Sales Terms And Conditions
The following Terms and Conditions (“Terms”) are applicable to all products (the “Products”) sold byEquiSafe, LLC (the “Seller”), a Florida corporation with a registered office located at 12851 Upper Cove Drive, Wellington, FL 33414,to any individual or entity placing orders to Seller or making use of the Products (the “Buyer”).The acceptance of any order is expressly conditioned upon the Buyer’s consent to these Terms. No interlineations, deletions, modifications or amendments to these Terms shall be binding on the Seller unless agreed to and accepted in writing by the Seller.
All sales are subject to written confirmation by the Seller. The Buyer’s orders must be complete and precise, delivered to the Seller either directly to the head office, or through one of its agents or representatives as designated by Seller from time to time.If the Seller does not respond within ten (10) days following the receipt of an order from the Buyer, the order is not accepted.
Receipt by the Buyer of the Seller’s acknowledgment of an order without prompt written objection thereto, the acceptance of a quote by the Buyer, and/or the signing or tender of a purchase order shall each constitute the Buyer’s entire acceptance of these Terms.
Once an order has been acknowledged by the Seller, such order may not be cancelled by the Buyer without the advance written approval of the Seller. To be valid, cancellation of an order must be done in writing, prior to the shipmentof the Products. In the event of such a cancellation by the Buyer, the Seller reserves the right to assess a cancellation fee in the amount of thirty percent (30%) of the total amount of the order and one hundred percent (100%) of any third party expenses incurred prior to cancellation, including, but not limited to, freight and duty where applicable.
These Terms shall supersede any and all terms of the Buyer and the Buyer agrees to waive its own specific and general terms and conditions mentioned in its own purchase orders, invoices, letters or business documents.
II. PRODUCT PRICE QUOTATIONS
The quotations or tenders are noncommittal and non-binding in nature. No contract shall arise until a written acknowledgment from the Seller accepting the Buyer’s order, is sent by the Seller to the Buyer.
The weights, dimensions, capacities, performance ratings, characteristics and other data on the Seller’s catalogs, prospectus, circulars, advertisements, price lists and instructions sheets are mentioned only as general information. They are only approximate and shall not bind the Seller.
The Seller will be entitled to adjust agreed prices on the basis of the average change in the cost price of the Productsto be delivered and/or activities to be performed by the Seller. The adjustment of agreed prices and rates will apply as of the beginning of the first month after the Buyer has been notified in writing of the adjustment.
Only prices valid at the moment of the issuing date of the order confirmation can be applied. All prices must be indicated with the suited Incoterm. Furthermore, at any time and without notice, Seller reserves the right to modify or improve product it judges necessary without the customer being able to claim injury.
Unless otherwise specified by the parties in writing, the Products are to be delivered “ex works”, at the Seller’s place of business (as “ex-works”/ EXW is defined by Incoterms 2010). The method and agency of transportation and routing will be designated by the Seller. In the event the Buyer requests alternative shipment or routing, extra packing, or any other special shipping requests, any and all shipping and transportation charges resulting therefrom will be charged to the Buyer’s account. The Seller shall not be responsible for any damage in shipment.
IV. DELAYS IN DELIVERY
Any specific delivery or, where applicable, shippingdate designated in writing signed by the Seller shall be interpreted as estimated and in no event shall dates be construed as falling within the meaning of “time is of the essence”. The Seller shall not be responsible for any delays in filling orders, nor shall it be liable for any loss or damages resulting from such delays.
If a specific delivery or, where applicable, shipping date is specified in the order and agreed to by the Seller, then the Seller shall not be liable for any delays in filling such order caused by delays resulting from any and all conditions beyond the control of the Seller, including but not limited to, (a) accidents to or malfunctions of the Seller’s or the Seller’s subcontractors’ or suppliers’ machinery; (b) differences with employees, strikes, or labor shortage; (c) fire, floods, hurricanes or other natural disaster; (d) supplier or subcontractor delays, including any quantity or quality defects; (e) delays caused by an instrumentality of the United States Government or any government or any agency; (f) delays in transportation; (g) restriction imposed by any governmental regulation, whether valid or invalid; or other cause beyond the control of the Seller, or any condition without the sole fault or negligence of the Seller. All of the foregoing events, (a) through (g), shall be considered Force Majeure.
If a specific delivery or shipping date is specified in the order and agreed to by the Seller, the specific delivery or shipping date shall only begin running from the moment the Seller has confirmed the order.The various authorizations (import license, foreign exchange transfer authorization, etc.) must have been previously obtained by the Buyer. Any modification of an order being executed, if accepted by the Seller, shall lead to an extension of the delivery or shipping dateprovided according to terms to be communicated by the Seller to the Buyer.
Under no circumstances shall the Buyer or the Buyer’s customer be entitled to any damages for the Seller’s failure to deliver or, where applicable, ship on time, and the Buyer agrees to indemnify, defend and hold the Seller harmless against any costs and expenses related to any claims for lost profits or other consequential damages based on the Seller’s failure to deliver timely.
