Terms and Conditions

PURCHASE TERMS AND CONDITIONS

THESE TERMS OF PURCHASE (the “Terms”) govern the purchase by Buyer and sale by EPHOCA of Goods, as described more fully in the accompanied Purchase Order. By placing an Order and EPHOCA’s issuance of a Purchase Order that references these Terms, the Customer agrees to these Terms and intends to be legally bound thereby. 

IN CONSIDERATION OF THE MUTUAL PROMISES SET FORTH BELOW and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

  1. Sale of Goods: Seller shall sell to Buyer and Buyer hereby agrees to purchase from the Seller the Goods, in the quantities stated in the Purchase Order for the total sum delineated in the accompanied Purchase Order of  %SO_Total%  (the “Contract Price”). All taxes are included in the Contract Price. 

Transportation costs, shipping charges and the delivery of the Goods thereof are not included in the Contract Price. Buyer is responsible for arranging shipping from our US Warehouse located at 2255 Progress Drive Springfield, OH 45505 to the Building. At Buyer’s written request, Seller can arrange for shipping for an additional cost to be determined at the time of shipping. 

Buyer is to confirm upon receipt of the Goods that the quantity received matches the amount stated in the Purchase Order. Please let your sales representative know if you have any questions or need to make changes.

  1. Fees and Payment Terms:
  2. All payments are to be made via bank wire to: 

Ephoca, Inc.

1111 Superior Ave, Suite 610 Cleveland, OH 44114 (216) 710-1000

Dime Community Bank

ACH and Bank Wire Routing: 021406667 Account Number: 5000256254

Payments may be made by credit card as well, with a 3% processing fee.

  1. Unless otherwise agreed, the Payment Terms are as follows:

25% non-refundable deposit upon placing the Order,

50% 30 days prior to manufacturing,

25% 10 days prior to shipping or pickup.

  1. Orders will be delayed if payment is not made on time. If the final 25% payment referenced above is not made within ten (10) days prior to delivery and/or pickup, storage fees will begin to accrue at $5 per pallet per day. Within ten (10) days following the disbursement of the full amount due to Seller hereunder, upon written request, Seller shall furnish Buyer with an unconditional final lien waiver, in the form satisfactory to Buyer.
  2. 3. Deductions and Set-off: Buyer shall have no right of deduction or set off against sums due Epocha for Goods which have either been delivered or which Ephoca has undertaken to deliver.
  3. 4. Ready for Pickup or Delivery:  Seller shall commence (or authorize the commencement of) production of the Goods, so as to cause the Goods to be completed and are ready for Pickup on or before the requested Delivery Date, unless a different date is specified by Buyer by notice to Seller. By acceptance of the Terms and Conditions, Seller confirms that the Delivery Date is a reasonable date for the Goods to be ready for Pickup.
  4.   Pallet Requirements: If your facility cannot accept HVAC units 84 inches high, you must notify Ephoca within 30 days of placing the order. In the event the items must be repacked, a fee of $53 per pallet will be added.

  1. Ephoca Coordinated Delivery Option: If the Buyer chooses this option Ephoca will fully    

       coordinate all shipping and insurance to the Buyer’s Building. The price for such service will be  

       determined when the Goods are ready and agreed upon in writing by the Customer.

The following items below may incur an additional cost if Ephoca is charged by the carrier.

  1. The inability of the customer to accept goods upon delivery. In such instances, carrier-imposed storage will apply after three (3) days. Customers must notify Ephoca in advance of any restrictions to avoid unexpected charges. 
  2. A carrier is unable to complete the delivery due to customer-related issues and the delivery must be rescheduled.
  3. If the destination listed for delivery lacks a loading dock and Ephoca is not informed at the time of Order.
  4. The Customer reschedules delivery after the Goods are shipped but not yet delivered to the designated delivery location.

