Softub, Inc. v. Mundial, Inc. (53 F. Supp. 3d 235, 2014)

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, District Judge.

Plaintiff Softub, Inc. brought this action against Defendant Mundial, Inc. to recover damages allegedly caused , by Mundial’s sale of defective pumps to Softub for use in portable spa tubs it manufactured. The gravamen of Softub’s complaint is that Mundial marketed and sold to it a product that Mundial knew or should have known was not suitable for use in spa tubs like those manufactured by Softub, and in doing so breached various contractual obligations including warranties express and implied, in addition to making actionable misrepresentations.

In its defense, Mundial argues both that it has already satisfied all of its warranty obligations to Softub, and moreover, that as a sophisticated business entity with knowledge of spa design and manufacture, Softub bore sole responsibility for determining the fitness of Mundial’s product for its purposes. Mundial alternatively argues that Softub should have abandoned use of the pump far sooner than it did, and by continuing to purchase and use the pump despite knowledge of its high failure rate, Softub failed to mitigate its damages.

In its eleven-count amended complaint, Softub asserts claims for intentional and negligent misrepresentation (Counts I—II), breach of contract (Counts III and VIII), breach of the implied covenant of good faith and fair dealing (Counts IV and IX), breach of warranties both express (Count V) and implied (Count VI), and violation of Mass. Gen. Laws ch. 93A, § 11 (Counts VII and X). Softub seeks as damages actual and consequential damages, lost profits, and “all other financial and economic losses caused by Mundial’s breaches of express and implied warranties.” Mun-dial has asserted counterclaims against Softub alleging that Softub itself violated Chapter 93A (Counterclaim One) and improperly withheld payment for pumps which it received from Mundial (Counterclaim Two).

Following a bitterly contentious discovery period during which each party accused the other of myriad discovery violations and moved to strike much of the relevant evidence in this case on that basis, Mundial has now moved for summary judgment on all of Softub’s claims. Mun-dial additionally seeks to preclude a Softub expert from testifying at trial. Softub opposes Mundial’s motion for summary judgment and moves for partial summary judgment on Count One of Mundial’s counterclaims. I will address all outstanding motions in this memorandum.

I. BACKGROUND

The following facts' are presented in the light most favorable to Softub, reserving certain details for discussion in connection with specific issues.

Softub is á California-based manufacturer and retailer of soft-sided portable hot tubs and spas. Since 2008, all of its manufacturing and shipping operations have been located at a facility in New Bedford, Massachusetts. Mundial, Inc., based in Walpole, Massachusetts, is the United States distributor and sales and marketing arm for its Brazilian parent corporation, Mundial, S.A.

At the outset, it is necessary to distinguish between two related but distinct products implicated in this litigation: spas and whirlpool baths. Although the names are sometime used interchangeably, a spa (or hot tub) differs from a whirlpool bath substantially. Whirlpool baths are usually installed indoors, and the water .used is typically drained after each use. As a result, a whirlpool bath’s pump operates only when the whirlpool is filled with water and in use. In contrast, the water in a spa (or hot tub) is not drained and replaced between each use. This means that a spa’s pump must operate for longer durations than a whirlpool’s pump, and also must be able to withstand exposure to chemicals that are used to keep the water clean; Compared to a whirlpool, spa components must contend with a greater amount of debris in the water, including sand, dirt, lint, fibers, and organic materials such as leaves, grass and pine needles.

A. Softub’s Introduction to Mundial

In July 2005, David Hall, a sales representative for Mundial, cold-called Jeffrey Collins, Softub’s Director of Operations, to introduce Softub to Mundial’s “Syllent” brand pump. As Hall described it, the Syllent pump was an “ultra quiet ... integrated pump and motor” that used heat exchange to cool the motor and maintain water temperature. Collins, along with Softub’s President and Chief Operating Officer, Edward McGarry, met Hall in July 2005 at Softub’s headquarters in Valencia, California. McGarry and Collins showed Hall the various spas manufactured by Softub, a complete “power pack,” consisting of the pump then being used and the controls for the spa. After the meeting, Hall represented in an email to Collins that “I truly believe we have [a] product that is a perfect fit for you.”

The Syllent pump operated differently from the pumps that Softub had previously employed; instead of utilizing a separate heat-exchange coil wrapped around the motor to capture heat, its design allowed water to flow directly through the motor components. Softub, which was interested in the prospect of a quieter pump, agreed to test samples of the Syllent pump to determine if they performed adequately in Softub’s application.

Between 2005 and 2007, Hall provided several versions of the Syllent pump to Softub for testing purposes. During this period, Hall made numerous representations regarding the Syllent’s pump fitness for Softub’s spa application. In a September 6, 2005 letter communicating a per-unit offer price, Hall indicated that the pumps would carry a five-year warranty in Softub’s application. In an email dated November 1, 2005, Hall represented to McGarry and Collins that “no other pump can provide you the ability to guarantee against leaks and seal failures—our product is proven to operate in conditions of like use with your product. We are backing this up with a five year performance warranty.” Hall provided Softub with a specification sheet indicating that the Syllent pump was designed to operate in water temperatures of up to forty-five degrees Celsius, and was therefore appropriate for use in Softub spas, which typi-eally operate at between forty and forty-two degrees Celsius. Hall also represented to Collins that the Syllent pump was approved for safe operation by Underwriters Laboratory (“UL”) and provided Softub a copy of the UL report. In November 2005, in response to concerns raised by Collins about the Syllent pump’s ability to handle debris in the water, Hall stated that the pump “can handle small amounts of small debris” and that he had tested the pump himself with “handfuls of dirt and various sized grained sand used for brick mortar mix” and found “no problem with particles that got through the inlet cover jamming the pump.”

By July of 2006, Softub’s Collins had prepared a written report summarizing the results of Softub’s performance testing of the Syllent pump. Although he found the Syllent pump to be “very quiet” and capable of heating water quickly enough for Softub’s application, he identified a number of concerns with the pump based on pump failures experienced during testing. As summarized by Collins in an email to Hall, Softub experienced “issues with the rotor / impeller, potting, leaking into the electronics and the units heating up, [drawing] more power and shutting off.”

