Master Agreement for Terms and Conditions of Sale

Status of July 7th, 2025

The EKU Power Drives Master Agreement for Terms and Conditions of Sale (attached herein) applies to this and all other purchase orders, unless the scope of work or supply is expressly governed by a separate, currently effective written agreement duly executed by both parties.

1. Parties and Scope of Agreement

1.1 This Agreement governs the sale of products and services (collectively, the "Products and Services") by Seller to Customer as described in individual purchase orders or statements of work (each, an "Order").

1.2 The terms of this Agreement apply to all Orders unless expressly stated otherwise in a written agreement signed by both Parties.

2. Definitions

2.1 "Products" means the tangible goods manufactured or sold by Seller and supplied to Customer under this Agreement.  Products may include or utilize firmware that is required to operate and communicate with various elements of the hardware (collectively, “Firmware”). 

2.2 "Services" means the installation, maintenance, consulting, or other services that Seller performs for Customer under this Agreement or any Statement of Work.

2.3 "Deliverables" means any tangible or intangible work product, reports, documents, software, or other materials that Seller delivers to Customer in the course of performing the Services. 

2.4 "Service Levels" means the performance targets, response times, completion dates, or other measurable criteria (if any) expressly stated in an Order or Statement of Work for the Services. 

2.5 "Statement of Work" or "SOW" means a document executed by the Parties that describes in detail the scope, schedule, Deliverables, and Service Levels (if applicable) for particular Services provided by Service Provider.

3. Ordering, Delivery of Products, and Performance of Services

3.1 Customer shall submit Orders or SOWs in writing, specifying the Products and/or Services desired, any Deliverables, delivery or performance dates, and other relevant details.  For any respective Order to be effective or binding, Seller must provide written acceptance for such Order. Any terms or conditions contained in a Purchaser Order which attempt to alter or differ from those contained in this Agreement shall be of no effect. In the even of a conflict in terms between any Order and this Agreement, the terms of this Agreement will control.

3.2 For Products, Seller will use commercially reasonable efforts to meet the delivery dates specified in the Orders. Delivery terms shall be FOB Seller’s facility (Incoterms 2020), and risk of loss or damage shall pass to Customer immediately upon Seller’s tender of the Products to the first carrier at Seller’s facility. 

3.3 Title to all Products shall remain with Seller, and Seller shall retain a purchase money security interest in the Products, any replacements, and the proceeds thereof, until Seller has received payment in full of all amounts owed by Customer, at which time title shall pass to Customer. Customer agrees to execute any documents and take any actions reasonably requested by Seller to perfect or protect this security interest. 

3.4 Partial shipments are permitted. Delay in delivery of any installment shall not relieve Customer of its obligation to accept remaining deliveries. 

3.5 Acceptance of Services, Deliverables, and Products. Unless different acceptance criteria or periods are specified in an applicable Order or SOW, Customer shall have five (5) business days after Seller’s completion of the Services or delivery of any Deliverable to notify Seller in writing of any material non-conformity. If Customer fails to provide such notice within that period, the Services and Deliverables shall be deemed accepted. Customer’s sole remedy for non-conforming Services or Deliverables shall be the re-performance of the affected Services or correction or replacement of the Deliverable, at Seller’s option.

3.6 Change Requests. Any change to the scope, schedule, or Service Levels of the Services must be agreed in a written change order signed by both Parties. Seller shall be entitled to an equitable adjustment in price and/or schedule to account for any approved change.

4. Pricing and Payment Terms

4.1 Prices for Products and Services are as stated in the applicable Order and shall be irrevocable once the Order is accepted by Seller. Unless otherwise specified, prices are exclusive of taxes, duties, shipment, or any applicable tariffs that may be assessed upon Products, all of which shall be paid by Customer. 

4.2 Customer shall pay each undisputed invoice within fifteen (15) days from the invoice date, without set-off or deduction. 

4.3 Any amount not paid when due shall accrue interest at the lesser of (a) one and one-half percent (1.5%) per month or (b) the maximum rate permitted by applicable law, calculated daily and compounded monthly.    

4.4 If any payment is past due for more than ten (10) days, Seller may, upon written notice, suspend performance, withhold additional shipments, and/or require cash in advance until all outstanding amounts, including interest and fees, are paid in full. 

4.5 Customer shall reimburse Seller for all reasonable costs of collection, including attorneys’ fees, incurred in recovering any past-due amounts. 

4.6 All payments shall be made in U.S. dollars by wire transfer or another method acceptable to Seller. 

4.7 Milestone or Time-and-Materials Billing. Unless expressly stated as fixed price in the applicable Order or SOW, Services shall be provided on a time-and-materials basis at Seller’s then-current rates, and Seller may invoice Customer monthly in arrears for Services performed and expenses incurred.