If the Buyer does not accept or pick up the Products at the date specified in the order or later agreed to by the Seller, the delivery of the Products shall nevertheless be deemed accepted by the Buyer who shall therefore pay for the Products delivered. The storage of the Products arranged by the Seller will be at the risk and expense of the Buyer. The Seller shall further be entitled, to the exclusion of any other remedy for the Buyer’s failure to take the Products, to recover any expenses incurred in executing the order which are not covered by payments received for the Products delivered.
Unless otherwise stated payment for the Products shall be received by the Seller within 30 (thirty) days after the Ex Works delivery.
All invoices are payable to Bank of America, routing number 063100277 and account number 2290 5232 9646.
In the event the Seller feels insecure concerning payment by the Buyer, the Seller reserves the right to require cash or letter of credit payment terms. The price does not include any present or future Federal, State or Local property, sales, use, excise, license, gross receipts or other taxes or assessments which may be applicable to, imposed upon or result from this transaction or any services performed in connection with these Terms and/or the Products. The Buyer agrees to pay any such taxes or reimburse payment of such taxes by the Seller.
In the event payment is not received when due, interest shall be due at the rate of one and one half percent (1.5%), or the maximum permitted by law, on the unpaid portion of the invoice sum for each period of thirty (30) days or part thereof from the due date. Seller has the right to refuse to deliver goods or services if the Buyer is past due on any of its debts to the Seller. Furthermore, the Seller shall have the right to retake all Products immediately unless other written arrangements have been made concerning payment only if the Buyer is past due. The Buyer agrees to make all Products available, shipping ready, for the Seller, within five (5) days of receiving notice from the Seller of its intention to retake the Products.
The Buyer shall pay all of the Seller’s costs of collection of any amounts past due, including, but not limited to attorneys’ fees, court costs, witness fees, travel and lodging, etc. The Seller will be entitled to apply payments made by the Buyer first to pay those claims it deems appropriate, including interest, late charges, costs of collection, etc.
The Buyer, or its affiliates or assignees, will not be entitled to suspend its payment obligations to the Seller, claim any right to compensation and/or to offset its payment obligations with any obligations of the Seller to the Buyer, with such obligations being those set forth in these Terms or other purchase contract between the Buyer and the Seller.The Buyer will not be entitled to dissolve the contract with the Seller if the Buyer is in default.
If the Buyer does not fulfill its payment obligations to the Seller completely or within the applicable payment period, the Seller will be entitled to suspend its obligations to the Buyer completely and/or not to perform them.
VI. SECURITY INTEREST
In order to protect and secure payment of all debts due and owing from the Buyer and until the Seller has been paid in full, Buyer hereby grants to Seller a security interest in the Products, and all proceeds and all accounts receivables resulting from the sale of the Products. In connection therewith, the Buyer hereby authorizes the Seller to take all necessary steps to file such financing statements and exhibits with the proper authorities, including the filing of a UCC-1 financing statement.
Until the Buyer has paid for the Products in full, the Buyer shall not pledge, mortgage, encumber, or create or suffer to exist a security interest in the Products in favor of any person other than the Seller unless written approval of such other security interest is given by the Seller. Additionally, the Buyer agrees to keep the Products insured to their full value until payment is received by the Seller. In the event the Buyer sells the Products to a third party before payment in full is received by the Seller, the Buyer agrees to secure its security interest in the Products at the time of sale to its customer in order to protect the Seller’s interests to the greatest extent possible.
VII. INSPECTION; RETURNS
Unless the Seller receives a written complaint with full particulars from the Buyer regarding any defective Products or other complaints within five (5) business days from the date the Products are delivered, the Products shall be deemed to have been delivered in good condition and that the delivery is accepted. The Seller’s acceptance of any returned Products does not imply acknowledgment by the Seller of the reason for the return. The Products returned by the Buyer to the Seller will remain at the Buyer’s risk and the Buyer will owe the agreed amounts until the Seller has credited the Buyer for the returned Products. The Products accepted by the Buyer from the Seller, which the Buyer has put fully or partly into use, treated, processed or delivered to others will be considered to conform to the contract.
VIII. INTELLECTUAL PROPERTY RIGHTS
All intellectual property rights to, ownership of, and interest in all Products, trademarks, trade names, logos, distinctive marks, designs, and other materials created and/or made available by the Seller hereunder or within the framework of the relationship between the Buyer and the Seller are vested exclusively in the Seller. The Buyer shall not reproduce, transfer, grant, assign, license or use the Products, distinctive marks, and designs and other materials created and/or made available by the Seller and/or otherwise act as maker of and/or party entitled to such rights, except in accordance with these Terms.
The Buyer shall not remove or alter indications concerning intellectual property rights and concerning the confidential nature of information from Products, services, programs, works, distinctive marks, inventions, designs, models and other materials created and/or made available by the Seller and Products delivered.
The Buyer shall not alter, or have altered, modify, or have modified, adapted or otherwise reconfigured, the Products, works, distinctive marks, inventions, designs, models and other materials created and/or made available by the Seller.