Mundial responded by arranging for Ricardo DeFacci, the pump’s inventor and an employee of Mundial’s Brazilian parent corporation, Mundial, S.A., to meet with Collins and address his concerns. In written correspondence with Softub, DeFacci blamed most of the issues on Softub’s testing process and indicated that the issues either should not arise under conditions of normal use or were simply indicative of normal wear and tear and should not be cause for concern. DeFacci further indicated that Mundial, S.A. had made a number of improvements to the pump, and specifically the rotor assembly, since Sof-tub had completed its testing. For example, DeFacci stated that ,“[t]he design of the rotor has changed: In the end of 2005, based in our tests with the hot water circulation pump, we started to produce rotors covered with a specially [sic] powder epoxi coating, more resistant for this new conditions.”

Following DeFacci’s review, Mundial’s vice president of sales, Rich Zirpolo, indicated that he would “also make available prototypes (at least) that incorporate all the changes we’re making to accommodate the needs of the U.S. market.” In separate correspondence, Zirpolo represented that “[b]ased on input from Softub, other U.S. accounts, our on-going Brazilian experience and our own product development people—the pump that rolls off the line in Brazil today is a notably different, more powerful product than the samples we sent to Softub last August.”

In October 2006, DeFacci traveled to Softub’s facility in Valencia, California in an effort to assuage any remaining concerns Softub had with the Syllent pump. Over two days, DeFacci toured the Softub facility, inspected power pack assemblies, and examined the spa application for which Softub sought to use the Syllent pump. At that time, DeFacci reiterated that recent enhancements to the pump should correct problems experienced by Softub, particularly with respect to rotor corrosion. De-Facci then indicated in a November 2006 follow-up email to Collins that since his visit to Softub, “we have been worked 100% on the rotor issue' ... [and] have found very good results and now we are preparing 10 samples ... for your field tests.”

Upon receiving the samples of the new version of the pump incorporating the new polyester electrostatic powder coated rotors, Collins tested them “simply to confirm that the performance matched that of the earlier versions [he] had previously tested.” Collins “did not undertake to independently test whether the ‘new’ pump’s various modifications, not all of which were even known to Softub, were sufficient to resolve all the concerns that the modifications were intended to address.” Nevertheless, by May of 2007, Collins was satisfied that the new version of the pump addressed the previously identified issues. In an email to Zirpolo dated June 4, 2007, Collins indicated that the rotor corrosion issue had been resolved to his satisfaction, and that DeFacci’s handling of the situation gave Softub “the necessary confidence in the ability to solve issues as they arise in the future.”

B. Softub Begins Using Syllent Pump in Spa Manufacture

By letter dated October 15, 2007, Zirpo-lo provided Softub with updated pricing information for the Syllent pump, and indicated that under new terms and conditions, all Syllent pumps would carry a three year warranty from the date of installation. On November 6, 2007, McGar-ry and Karen Dilley, Softub’s vice president of manufacturing, met with Zirpolo at Mundial’s Walpole offices to discuss the terms contained in Zirpolo’s October 15 letter and establish a plan for moving forward. At the meeting, McGarry requested that the pump’s warranty be extended to five years to meet Softub’s expectation that the pumps would operate for the lifetime of a typical Softub spa. Zirpolo acceded, and wrote in a follow-up email memorializing the terms agreed upon at the November 6 meeting that “[wjarranty on all items will be 5 years to agree with Softub’s existing product warranties.” Satisfied with the five-year warranty, Sof-tub committed to purchase a specified minimum quantity of Syllent pumps for delivery beginning in the first quarter of 2008.

On November 27, 2007, Dilley sent Zir-polo Softub’s initial purchase order for 1050 pumps for the domestic market and 1050 pumps for the export market. The reverse side of the purchase order contained boilerplate terms and conditions, including Softub’s terms for acceptance by Mundial, an indemnity provision, and a warranty provision. Zirpolo acknowledged in his deposition that he personally received this initial Softub purchase order and subsequent purchase orders, and that all such orders contained the same boilerplate terms and conditions.

After receiving a purchase order from Softub, Mundial would ship the pumps from its Walpole facility to Softub’s New Bedford facility along with a packing slip. Contemporaneously to its shipment of the pumps, Mundial would separately send invoices to Softub’s Valencia offices, which the Softub accounting department would cross-check against receipt confirmations sent from New Bedford before making payment to Mundial. Mundial’s invoices contained terms and conditions that differed from those contained in Softub’s purchase orders.

In May 2008, Softub began assembling spas using the Syllent pump. As a result of regular production line testing during assembly, Softub noticed problems with some newly-delivered Syllent pumps including leaking and cracking. When it noticed problems with a particular unit, Softub would remove the pump for return to and inspection by Mundial. In connection with these early production issues, Zirpolo gave repeated assurances to Sof-tub that “no account should receive units with either cracks or leaks,” that Mundial was taking steps to correct the issues, and that “Mundial will do everything humanly possible to make [its] products ‘perfect’ and totally reliable and thereby, hopefully, regain Softub’s confidence.”

In addition to the production line failures, Softub began to receive warranty claims from dealers and consumers concerning the Syllent pump as early as August 2008. When Softub reported these continued issues to Mundial and inquired as to whether similar issues had been reported by Mundial, S.A.’s Brazilian customers, Zirpolo responded that the “overall failure rate in Brazil and here is less than 1/10 of 1% so we don’t really hear about the whys and wherefores.” Zirpolo forwarded Softub’s concerns to DeFacci, who expressed his view (to Softub) that Softub’s continued issues with the Syllent pump must be its own fault, because “100% of the pumps are leakage tested twice (air & water) before being packed for shipment,” and Mundial, S.A. had not “see[n] this problem in Brazil or internationally,” despite having thousands of pumps in the field.

Based on input from DeFacci that “[t]here is a big difference between the typical Bath or Spas application and the Softub application,” Zirpolo suggested that problems with cracking were likely due to stress caused by Softub’s allegedly unique application. Despite taking the position that “there is no inherent defect in the material or workmanship of the covers that could explain this very random cracking,” Zirpolo agreed to credit Softub for the allegedly defective pumps. At the same time, Zirpolo stated that “we are looking to Softub for help” in resolving the ongoing issues.