 

Customers using their own carriers must collect goods within 14 days of written notification by the Seller that the goods are ready for pickup and must provide proof of insurance for the full value of the Purchase Price listing the Seller as an additional Insured. Starting on the 15th day, uncollected goods will incur a fee of $5 per pallet per day. The failure to keep the Unit(s) upright during transport or the mishandling of the Goods by the Buyer or their agents or the puncture or removal of protective packing materials will void Ephoca’s warranties. 

Customers must schedule pickup with at least two (2) days advance notice and a pickup window to facilitate a smooth transfer. A BOL (Bill of Lading) must be sent in advance or presented at Pickup.

 Title to, interest in and risk of loss (regardless of cause) of the Goods will pass to Buyer only upon full payment of the Purchase Price.

  1. Damages in Shipment: To ensure a smooth claims process, please inspect all packaging immediately upon delivery. If your units have been received on their side, or if you notice any visible damage, please take the following steps:

  1. Notify our Claims Department via email at [email protected] within three (3) days of receipt, as many carriers have strict deadlines for reporting damage. 
  2. For each damaged unit, provide the following: 
    1. Clear pictures of the damage to the unit;
    2. Photos of the damage to the packaging;
    3. A picture of the serial number on the damaged package;
    4. Retain the damaged units until you receive further instructions from Ephoca.
  3. Failure to follow these steps will result in a void warranty and may result in the inability to process the claim or replace the damaged units at no cost to the customer. 

  1. Seller’s Right to Reject, Rescind or Cancel: Ephoca shall have the right to rescind all or    part of any offer, order or this Agreement if: (a) the Buyer breaches or fails to perform any of its obligations under this contract; (b) Buyer becomes insolvent; (c) proceedings are instituted by or against Buyer under any federal or state, bankruptcy or insolvency laws; (d) Buyer ceases operations; or (e) Ephoca determines in its sole  discretion that it elects to reject, cancel or rescind the purchase. 
  2. Buyer’s Right to Cancellation: Once the order is placed it becomes non-refundable.
  3. Returned Goods. No returned Goods from any source will be accepted by Ephoca without prior written approval, together with shipping instructions from the Buyer. If permission is granted, the returned Goods will be subject to a 25% handling charge, plus all freight costs.
  4. Shortages: All claims for shortages must be made in writing within 30 calendar days of the date of delivery. 

  1. Resale of Goods: Buyer agrees that it shall only sell and or install Seller’s products in applications expressly approved in writing by Seller. Buyer agrees to notify Seller when Ephoca’s products are installed so that an Ephoca approved technician can be sent to certify the installation. Furthermore, Buyer agrees that it shall advise the end-user not to use the product until such time that an Ephoca technician has visited the location and certified the product.

  1. Representations; Condition and Acceptance of Goods: Seller represents and warrants that (i) Seller is the legal owner of the Goods, (ii) Seller has the right to sell the Goods, (iii) Seller will warrant and defend the title of the Goods against any and all claims and demands of all persons, (iv) the Goods will be fit for the purpose for which such Goods are ordinarily intended and meet all local, city, state and federal requirements, (v) the Goods are now free and at the time of delivery will be free from any security interest or other lien or encumbrance, except the security interest created in this Agreement until Seller is paid in full, (vi) the Goods will be delivered free of the rightful claim of any person arising from patent or trademark infringement, and (vii) the Goods are new, previously unused items, and as of the exact specification as set forth in Schedule A, without substitution, and shall conform to the requirements of this Agreement. Following delivery of the Goods to the Building, Buyer shall notify Seller of any missing, damaged, non-conforming, and/or defective Goods. In the event of any missing, damaged, non-conforming, and/or defective Goods, Seller shall promptly provide and/or replace (as applicable) same, at no cost to Buyer. Any advance payment hereunder does not constitute acceptance, nor does it impair Buyer’s right to inspect the Goods, or any remedies available to Buyer hereunder, at law (including, without limitation, the UCC) or in equity. Seller acknowledges and agrees that the foregoing representations and warranties shall survive the inspection, testing, acceptance and/or use of the Goods by Buyer, are provided for the benefit of Buyer and its successors, assigns and end-users of the Goods, and are in addition to any warranties and remedies to which the parties may otherwise agree upon, available at law and/or in equity, or contained in any of the manufacturer’s standard product warranties that accompany the Goods. Seller shall be responsible for all liabilities, costs and expenses arising out of any failure of Seller to meet the representations and warranties contained herein. Buyer’s acceptance shall not bar Buyer from bringing claims against Seller or from remedies and damages due to Seller’s breach hereunder.    
  2. Certification of Installation: Before installing a unit, the installer must contact their Ephoca sales representative and review the installation process. The installer may not power up the unit until either the self-certification is completed and approved or there is an on-site certification by an EPHOCA certified installer. Using the unit prior to certification will void the warranty.

