactured in whole or in part to “CUSTOMER’s” designs. Provided, however, indemnification and hold harmless does not apply where the product defect is caused solely by a manufacturing process, assembly operation, or the negligence of “EVCP”.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS ORDER, UNDER NO CIRCUMSTANCES IS EITHER PARTY LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, COINCIDENTAL, MULTIPLE, ADMINISTRATIVE, OR PUNITIVE DAMAGES, OR ANY DAMAGE OF AN INDIRECT OR CONSEQUENTIAL NATURE ARISING OUT OF OR RELATED TO ITS PERFORMANCE UNDER THIS CONTRACT, WHETHER BASED UPON BREACH OF CONTRACT, WARRANTY, OR NEGLIGENCE AND WHETHER GROUNDED IN TORT, CONTRACT, CIVIL LAW, OR OTHER THEORIES OF LIABILITY, INCLUDING STRICT LIABILITY, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. “EVCP’s” TOTAL LIABILITY INCLUDING BUT NOT LIMITED TO LIABILITY FOR INDEMNITY, DEFENSE, AND HOLD HARMLESS OBLIGATIONS DOES NOT EXCEED THE AMOUNT PAID TO “EVCP” UNDER THIS ORDER AND “CUSTOMER” AGREES TO INDEMNIFY “EVCP” FOR ANY AMOUNTS IN EXCESS. TO THE EXTENT THAT THIS LIMITATION OF LIABILITY CONFLICTS WITH ANY OTHER PROVISIONS OF THIS CONTRACT, THOSE PROVISIONS ARE AMENDED AS REQUIRED TO MAKE THEM CONSISTENT WITH THIS LIMITATION OF LIABILITY.
Any action for breach of this contract must commence within six (6) months after the cause of action has accrued.
This agreement shall be governed by the laws of the State of Michigan. “CUSTOMER” consents to personal jurisdiction over it with respect to any dispute arising hereunder in the courts of the State of Michigan (without regard to the conflicts of law provisions thereof). Any suit, action or proceeding to enforce rights under these Terms and Conditions or any related Order Confirmation may be brought only in the United States District Court for the Western District of Michigan in Lansing or the Superior Court of the State of Michigan. The parties irrevocably submit to the personal and subject matter jurisdiction of such courts with respect to any dispute relating to these Terms and Conditions and/or any related Order Confirmation, and the parties expressly waive their respective rights to have any such action tried by jury.
In the event that one or more provisions of this Agreement is held to be unenforceable, the remaining provisions apply in full and the invalid or unenforceable provision will be replaced by a provision which lawfully enforces the parties’ intention underlying the invalid or unenforceable provision.
“EVCP” is committed to uncompromising ethical standards, strict adherence to law and to “CUSTOMER” satisfaction. We encourage you to communicate concerns, as well as ask questions, about ethics and values to the “EVCP” Managing Director.
This “Agreement” is the final, complete, and exclusive statement of the agreement between “EVCP” and the “CUSTOMER”. This “Agreement” supersedes all previous and contemporaneous understandings or agreements. This “Agreement” may be amended or modified only in writing by authorized representatives of “EVCP”. This document, and not any purchase order or other “CUSTOMER” document (which, if construed to be an offer is hereby rejected), will be deemed an offer or counteroffer and is a rejection of any other terms or conditions. “CUSTOMER”, by accepting any products, making any payments or ordering any products having previously received these terms and conditions, will be deemed to have assented to these terms and conditions, notwithstanding any terms contained in any prior or later communication from “CUSTOMER” and whether or not “EVCP” will specifically or expressly object to any of “CUSTOMER´s” terms. “EVCP” ´s failure to object to any document, communication or act of “CUSTOMER” will not be deemed a waiver of any of these terms and conditions. Any addition or change to these terms and conditions must be specifically agreed to in writing by a duly authorized officer of “EVCP” before becoming binding on “EVCP”.
The following Payment Terms are reflective of any orders if Financing is not of interest or “CUSTOMER” financing has been denied. All project funds must then be escrowed to guarantee capability to fund a total project.
Progressive Payments Details/Schedule:
Part 1 (Power Generation/Power Cabinet/Dispenser/Ports)
Part 2 (Design/Engineering/Install/Commissioning/Warranty/Shipping/Taxes/Duties)
I have read and understood and will abide by the Terms and Conditions of Sale as described above. Confirmation of acceptance will be the signed Equipment and Installation Agreement for Electric Vehicle Supply Equipment.