In a November 21, 2008 email to Curtis McClurkin of Softub, DeFacci acknowledged that the reason cracking issues had not arisen prior to Mundial’s relationship with Softub was because “nobody in [the Syllent pump’s] market, before Softub, related it.” He continued that “[t]he main fact is that this model of pump was designed and is applied in traditional whirlpool bath tubs. In this case, different of the Softub spa, the usual sequence is: fill the tub / turn on the pump / bath / turn off the pump / drain the water. If a damage pump is running then the leakage stops. Also, small leakages, are not notice, because the pump is covered and based on the concrete.” DeFacci indicated the intention on the part of Mundial “to solve all the issues and to improve the necessar[y] changes,” in order that problem-free operation of the Syllent pump would not be “so dependent [on] the human factor.” Then, on December 9, 2008, Zirpolo wrote to Softub that “[DeFacci] contends that our latest version—with the built-in filter—will keep 99.9% of debris away from the rotor thereby eliminating failures” caused by foreign matter contacting the rotor. Zir-polo reiterated that “Syllent U.S. and Syl-lent SA are as committed as Softub is to making the Syllent pump work perfectly in the very challenging environment that spas five in. We will continue to work very hard to attain that goal.”

Throughout its relationship with Softub, Mundial repeatedly represented that the Syllent pump was-suitable for use in spa tubs. In March 2008, Zirpolo stated that the pump “as it is currently configured— will run ad infinitum with no problems. All previously identified ‘challenges’ of using this whirlpool pump in spas have been addressed to Softub’s and other manufacturers’ satisfaction.” He further stated that “[t]he Syllent pump has been being used virtually problem free in both spas and baths in Brazil for almost five years; [i]t is a very high quality piece of technology. We really have a difficult time understanding this recent round of ‘tests’ at Softub.” On June 11, 2008, Zirpolo represented that upgraded versions of the pump fitted with a filter “have been running 24x7 in water with various abrasives since Q4 2006 and have yet to show signs of wear. Life expectancy = very long.”

C. Rotor Failures

According to Softub, during 2008 and 2009, the most common complaint from Softub’s customers and dealers was that the Syllent pump would simply stop operating. Softub opened some of these failed pumps and observed that the rotors had locked-up. Softub returned the failed pumps to Mundial in exchange for credit.

In February of 2009, Mundial communicated to Softub that it had developed a solution to the rotor problem in the form of a new “Rilsan” rotor coating. In an email dated March 10, 2009, Zirpolo indicated that according to tests performed by DeFacci, the new Rilsan coating “substantially increases the rotor’s resistance to high temperatures, chemical attacks and abrasion and, in conjunction with the internal filter, should reduce the failure level exponentially” (emphasis in original). In April, Mundial’s president, Adilson Dela-torre, wrote in an email to Ed McGarry of Softub that “[w]e are convinced that the enhancements implemented in these past months, including the new coating material on the rotors and the new application process will improve the pumps’ performance dramatically.”

In April 2009, Christian Barning, the principal of Softub’s largest worldwide distributor and dealer—Lifepark GmbH in Germany—requested his own meeting with Mundial concerning the unacceptably high failure of rate of the Syllent pump. At the meeting, which occurred at Mundial’s Walpole facility, Barning warned Zir-polo and Delatorre that he would urge Softub to discontinue use of the Syllent pump unless the rotor problems and other issues were addressed immediately. Zir-polo responded by reassuring Barning that Mundial was in the process of making improvements to the rotors that would improve the pump’s performance dramatically. Shortly thereafter, when Barning visited the Mundial, S.A. headquarters while on vacation in Brazil, DeFacci assured Barning that once spas began shipping with the new Rilsan rotors, he would see a marked improvement in the failure rate. DeFacci also gave Barning several of the new rotors to use as replacements for Life-park customers.

In order to save money for both Mundial and Softub, in May 2009, Mundial instructed Softub to begin destroying all export pumps for which Softub made warranty claims, as well as all domestic pumps unless the warranty claim resulted from one of a limited number of production line failures or a previously unreported issue in the field. Under the new system, Softub would submit a manufactured date code to Mundial for each destroyed unit in exchange for a credit. Later in the Summer of 2009, Mundial modified its warranty procedure again, requesting that Softub begin returning the end caps of the failed pumps in order to receive credit. The destroy-in-field process otherwise remained in place, and Zirpolo promised that Mundial would issue any credits prior to physically receiving the end caps.

D. Electrical Failures in Export Pumps

By July of 2009, Softub had stopped using the Syllent pump in its assembly of new domestic spas, opting instead to resume use of pumps from its pre-Mundial supplier. Because the export version of the prior pump was much louder than the domestic version, Softub continued to use the Syllent pump in its export spas until it could find a suitable replacement.

Once Softub began to receive export pumps with Rilsan rotors in late Fall 2009 and early 2010, the pump failure rate decreased significantly. However, as time passed, Softub’s export customers began to experience an increasing rate of electrical failures. These electrical failures where characterized by fuse tripping, high electrical resistance and high amperage, and some failed pumps showed evidence of burning or melting. When the new issues were brought to DeFacci’s attention, he responded that “we are working on all the probabilities and performing tests on all the possible! ] solutions. We hope to have the solution asap.” Then, during a meeting with Barning in March 2011, DeFacci stated that he had found a solution to the electrical problem, which consisted of putting an insulation layer between the motor windings. He told Barning this change went into production in October 2010 and that Barning would soon see a drop in the failure rate as a result.

E. Termination of the Relationship

By an email dated May 23, 2011, Adilson Delatorre of Mundial informed Ed McGar-ry of Softub that due to the continued high failure rate of the Syllent pumps despite the number of improvements that Mundial, S.A. had implemented over the years, Mundial S.A. had ordered Mundial to stop selling pumps to Softub effective August 1, 2011. Delatorre wrote, “[a]s noted several times over the years, these pumps were designed for use in the typically benign environment of in-home whirlpool baths. In a nutshell, they cannot withstand the challenges of the 24/7 ‘spa’ world.” Dela-torre further informed McGarry that Mun-dial would no longer issue credits for failed pumps because there would no longer be any new pump orders to offset against, but instead would replace any failed pumps still within the warranty period. By the time of Delatorre’s email, Softub had begun using a new pump in its export spas.