Self-Certification Requirement: Self-certification photos must be submitted to Ephoca at [email protected]. Warranty activation requires review, approval, and issuance of a certification.

  1. Warranty Validity: On-site warranty is only valid on orders of 10 or more units and with a minimum of 3 spare units or 1.5% of the order, whichever is greater. For orders under 10 units, the warranty is limited to shipping the damaged unit to our repair facility for repairs with all shipping costs borne by the Customer. 

During the Warranty Period discussed below, the warranty will only be valid if the units are maintained in accordance with the User Manual and the unit is sized correctly for the room it is installed in.

Using the system with non-compliant or non-certified Louvers will void the warranty. Louvers are sold separately. It is critical that you discuss with your Ephoca representative the particular louvers or venting system you plan to use before installing the units. Many louvers require mounting templates that are different from what will be inside the package of the heat pump.

  1. Warranty Period: Seller’s Warranties hereunder shall be in full force and effect for a period of: (a) two (2) years as to labor; (b) four (4) years as to parts; and (c) ten (10) years as to the compressor included in the Work; all of which are measured from the date on which the Goods are installed or placed in use of operation, whichever date is the later, or for such longer period as may be stated in Seller’s standard warranty, if any, or for such longer period as required by any Exhibits annexed hereto, or for such longer period as may be permitted by law.. The applicable Warranty Period shall commence on the date that the Goods are delivered to the Building. If the Goods fail to perform as warranted during the applicable Warranty Period, which is one year for parts and labor, and ten years for compressor parts, Seller will repair or replace such Goods (or relevant portion thereof) within ten (10) business days following notice of such failure, at no additional cost to Buyer. If Seller is unable to repair the Goods within such ten (10) business day period, then Seller will replace the defective Goods at no cost to Buyer. Notwithstanding the foregoing, if such repair or replacement cannot reasonably be completed within such ten (10) business day period, then provided Seller commences or causes such repair or replacement to commence within such period and thereafter diligently pursues the completion of the same, Seller shall have a reasonable additional period to complete such repair or replacement, not to exceed ten (10) business days in any instance, unless otherwise agreed to by Buyer in Buyer’s sole but reasonable, good faith discretion. Any such replacement will carry the greater of the remaining balance of the applicable Warranty Period on the defective item or thirty (30) days. 
  2. Limitations on Warranties: SAID EXPRESS WARRANTIES ARE THE SOLE WARRANTES PROVIDED AND EPHOCA HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. 
  3. Limitation of Actions: No action arising out of or relating to this Agreement or the transactions it contemplates may be commenced against the other party hereto more than 12 months after the basis for such claim could reasonably have been discovered.
  4. Limitation of Liability: To the fullest extent permitted by law, Ephoca disclaims and shall have no liability as a result of representations and warranties related to the product purchased, except as otherwise expressly provided herein. In no event shall Ephoca be liable for indirect, special, incidental, or consequential damages arising out of its obligations under these Terms. 
  5. Security Interest:Seller retains a security interest in the Goods until payment in full for the Goods has been received by Seller. 
  6. Governing Law; Designation of Forum; Interpretation: If applicable, the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The laws of the State of Delaware (without giving effect to its conflicts of law principles), including, without limitation, the Uniform Commercial Code (the “UCC”) as adopted, govern all matters arising out of or relating to this Agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, validity, performance (including the details of performance), and enforcement. A party bringing a legal action or proceeding against the other party arising out of or relating to this Agreement or the transactions it contemplates must bring the legal action or proceeding in any court of the State of Delaware. Each party to this Agreement consents to the exclusive jurisdiction of the courts of the State of Delaware and its appellate courts, for the purpose of all legal actions and proceedings arising out of or relating to this Agreement or the transactions it contemplates. All rights granted to Ephoca herein shall be in addition to and not in lieu of Seller’s rights by operation of law. No modification of this Agreement or any other provision of the contract shall be valid unless in writing and signed by an authorized representative of the Seller. Should any of this Agreement or any other provision of the Agreement be declared by a court of competent jurisdiction to be invalid, such judgment shall have no effect on the remaining provisions. This Agreement shall inure to the benefit of and be binding upon both Buyer and Seller, their legal representatives, successors and assigns, except as limited herein.