5. Warranties and Disclaimers

5.1 Seller warrants solely to Customer that the Products will, at the time of shipment, materially conform to Seller’s published specifications or documentation and will be free from material defects in material and workmanship for a period of ninety (90) days from the date of shipment (the “Warranty Period”). 

5.2 Seller’s entire liability and Customer’s exclusive remedy for breach of the foregoing Product warranty is, at Seller’s option, repair or replacement of the non-conforming Product or refund of the purchase price paid for such Product. All returned Products must be accompanied by a return material authorization number issued by Seller. 

5.3 Services Warranty. Seller warrants solely to Customer that the Services will be performed in a professional and workmanlike manner consistent with generally accepted industry standards for similar services. 

5.4 Exclusive Remedy for Services. Customer’s exclusive remedy and Seller’s entire liability for breach of the Services Warranty shall be, at Seller’s option, (a) re-performance of the non-conforming Services, or (b) refund of the portion of the fees paid that are attributable to the non-conforming Services. 

5.5 WARRANTY DISCLAIMER: EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5 WITH RESPECT TO PRODUCTS AND SERVICES, SELLER MAKES NO OTHER WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, AND SPECIFICALLY DISCLAIMS, AND CUSTOMER WAIVES ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES ARISING FROM USAGE OF TRADE OR COURSE OF DEALING.

6. Limitation of Liability and Waiver of Certain Damages

6.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS OR REVENUES, LOSS OF USE, OR LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

6.2 SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY ORDER, REGARDLESS OF THE THEORY OF LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO SELLER FOR THE SPECIFIC PRODUCT(S), SERVICE(S), AND/OR DELIVERABLE(S) GIVING RISE TO THE CLAIM DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT FROM WHICH THE LIABILITY AROSE.

6.3 THE LIMITATIONS IN THIS SECTION 6 SHALL NOT APPLY TO THE EXTENT OF SELLER’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.

7. Intellectual Property

7.1 Seller shall exclusively own and retain all rights, title, and interest in and to all intellectual property, including but not limited to copyrights, patents, trade secrets, trademarks, and any other proprietary rights, in and to the Products and Services, including all Deliverables and Firmware, whether pre-existing, developed independently, or created in connection with the performance of the Services under this Agreement. This includes all designs, specifications, software, documentation, processes, methodologies, know-how, and any derivatives or modifications thereof.  Nothing in this Agreement shall be construed to transfer or assign any intellectual property rights to Buyer. Buyer shall acquire no ownership interest or rights of any kind in the Deliverables or any other intellectual property of Seller, except for a limited, non-exclusive, non-transferable license solely to use the Deliverables for Buyer’s internal business purposes, subject to full payment and strict compliance with this Agreement. 

7.2 Customer shall not attempt to reverse engineer, decompile, or disassemble any element of the Products or Services, including Firmware provided under this Agreement.  Additionally, Customer shall not alter, repair, modify, or create derivative works of any Products or Services without Seller’s prior written consent. Unless at Seller’s direction, any unauthorized modification, repair, or alteration of the Products or Services shall void all warranties and Seller shall have no liability for any resulting damages or claims arising under Customer’s breach of this paragraph.

7.3 License to Deliverables and Firmware. Subject to Customer’s full payment of all amounts due under this Agreement, Seller grants to Customer a non-exclusive, non-transferable, revocable license to use the Deliverables, including any Firmware provided with or embedded in the Products sold under this Agreement, solely for Customer’s internal business purposes in connection with the operation of the Products. This license does not include any right to sublicense, distribute, reverse engineer, or modify the Deliverables or Firmware. No other rights or licenses are granted by implication, estoppel, or otherwise.  This license terminates immediately upon Customer’s breach of Section 7 or Section 9 of this Agreement.

7.4 All rights not expressly granted herein are expressly reserved by Seller.

8. Indemnification. 

Customer shall defend, indemnify, and hold harmless Seller and its affiliates, and their respective directors, officers, employees, and agents, from and against any and all claims, suits, liabilities, damages, losses, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to (i) Customer’s combination of the Products, Services, or Deliverables with other products or systems, modification of the Products, Services, or Deliverables, or use of the Products, Services, or Deliverables for any purpose not expressly authorized by Seller; (ii) Customer’s breach of any term of this Agreement; (iii) Customer’s negligence, willful misconduct, or violation of applicable laws; and (iv) any claim that the use, resale, or export of the Products, Services, or Deliverables by Customer infringes the rights of any third party, except to the extent such claim is solely attributable to the unmodified Products, Services, or Deliverables as supplied by Seller.  The limitation of liability described above shall serve to limit Customer’s indemnity obligations in any way.