Mundial stopped issuing credits for warranty claims as of September 9, 2011, despite Softub’s contention that there were still outstanding invoices against which it deserved to be credited. On October 11, 2011, Delatorre notified McGarry that Mundial would no longer accept warranty claims (even by replacing pumps) unless the failed pumps were returned to Mundial or otherwise inspected in order for Mundial to determine why the failure rate in Europe was “so disproportionately high.” In a separate email around the same time, Mundial’s Dave Hall remarked that the’ “volume of failures represents a significant dollar amount in credits.” He continued: “I’m not saying that the failures aren’t real; I want to insure we aren’t getting caught up with a carte blanche, unrestricted process.”

In October 2011, DeFacci and Dave Hall met Barning in Germany to examine Life-park’s failed export pumps and investigate how Lifepark documented warranty claims. Hall confirmed in his deposition that their visit revealed nothing improper about the warranty claims submitted in connection with the failed pumps. Nevertheless, purporting to question the validity of the claims, Mundial provided neither credits nor replacement pumps for the failed Lifepark pumps and has not honored any warranty claims since September 2011. In January 2012, Mundial closed the shipping account it had provided to Softub for the purpose of returning end caps in connection with warranty claims.

F. Mundial’s Knowledge About Limitations of Syllent Pump

Allegedly unbeknownst to Softub at the time, Mundial was experiencing significant failure rates of the Syllent pump in other spa applications. Hall testified in his deposition that as of 2008, Mundial was well aware that one customer, Supersplash-pools, Inc. (“Splash”), “experienced problems with the durability of the pump and rotor failures, whether it was identified by debris or whether it was identified by chemical issues.” Between 2007 and 2009, Mundial received complaints from Splash and another customer, Smartub LLC (“Smart”), about “rotors locking or otherwise not operating properly.” By October 2008, Mundial had terminated its relationship with Smart because the failure rate of the Syllent pump in Smart’s spa application exceeded twenty percent. Then, in May 2009, Mundial terminated its relationship with Splash, citing ah “extraordinarily high” sixteen percent failure rate that would “only grow as units now in the field fail going forward.”

Softub, Splash and Smart were the only spa customers to which Mundial sold the Syllent pump. Mundial can cite no example where the Syllent pump has performed satisfactorily in any spa application, and since the dissolution of its relationship with Softub in 2011, Mundial has not marketed the Syllent pump for use in spa applications.

Because the Softub account was so much larger than both the Splash and Smart accounts, in order to retain Softub as a customer, Mundial attempted to implement several undisclosed, behind-the-scenes improvements to the Syllent pump in addition to the improvements it had communicated to Softub. In an internal email dated May 14, 2009, Delatorre wrote to Michael Ceitlin, president of Mundial, S.A., to “inform [him] of some serious problems ... with the Syllent pumps in the American market.” Delatorre wrote:

SPAS—Despite the fact our pump has not been developed specifically for this application, spa manufacturers were the ones who purchased our product the most rapidly, and currently Softub, one of the largest manufacturers in this market, is now our biggest client, with a potential of 10,000 pumps per year.

However, we have had many quality problems, leading us to believe that due to the high number of returns we would unfortunately lose this client, but thanks to the dedication of all those involved (our team here in Walpole and the entire staff in Caxias [Brazil]), it seems that we have gotten a new vote of confidence because of the improvements in the product that were presented, and that everyone hopes the problems we’re having will be resolved.

These problems are the result of using the pump in an application for which it was not designed. Not even Softub’s people have full knowledge of the abuse the product is suffering in the field, where there is overutilization and where it is subject to attacks from chemical products and debris of various kinds such as sand, salt crystals, etc., etc.

We had two options. Abandon a U.S. $1 million/year client that uses the pump in an application for which it wasn’t developed, or take on the challenge and adapt the product to take all the abuse it suffers in the field. Thanks to the skills of the technical team involved, the decision was to make a significant investment to keep this business.

While this is very expensive, I think the investment is worth it to keep this spa market, which is very big in these countries and in many other countries where we intend to operate.

It’s important to clarify that Softub and its distributors have had to shoulder enormous expenses due to these problems, internal costs from quality tests, the freight for returning defective pumps, the labor for replacing pumps., etc., etc., apart from serious problems with their image. Some distributors in the United States and England aren’t accepting spas with our pumps anymore ' (which is a situation we want to reverse).

In mid-2010, approximately one year after Delatorre’s letter, Underwriters Laboratories revised the “conditions of acceptability” for the Syllent pump to indicate that the pump was rated for use with, a maximum water temperature of 40 degrees Celsius. This revision set the maximum operating temperature below the average 42 degree operating temperature of the Softub spa and well below the 45 degree maximum at which Mundial had rated the pump. The 2005 UL report previously provided to Softub by Hall indicated that the pumps were suitable for water temperatures common to the spa application, stating that “an increase in water temperature would have minimal effect on the motor winding temperatures.” Then, in January 2011, UL added an additional qualification to the temperature specification, which stated: “[t]esting should be considered when pumps are employed in a spa or hot tub.”

G. Softub’s Expert Report

In connection with this litigation, Softub retained Harri Kytomaa, Ph.D of the engineering firm Exponent Failure Analysis Associates to analyze the Syllent pump and identify the fundamental cause or causes of its high failure rate. Dr. Kyt5-maa determined that the design of the Syllent pump is not suitable for the spa environment due to several specific design flaws. Chief among the flaws is the Syl-lent pump’s use of a “water film bearing” rotor design, which is too fragile to tolerate the debris typically found in spa water. His testing showed that debris in the water could easily cause thé rotor to seize entirely, or cause increased friction resulting in increased electrical draw and an increased operating temperature. Further, prior to the introduction of the Rilsan rotor coating, the coating of the rotor was not chemically compatible with chlorinated water and thus degraded over time, causing the rotor to seize.