 

  1. Relationship: The relationship of the parties hereto is that of vendor and purchaser. Nothing in this Agreement, and no course of dealing between the parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the parties or between one party and the other party’s employees or agents. Accordingly, Seller shall not be empowered to bind Buyer in any way, to incur any liability, make any statements, representations, warranties or commitments, or otherwise act on behalf of Buyer. Each party shall be solely responsible for payment of its employees’ salaries (including, but not limited to, withholding of income taxes and social security), workers’ compensation, and all other employment benefits. The execution and delivery of this Agreement shall not be deemed to confer any rights upon, nor obligate Buyer or Seller, to any individual or entity not a party to this Agreement, except as otherwise expressly set forth herein. Any additional or different terms or conditions proposed by Buyer are objected to and will not be binding upon nor of force on or affect Ephoca unless specifically accepted in writing and signed by an authorized representative of the Seller.
  2. Assignment; Delegation: Seller may not assign any of its rights under this Agreement or delegate any performance under this Agreement, except with the prior written consent of Buyer. Any purported assignment of rights or delegation of performance in violation of this section is void. Subject to the foregoing, the terms of this Agreement shall apply to, bind, and inure to the benefit of the heirs, successors, executors, legal and personal representatives, administrators and permitted assigns of the parties, as the case may be.
  3. Customer Legal Fees: In the event of non-payment, Buyer agrees to cover all legal fees and costs incurred by Ephoca, Inc and/or its representatives, attorneys and/or collection agents as well as interest up to the maximum allowable by law in any effort to collect any balance due. If payment is not received, the Goods can be retrieved by the Seller. 
  4. Entire Agreement; Waiver; Captions:This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all other agreements, whether written or oral, between the parties. In the event of any conflict between this Agreement and any exhibit or schedule, the terms of this Agreement (exclusive of the exhibits and schedules) shall prevail. No amendment to this Agreement will be effective unless it is in writing and signed by both parties. No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving party. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision thereafter. More specifically, except as otherwise provided in the Agreement, no failure or delay of either party to exercise any right or remedy under the Agreement will operate as a waiver of such right or remedy. No single or partial exercise of any right or remedy will preclude any further or other exercise of the same or any other right or remedy, nor will any waiver of any right or remedy with respect to any circumstances be construed as a waiver of such right or remedy with respect to any other circumstances. Captions are inserted in this Agreement only as a matter of convenience and for reference, and in no way define, limit or describe the scope of this Agreement nor the intent of any provision hereof.
  5. Force Majeure: Ephoca shall have no liability or obligation to Buyer of any kind, including, but not limited to, any obligation to deliver Goods as a result of causes, conduct or occurrences beyond Seller’s reasonable control, including, but not limited to, commercial impracticability, fire, flood, act of war, terrorism, civil disorder or disobedience, act of public enemies, acts or failure to act of any state, federal or foreign governmental or regulatory authorities, labor disputes, or strikes.