9. Confidentiality

9.1 Each party that receives Confidential Information from the other party (the “Receiving Party”) agrees that it shall not disclose to any third party, and shall not use for any purpose other than as necessary to perform its obligations or exercise its rights under this Agreement, any non-public, confidential or proprietary information disclosed by the other party (“Disclosing Party”), whether oral, written, electronic or other form, including, without limitation, business plans, financial data, technical information, product designs, trade secrets, and any information that is identified as confidential or that a reasonable person would understand to be confidential (“Confidential Information”). The obligations in this Section shall not apply to information that: (i) is or becomes generally available to the public through no fault of the Receiving Party; (ii) was rightfully in the Receiving Party’s possession without restriction prior to disclosure by the Disclosing Party; (iii) is rightfully disclosed to the Receiving Party by a third party without restriction; or (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.

9.2 Use and Disclosure. The Receiving Party agrees to protect the confidentiality of the Disclosing Party’s Confidential Information using the same degree of care that it uses to protect its own confidential information of similar nature, but in no event less than a reasonable standard of care. The Receiving Party may disclose Confidential Information to its employees, agents, or contractors who have a legitimate need to know such information for purposes of this Agreement and who are bound by obligations of confidentiality at least as protective as those set forth herein. Any disclosure required by law or court order shall not be a breach of this Agreement, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement (unless legally prohibited) and cooperates in any effort to seek a protective order or other remedy.

10. Term and Termination

10.1 Unless earlier terminated in accordance with this Agreement, the initial term of this Agreement shall commence on the Effective Date and shall continue for one (1) year from the Effective Date (the “Initial Term”), at which time the term of this Agreement shall automatically be extended for additional successive one-year terms (each, a “Subsequent Term,” and the Initial Term and all Subsequent Terms, collectively, the “Term”) unless, on or before ninety (90) days prior to the expiration of the then current Term, either party provides written notice to the other party of its intent to terminate its participation in this Agreement upon the expiration of such Term. 

10.2 Either Party may terminate this Agreement for a material breach by the other Party that remains uncured thirty (30) days after receipt of written notice detailing the breach; provided, however, that Seller may terminate immediately upon written notice if Customer (a) fails to pay any undisputed amount when due and such failure continues for ten (10) days after written notice, (b) becomes insolvent, files for bankruptcy, or assigns assets for the benefit of creditors, or (c) breaches Section 7 (Intellectual Property). 

10.3 Upon termination or expiration of this Agreement for any reason, (i) all outstanding Orders accepted by Seller shall remain in full force and effect and be fulfilled by Seller, and Customer shall pay all amounts owing for Services performed or Products shipped; and (ii) any provisions of this Agreement that by their nature should survive termination or expiration shall so survive, including, without limitation, provisions relating to confidentiality, intellectual property rights, indemnification, limitation of liability, and payment obligations.

11. Governing Law, Jurisdiction, and Waiver of Jury Trial

11.1 This Agreement and any dispute arising out of or related to it shall be governed by and construed in accordance with the laws of the State of Texas without regard to its conflict of laws rules.

11.2 Any controversy, claim, or dispute arising out of or relating to this Agreement, or the breach thereof, shall be brought exclusively in the state or federal courts located in Harris County, Texas. The Parties hereby irrevocably submit to the exclusive jurisdiction of such courts and waive any objection based on venue or forum non conveniens. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.

12. Miscellaneous Provisions

12.1 Assignment. Customer may not assign or transfer this Agreement or any rights or obligations hereunder without Seller’s prior written consent, and any attempted assignment in violation of the foregoing shall be null and void. 

12.2 Notices. All notices under this Agreement shall be in writing and delivered to the addresses specified above or as otherwise designated in writing by the Parties, and in the case of notice to Seller, an email copy to legal@ekupd.com.

12.3 Amendments. This Agreement may only be amended by a written document signed by both Parties.

12.4 Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings, whether written or oral, relating to its subject matter.

12.5 Execution. This Agreement may be executed in multiple counterparts, each of which shall, for all purposes, be deemed an original, but that together shall constitute one and the same instrument. A scanned, executed Agreement may serve as an original document.

12.6 Non-Solicitation. Customer shall not by itself, through its employees or through a third party, attempt to solicit or recruit Seller’s employees during the term of this Agreement and for a period of one (1) year following the termination of this Agreement.

12.7 Authority to Sign. Each Party represents and warrants that the person signing on its behalf has authority to sign this Agreement and bind the Party thereto, as of the date first written above.

13. Service Levels

13.1 Any Service Levels shall be set forth exclusively in the applicable Order or SOW and shall apply solely to the specific Services identified therein. Seller’s failure to meet a Service Level shall not constitute a breach of this Agreement unless such failure continues unremedied for thirty (30) days after Seller’s receipt of Customer’s written notice specifying the failure. 

13.2 Seller’s entire liability and Customer’s sole remedy for any failure to meet a Service Level shall be the service credits (if any) expressly stated in the applicable Order or SOW, which credits shall not exceed five percent (5%) of the fees paid for the affected Services during the month in which the failure occurred. Service credits shall be applied to future invoices and shall not be redeemable for cash.