According to Dr. Kytomaa, the design of the pump seals is also defective for a variety of reasons, the result of which is that water from the wet regions of the pump is allowed to enter the electronics compartment and cause electrical failures. These defects are exacerbated by the fact that the “potting material” used to encase the electrical components and the motor windings forms internal voids, allowing water to permeate it and reach the electrical components, causing electrical failures.

Dr. Kytomaa identified a number of additional design defects apart from the rotor and seal defects. The defects identified “either individually or collectively caused the pumps to fail while in use with the Softub spa.” He further noted that with the limited exception of the Rilsan rotor coating and the introduction of the internal filter on the rotor, the design defects exist in all failed pumps and all pumps that remain in the field.

II. STANDARD OF REVIEW

A movant is entitled to summary judgment when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party,” and “[a] fact is material if it has the potential of determining the outcome of the litigation.” Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir.2011) (citation omitted).

I “view the facts in the light most favorable to the party opposing summary judgment.” Rivera-Colon v. Mills, 635 F.3d 9, 10 (1st Cir.2011). However, “conclusory allegations, improbable inferences, and unsupported speculation” are insufficient to create a genuine issue of material fact to survive summary judgment. Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st Cir.2009) (quotation and citation omitted). In dealing with cross-motions for summary judgment, I “must view each motion, separately, through this prism.” Estate of Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st Cir.2010).

III. DISCUSSION

A. Mundial’s Motion for Summary Judgment

Mundial has moved for summary judgment on all counts of Softub’s Amended Complaint. Softub opposes summary judgment on the grounds that all counts involve disputes of material fact. Before addressing the parties’ arguments with respect to specific counts, however, I must first settle a more fundamental dispute regarding the character of the parties’ alleged contract, around which all claims turn.

1. Terms of Contract

Chief among the many challenges presented by the evidence in this case is that there is no clear written contract governing the parties’ relationship. For the purposes of this litigation, Softub takes the position that its agreement with Mundial is governed by the boilerplate terms and conditions contained in its purchase orders; Mundial takes the same position with respect to the invoices it generated.

While this dispute over the source of the parties’ agreement infects all aspects of this litigation, it most directly concerns the scope of any express warranties and the measure of damages to which Softub may be entitled. Relying on the terms contained in its standard purchase order, Sof-tub argues that Mundial is obligated to indemnify it against all harms causally arising from its sale of defective pumps. Mundial, on the other hand, contends that the parties contracted to limit Softub’s damages to the replacement or credit of defective pumps. As the record in this case makes clear, however, the parties’ course of dealing suggests that they did not intend to be bound by either document.

It is undisputed that Softub placed orders for specified quantities of Syllent pumps using its own standard purchase order form. In pertinent part, the terms of sale contained on that form provided as follows:

ACCEPTANCE-AGREEMENT Seller’s commencement of work on the goods subject to this purchase order or shipment of such goods whichever occurs first, shall be deemed an acceptance of this purchase order. Any acceptance of this purchase order is limited to acceptance of the express terms contained on the face and back hereof. Any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller’s acceptance is hereby objected to and rejected, but such proposals shall not operate as a rejection of .this offer unless such variances are in the terms of the description, quantity, price or delivery schedule of goods, but shall be deemed a material alteration thereof and this offer shall be deemed accepted by Seller without said additional or different terms.

ENTIRE AGREEMENT The purchase order, and any documents referred to on the face hereof, constitute the entire agreement between the parties.

INDEMNIFICATION Seller shall defend, indemnify and [h]old harmless Purchaser against all damages, claims or liabilities and expenses (including attorney’s fees) arising out of any defects in goods or services.

WARRANTY Seller expressly warrants that all goods or services furnished under this agreement shall conform to all specifications and appropriate standards[,] will be new, and will be free from defects in material or workmanship.

Upon receiving a purchase order from Softub, Mundial would ship the requested quantity of pumps from its Walpole facility to Softub’s New Bedford facility, and contemporaneously send a corresponding invoice to Softub’s Valencia, California offices. For orders shipped prior to January 14, 2009, Mundial’s invoices contained the following terms:

1. There are no warranties which extend beyond the description on the face hereof, and Mundial, Inc. (Seller) makes, no warranty, express or implied, of merchantability or fitness for a particular purpose, use or otherwise with respect to the products, whether used singly or in combination with other substances or in any process.

8. Any material considered damaged or defective may or may not be returned, according to Seller’s specific instructions. Seller’s liability hereunder shall be limited to, at Seller’s option, either the replacement of damaged or defective merchandise or the granting to buyer of a credit in the amount of the portion of the purchase price paid for damaged or defective merchandise. Buyer shall not be entitled to recover any consequential or incidental damages arising from any breach hereunder.

5. Acceptance of all or part of the material covered by this invoice constitutes acceptance of the terms hereof by buyer.

6. This document constitutes the whole agreement between the parties, and there are no terms other than those contained herein. The terms of this sale may or may not be modified or rescinded except by a writing signed by buyer and Seller.

The terms contained in Mundial’s invoices plainly conflict with the terms contained in Softub’s purchase orders. This case therefore presents a classic “ ‘battle of the forms’ sale, in which a buyer and a seller each attempt to consummate a commercial transaction through the exchange of self-serving preprinted forms that clash, and contradict each other, on both material and minor terms.” Commerce & Indus. Ins. v. Bayer Corp., 433 Mass. 388, 742 N.E.2d 567, 571 (2001). Section 2-207 of the UCC, enacted at Mass. Gen. Laws ch. 106, § 2-207, governs such a sale. It provides as follows:

(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or dif-, ferent terms.

(2) The additional or different terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:

(a) the offer expressly limits acceptance to the terms of the offer;

(b) they materially alter it; or

(c) notification of objection to them has already been given or is given ■ within a reasonable time after notice of them is received.

(3) Conduct by both parties which recognizes the existence of' a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this chapter.

Mass. Gen. Laws ch. 106, § 2-207. The question thus becomes whether Mundial’s acceptance was “expressly made conditional on assent to the additional or different terms,” and as a result, whether the parties’ contract is governed by subsection (2) or subsection (3) of § 2-207. See Ionics, Inc. v. Elmwood Sensors, Inc., 110 F.3d 184, 187 (1st Cir.1997).