  1. Nonrecourse: Notwithstanding any provision in this Agreement to the contrary, no partner, officer, shareholder, trustee, member, employee, agent or representative of Buyer, nor any partner, officer, shareholder, trustee, member, employee, agent or representative of any partner or member of Buyer shall have any liability for the obligations of the undersigned under this Agreement, and Seller agrees that its recourse for any such obligations shall be limited to the equity interest of Buyer in the Building. In no event shall Buyer be liable for consequential, indirect, or special damages under this Agreement. 
  2. Effectiveness; Date:This Agreement will become effective as of the Effective Date and shall remain in full force and effect until the end of the Warranty Period, unless earlier terminated in accordance herewith or pursuant to law. It is agreed and warranted by the parties that the individuals signing this Agreement on behalf of the respective party are authorized to execute such an agreement, and no further proof of authorization shall be required. 
  3. Notices: All notices required to be given under this Agreement shall be given in writing, and sent by certified or registered mail, or overnight carrier, and shall be deemed given on the date received or the date receipt is refused. Notices to Buyer shall be sent to Buyer’s Address, Attn: Legal Department. Notices to Seller shall be sent to Seller’s Address. Either party may designate another address for notices by written notice to the other party in accordance with this Section.
  4. Severability: If any provision of this Agreement is ruled illegal or unenforceable as against any person or party, the remainder of this Agreement and the applicability of such provision to other persons or parties shall not be affected thereby.
  5. Indemnification of Customer from Infingement: To the fullest extent allowed by law, Seller shall indemnify, save harmless, and defend Buyer, and its officers, directors, managers, employees, agents, and representatives (collectively, the “Indemnitees”) from and against any and all patent or trademark infringement claims. If the use or sale of the Goods is enjoined as a result of an infringement claim, Seller shall, at its own expense, either obtain on behalf of Buyer the right to continue to use the Goods, substitute an equivalent product reasonably acceptable to Buyer in its place, or reimburse Buyer the purchase price of the affected Goods.

In no event (including, but not limited to, negligence) will Ephoca be liable to Customer or any User, whether in contract or in tort or under any other legal theory (including, without limitation, strict liability and negligence) for lost profits or revenues, loss or interruption of use, or similar economic loss, or for any indirect, special, incidental, consequential or similar damages, arising out of or in connection with the Goods.

Ephoca’s total aggregate liability arising out of or in connection with the performance or contemplated performance under an applicable Purchase Order (whether for tort (including negligence), breach of contract, breach of statutory duty or otherwise) shall in no event exceed the purchase price.

  1. Compliance with Law: Seller shall perform its obligations hereunder in full compliance with all applicable international, federal, state and local laws (including, without limitation, hazardous materials laws), ordinances, rules, regulations and orders and with the rules, regulations and orders of the local Board of Fire Underwriters and all other governmental or quasi-governmental agencies.
  2. Liens: To the extent permitted by law, Seller agrees not to file a mechanic’s lien for labor or materials provided hereunder provided that Buyer does not fail to make any payment due hereunder with respect to the same beyond the giving of notice and the expiration of a thirty (30) day cure period.
  3. Default; Termination: If (a) Seller shall fail to carry out its obligations under this Agreement, which failure continues for more than 3 days following the giving of written notice to Seller that it must cure such default, or (b) Seller files a voluntary petition for reorganization or for any arrangement under any provision of any bankruptcy code now or hereafter enacted, or if Seller makes a general assignment for the benefit of its creditors, or (c) if a receiver or trustee in an involuntary bankruptcy, or other similar officer shall be appointed to take care of all or a substantial portion of the property of Seller, Buyer shall be entitled, without further notice, to terminate this Agreement effective immediately upon notice to Seller and/or to cure such default and to set off against any payment due hereunder and/or recover from Seller the Initial Installment and/or any amounts expended by Buyer in connection with such cure and/or the amount of damages incurred by Buyer by reason of any such default by Seller. 

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SCHEDULE A

THE GOODS