Here, paragraph 5 of Mundial’s Invoice provides that Softub’s acceptance of Mundial’s shipment constitutes an acceptance of what is, essentially, Mundial’s counteroffer, but nothing in Mundial’s invoice conditions its acceptance of Softub’s offer on Softub’s assent to the additional or different terms in Mundial’s invoice. Therefore, based on the plain language of § 2-207, it would appear that a contract is formed under subsection (1), subject to the conditions set forth in subsection (2). Mass. Gen. Laws ch. 106, § 2-207(1); JOM, Inc. v. Adell Plastics, Inc., 193 F.3d 47, 53 (1st Cir.1999) (“[I]f the parties exchange forms with divergent terms, yet the seller’s invoice does not state that its acceptance is made ‘expressly conditional’ on the buyer’s assent to any additional or different terms in the invoice, a contract is formed [under subsection (1) of § 2-207].”).

Nevertheless, both the Supreme Judicial Court of Massachusetts and the First Circuit have recognized that even if a seller’s invoice does not condition acceptance on assent to its additional or different terms, an exchange of forms will still fail to result in contract where the buyer “by means of language in ... its purchase orders, expressly limit[s] [the seller’s] acceptance to the terms of [the buyer’s] offer.” Commerce & Indus. Ins., 742 N.E.2d at 572; JOM, Inc., 193 F.3d at 54; see also Ionics, Inc., 110 F.3d at 189 (where “notification of objection to conflicting terms was given on the order form and ... the new terms materially alter those in the offer,” contract cannot be formed under subsection (1) of § 2-207). That is the case here, where Softub’s purchase order expressly limited Mundial’s acceptance to the terms of its offer.

However, “where for any reason the exchange of forms does not result in contract formation[,] ... a contract is nonetheless formed’ [under subsection (3) of § 2-207] if [the parties’] subsequent conduct-for instance, the seller ships, and the buyer accepts the goods-demonstrates that the parties believed that a binding agreement had been formed.” Commerce & Indus. Ins., 742 N.E.2d at 572 (quoting JOM, Inc., 193 F.3d at 54) (modification in original). I therefore find that the contract between Softub and Mundial was created under subsection (3) of § 2-207, and its terms “consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of [UCC Article 2].” Mass. Gen. Laws. ch. 106, § 2-207(3).

Here, because the respective forms of Softub and Mundial agree on virtually nothing material to the present dispute, the contract consists primarily of UCC “gap-fillers,” see generally, JOM, Inc., 193 F.3d 47, which “include those that may be established by a course of dealing, course of performance, and usage of the trade.” Commerce & Indus. Ins., 742 N.E.2d at 573 (quoting 2 R.A. Anderson, Uniform Commercial Code § 2-207:78, at 602 (3d ed. rev.1997)). As a result, summary judgment is appropriate as to so much of Sof-tub’s claims as are premised solely on terms found only in its purchase orders.

. 2. Warranty and Contract Claims

At the heart of this case are Softub’s claims for breach of warranties both express and implied.

a. Express Warranty

Count V of the Amended Complaint asserts a claim for breach of express warranties under UCC . § 2-313. That section provides in relevant part that:

(a) Any affirmation of fact or promise made fiy the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.

(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.

Mass. Gen. Laws. ch. 106, § 2-313(1). For an affirmation or description to be actionable as an express warranty, it must have become “part of the basis of the bargain.” Id. “It is not necessary to the creation of an express warranty that the seller use formal words such as ‘warrant’ or ‘guarantee’ or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.” Id. at § 2-313(2).

In the Amended Complaint, Softub alleges the following express warranties: (1) that the Syllent pumps would meet Sof-tub’s specifications; (2) that the pumps were suitable for Softub’s intended use; (3) that the pumps would operate under normal spa conditions for the applicable warranty period of two, three, or five years; and (4) that the pumps would be otherwise free from defects.

Mundial essentially argues that summary judgment should enter with respect to all express warranties asserted by Sof-tub because those alleged warranties are either found in Softub’s purchase order, which is inoperative, or are not found anywhere in the summary judgment record in the exact language used in the Amended Complaint. Apart from arguing that the language of its purchase order controls, Softub responds that summary judgment is inappropriate because a jury evaluating the universe of statements made by Mun-dial would be entitled to conclude that Mundial expressly warranted that the Syl-lent pump was suitable for normal spa use and specifically for Softub’s application.

Apart from its “battle of the forms” argument—which, as discussed in Part III. A.1, supra, I agree renders inoperative any express warranties contained in Softub’s purchase orders—Mundial offers no developed legal argument as to why, in the absence of an integrated agreement, at least some of the various affirmations it made over the course of the parties’ dealings cannot be construed as express warranties that the Syllent pump was suited for use in Softub’s spas (and perhaps to spas generally). Under Massachusetts law, “[t]o create an express warranty, the word warrant need not be used, nor is any precise form of expression necessary; but ... if the vendor, at the time of the sale, affirms a fact, as to the essential qualities of his goods, in clear and definite language, and the purchaser buys on the faith of such affirmation, that ... is an express warranty.” O’Connell v. Kennedy, 328 Mass. 90, 101 N.E.2d 892, 894 (1951) (internal quotation marks omitted); see also Glyptal, 801 F.Supp. at 896-97 (concluding genuine issues of material fact regarding content of conversation between buyer and seller precluded summary judgment on express warranty claim, even where buyer did not allege specific warranty language).

b. Implied Warranty

Count VI of the Amended Complaint alleges breaches by Mundial of the implied warranties of fitness for a particular purpose and merchantability. Mundial moves for summary judgment with respect to both implied warranties.

i. Fitness for a Particular Purpose. Under UCC § 2-315, “[w]here the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified ... an implied warranty that the goods shall be fit for such purpose.” Mass. Gen. Laws. ch. 106, § 2-315. The creation of such a warranty requires proof of three factual elements:

First, the seller must have reason to know of the particular purpose for which the buyer requires the goods; second, the seller must have reason to know that the buyer is relying on the seller’s skill or judgment in selecting or furnishing suitable goods; and third, the buyer in fact must rely, upon the seller’s skill or judgment.

Glyptal, Inc. v. Engelhard Corp., 801 F.Supp. 887, 897-98 (D.Mass.1992); Fer-nandes v. Union Bookbinding Co., 400 Mass. 27, 507 N.E.2d 728, 733 (1987). “A ‘particular purpose’ differs from the ordinary purpose for which the goods are used in that it envisages a specific use by the buyer which is peculiar to the nature of his business whereas the ordinary purposes for which goods are used are those envisaged in the concept of merchantability and go to uses which are customarily made of the goods in question.” Hannon v. Original Gunite Aquatech Pools, Inc., 385 Mass. 813, 434 N.E.2d 611, 616 (1982) (quoting U.C.C. § 2-315 Comment 2).

Mundial argues that no reasonable jury could conclude that Softub relied on Mundial’s knowledge, skill or judgment to select of furnish pumps suitable for Softub’s application, essentially because Softub’s knowledge of spa design and manufacture is superior to its own, and because Softub performed its own testing of the Syllent pump in its application prior to its initial decision to purchase.

The record contains evidence of a factual dispute surrounding this issue sufficient to render summary judgment inappropriate. There is no doubt that Softub’s knowledge of the requirements of its particular spa application was superior to Mundial’s, and that Softub tested the Syllent pump in its spas prior to making the decision to purchase. Where a buyer has performed its own testing prior to making the decision to purchase a product, courts often hold the implied warranty of fitness for a particular purpose inapplicable due to lack of reliance. See Glyptal Inc., 801 F.Supp. at 898; Trans-Aire Inter., Inc. v. Northern Adhesive Co., Inc., 882 F.2d 1254, 1258-59 (7th Cir.1989); Dow Corning Corp. v. Weather Shield Mfg., Inc., 790 F.Supp.2d 604, 615 (E.D.Mich.2011).

Here, however, the totality of the record suggests that the problem related to using the Syllent pump in a spa (as opposed to whirlpool) application related to its fundamental lack of durability, which in many cases was due to latent defects that only manifested themselves once the product was in the hands of the consumer. A reasonable jury could conclude, in contrast, that Sbftub’s testing was focused on the Syllent pump’s ability to meet Softub’s performance specifications in terms of heating capacity and noise level, among other functions. When issues arose during Softub’s initial testing, and then later during production, Mundial repeatedly represented to Softub that it was making necessary improvements to the pump and that longevity and durability would not be a problem going forward. Mundial, not Sof-tub, was always responsible for devising and implementing solutions to the various issues that Softub reported. Mundial thus had reason to know that Softub was relying on its skill and knowledge both in vouching for the initial suitability of the pump and in implementing later improvements which it assured Softub would render the pump suitable for Softub’s application. On balance, I find that there is sufficient evidence to permit a jury to consider whether the Syllent pump carried an implied warranty of fitness for the particular purpose of functioning in the spa environment.

ii. Merchantability. Where, as here, the seller of goods is a merchant with respect to goods of the kind, the sale creates an implied warranty that the goods are “merchantable,” unless such a warranty is excluded or modified. Mass. Gen. Laws ch. 106, § 2-314(1). Goods are considered “merchantable,” if they, among other things: “(c) are fit for the ordinary purposes for which such goods are used; ... and (f) conform to the promises or affirmations of fact made on the container or label if any.” Id. § 2-314(2).

Contrasting the pump’s relatively low failure rate in whirlpool bath application with the substantially higher failure rates experienced in Softub’s spas, Mundial argues that no reasonable jury could find that the Syllent pump is not fit for the ordinary purpose for which it was designed. Mundial also points to the fact that the pump was approved for use by Underwriters Laboratories, as well as the fact that Softub used the pump in the manufacture of its export spas for a period of three years as evidence of its fitness for ordinary purposes.

Yet, while Mundial later took the position upon terminating its relationship with Softub that the Syllent pump was never designed for use in spas and “cannot withstand the challenges of the 24/7 ‘spa’ world,” the pumps sold to Softub were affixed with labels stating the pumps were “[f]or use with Hot Tubs and Spas only,” and accompanied by manuals touting the pumps’ suitability for use in spas. There is also evidence that Mundial sold the Syl-lent pump to at least two other spa manufacturers, only to terminate sales when the failure rate in those spa applications proved to be unacceptably high. There is therefore at least some evidence that Sof-tub’s use constituted an “ordinary” use of the Syllent pump as marketed by Mundial. If a jury evaluating this evidence were to find that Softub’s spa use constituted an ordinary use, and also credited the substantial evidence of the pump’s unacceptably high failure rate in Softub spas, Sof-tub could prevail on its claim for breach of the implied warranty of merchantability.

3. Misrepresentation Claims

Softub asserts claims for both intentional (Count I) and negligent misrepresentation (Count II) based on a variety of statements made by Mundial, the general tenor of which was that the Syllent pump was suitable for use in a spa application. Mun-dial moves for summary judgment on these claims essentially on the grounds that they are not pled with adequate particularity or that there is insufficient evidence to create a genuine factual dispute as to each element of both claims.

In an action for intentional misrepresentation, or deceit, under Massachusetts law, such as that alleged in Count I, a “plaintiff must prove that the defendant made a false representation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon, and that the plaintiff relied upon the representation as true and acted upon it to his damage.” Danca v. Taunton Sav. Bank, 385 Mass. 1, 429 N.E.2d 1129, 1133 (1982) (internal quotations omitted). An intentional misrepresentation may result from an implied or express representation. Briggs v. Carol Cars, Inc., 407 Mass. 391, 553 N.E.2d 930, 933 (1990). Proof of intent to deceive is not required, so long as there is proof of a false representation of fact susceptible of the speaker’s knowledge. Cummings v. HPG Int'l Inc., 244 F.3d 16, 22 (1st Cir.2001); Snyder v. Sperry and Hutchinson Co., 368 Mass. 433, 333 N.E.2d 421, 428 (1975).

By contrast, in order to prevail on a claim of negligent misrepresentation such as that alleged in Count II, a plaintiff must prove only that a defendant provided it with false information and “fail[ed] to exercise reasonable care or competence in obtaining or communicating the information.” Nota Constr. Corp. v. Keyes Assoc., 45 Mass.App.Ct. 15, 694 N.E.2d 401, 405 (1998). A statement giving rise to liability for misrepresentation must be one of fact, i.e., something “susceptible of knowledge,” rather than one of expectation, estimate, opinion, or judgment. Zimmerman v. Kent, 31 Mass.App.Ct. 72, 575 N.E.2d 70, 75 (1991). Nevertheless, while statements of opinion cannot give rise to an action for intentional or negligent misrepresentation, “a statement that in form is one of opinion ‘may constitute a statement of fact if it may reasonably be understood by the recipient as implying there are facts to justify the opinion or at least that there are no facts that are incompatible with it.’ ” Cummings, 244 F.3d at 22 (quoting McEn-eaney v. Chestnut Hill Realty Corp., 38 Mass.App.Ct. 573, 650 N.E.2d 93, 96 (1995)).

Mundial’s principal challenge to Softub’s claims of misrepresentation is that they are not pled with the particularity required under Fed.R.Civ.P. 9(b) for pleading allegations of fraud. The argument is ill-founded. Softub’s Amended Complaint, and importantly, the record developed at this stage, contain numerous specific examples of statements which a reasonable jury could find to be intentional misrepresentations designed to induce Softub to purchase and continue using the Syllent pump. These statements include Dave Hall’s November 1, 2005 representation that the Syllent pump “is proven to operate in conditions of like use with your product”; Rich Zirpolo’s September 15, 2008 representation that the overall failure rate of the Syllent pump was “less than 1/10 of 1% so we don’t really hear about the whys and wherefores”; Zirpolo’s December 9, 2008 statement that the latest version of the pump, with the built-in filter, would “keep 99.9% of debris away from the rotor thereby eliminating failures”; and Zirpolo’s March 2008 representations that the pump “as it is currently configured—will run ad infinitum with no problems”; that “[a]ll previously identified ‘challenges’ of using this whirlpool pump in spas have been addressed to ... other manufacturers’ satisfaction”; and that “[t]he Syllent pump has been being used virtually problem free in both spas and baths in Brazil for almost five years.”

• While some of those statements are inflected with opinion, they all imply underlying facts that Softub alleges Mundial knew were false, see Cummings, 244 F.3d at 22, namely that the pump had been successfully used in spa applications, had a low failure rate even in spa applications, and was generally suitable for use in spas. As is evidenced by the depositions of Dave Hall both in his individual capacity and as Mundial’s 30(b)(6) representative, Mundial has yet to substantiate its claims that the Syllent pump was ever successfully used in a spa application.

The problem Softub faces, however, is that the vast majority the misrepresentations it alleges, including all of the most damning statements recounted above, are barred by Massachusetts’ three year statute of limitations for misrepresentation claims. See Mass. Gen Law. Ch. 260, § 2A. Unless an exception to the statute of limitations applies, Softub is not permitted to recover for any misrepresentation which occurred prior to April 6, 2009, three years prior to the filing of this action.

Having reviewed each alleged misrepresentation made after the April 6, 2009 cutoff date, I fail to see how a reasonable jury could find them to constitute actionable misrepresentations, intentional or otherwise. In contrast to many of the representations made by Mundial representatives prior to April 6, 2009, the alleged misrepresentations made after this date are all either demonstrably true on this record, or are plainly statements of “expectation, estimate, opinion, or judgment,” Zimmerman, 575 N.E.2d at 75, regarding improvements in performance Softub could expect to see following the implementation of various design improvements. As a consequence, summary judgment is appropriate with respect to the misrepresentation claims alleged in Counts I and II. I note however that with the exception of the November 1, 2005 representation by Dave Hall, the remainder of the statements recounted herein may be considered in conjunction with Sof-tub’s claim for breach of express warranties, which carries the four year statute of limitations period generally applicable to actions on contracts for the sale of goods. See Mass. Gen. Laws. ch. 106, § 2-725(1).

Softub argues that there exists a material question of fact as to whether the misrepresentations it alleges concern facts that were “inherently unknowable” to it, such that the “discovery rule” might apply to toll the statute of limitations until it “knew, or in the exercise of reasonable diligence should have known, of the factual basis for [its] cause of action.” See Patsos v. First Albany Corp., 433 Mass. 323, 741 N.E.2d 841, 846 (2001); see also Mass. Gen. Laws ch. 260, § 12; Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337, 893 N.E.2d 1187, 1217 (2008) (statute of limitations is tolled where defendant “fraudulently conceals” a cause of action from the knowledge of a plaintiff). Essentially, Softub contends that it did not have reason to know that Mundial’s statements about the Syllent pump’s suitability for use in spas were untrue until Adilson Delatorre’s May 2011 email which finally admitted that the Syllent pump was never intended to be used in spa applications and was unsuitable for that purpose.

I disagree. Where a party invokes the discovery rule in an attempt to toll a statute of limitations, “the factual inquiry focuses on ... the first event reasonably likely to put the plaintiff on notice that the defendant’s conduct had caused him injury.” Szymanski v. Boston Mut. Life Ins. Co., 56 Mass.App.Ct. 367, 778 N.E.2d 16, 20 (2002). Here, Softub clearly had reason to believe from early on in its relationship with Mundial that Mundial’s representations about the quality of its product and its suitability for Softub’s purposes were not to be trusted. While Softub might have filed suit earlier, it chose to attempt to salvage a commercial relationship in which it had invested substantial time and resources. As a result, Softub relinquished its right to assert misrepresentation claims that otherwise would have been actionable.

A Chapter 93A Claims (Counts VII andX)

Mundial attacks Softub’s Chapter 93A claim on the grounds that the alleged deceptive acts forming the basis of that claim did not occur “primarily and substantially” within Massachusetts. See Mass. Gen. Laws ch. 93A, § 11.

Although the First Circuit has in the past traditionally employed a three-part test that looks to (1) where the defendant commits the unfair or deceptive act or practice; (2) where the plaintiff receives or acts on the wrongful conduct