The Seller will indemnify the Buyer against claims of third parties based on the allegation that by using the Product, the Buyer has infringed the intellectual property rights of such third parties, provided that the Seller is promptly notified in writing and given authority, information and assistance with defense of the claim(s). The Seller, at its option, shall (1) procure the right of Buyer to continue to use the Product, (2) modify the Product so that it becomes non-infringing, (3) replace the Product with non-infringing equipment, or (4) remove the Product and refund the purchase price. The foregoing shall not be construed to include any agreement by the Seller to accept any liability whatsoever with respect to Buyer’s own or third party equipment, documents or materials used in combination with or related to the Product. The foregoing states the entire liability of the Seller with regard to intellectual property infringement of the Products.
The Seller makes no warranty concerning the appropriateness of the Products or services to the purposes for which the Buyer or its customer are acquiring same. Moreover, the Seller makes no warranty that the Products or services or other intellectual property of the Seller does not infringe the rights of third parties.
IX. CANCELLATION PRIVILEGES
The Seller may cancel any contract if the Buyer is in default of the payment of any obligations pursuant to or any contract between the parties, or if in the sole judgment of the Seller, the Buyer’s financial condition and responsibility has become materially impaired. In addition, the Seller shall have the right to recover damages for nonperformance, and any unpaid installments due on account of this or any other contract between the parties shall become immediately due and payable.
If the Buyer – validly – cancels the contract, the Buyer will be obliged (i) to compensate the Seller for any costs incurred by the Seller in connection with making the offer and entering into the contract and the damage and/or loss arising from the cancellation (ii) to provide the Seller with an inventory of any sample or advertisement material provided by the Seller prior the cancellation and to return them to the Seller or sell them to any third party designated by the Seller.
The Seller will be entitled to terminate the contract unilaterally with immediate effect, fully or in part and/or to suspend performance of its obligations under the contract with immediate effect if:
- a. the Buyer has failed to fulfill one or more of its obligations under this or any other contract or sales terms;
- b. theBuyer has suspended payments or has sought the protection of the Bankruptcy Courts;
- c. a petition for the involuntary bankruptcy of the Buyer has been filed;
- d. the Buyer’s property on Seller’s premises has been attached in execution;
- e. a resolution for the dissolution and/or winding up of the Buyer has been adopted;
- f. the enterprise operated by the Buyer has been fully or partly transferred to a third party without consent of the Seller.
- g. the Buyer has failed to meet the sales targets as agreed upon, in writing, by the Buyer and the Seller, after having been granted by the Seller, a 90-days period to correct the failure.
The Seller will never be liable with respect to the Buyer for any damages arising from termination of the contract or from the suspension of obligations under the contract for the aforementioned reasons.
If the contract is terminated, performance of the contract already received by the Buyer and the payment obligations of the Buyer in connection with it will remain. The amounts invoiced by the Seller for performance prior to or upon termination of the contract will be immediately due and payable after termination. The Buyer agrees to pay any of the Seller’s costs, damages, attorneys’ fees and other expenses associated with the Seller’s termination of any contract with the Buyer pursuant to the terms of this section.
X. FORCE MAJEURE
If the Seller is temporarily unable to perform this Agreement because of Force Majeure, it will be entitled to suspend performance of the contract for as long as the Force Majeure lasts. If the Seller is permanently unable to perform any of its obligations to the Buyer because of Force Majeure, it will be entitled to cancel the specific order with immediate effect and without any damages whatsoever. The Buyer agrees to indemnify, defend and hold the Seller harmless against any claims made by third parties based on whole or in part on the Seller’s inability to perform because of Force Majeure.
XI. GOVERNING LAW
These Terms and all transactions between the Seller and the Buyer are governed by the laws of the State of Florida in the United States, without reference to conflict of laws principles. The parties expressly opt out of and agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms.
For any and all claims, disputes, or controversies arising under, out of, or in connection with these Terms, either party shall have the right to initiate litigation in any federal or state court of competent jurisdiction located in Palm Beach County, the State of Florida. Provided, however, that in the event the Selleris the plaintiff in any such action, it may bring such action before any competent court in the place where the Buyermaintains offices, does business, resides or may be found. All parties hereto hereby expressly submit to the jurisdiction over their persons of any court located in the State of Floridaand waive any objection based on jurisdictional grounds to any action brought in the State of Florida.
XIII. ENTIRE AGREEMENT
These Terms constitute the sole terms and conditions of the contract between the Buyer and the Seller. No other terms, conditions, or understanding, whether oral or written, shall be binding upon the Seller, unless hereafter made in writing and signed by the Seller’s authorized representative and, in the case of printed matter, also initialed by such representative next to such printed term or condition.
Should any provision of these Terms be judicially declared unenforceable, that provision shall be deemed stricken and the remainder shall continue in full force and effect insofar as it remains a workable instrument for effectuating the intents and purposes of the parties. The Parties further agree to renegotiate any so severed provision to bring the same within applicable legal requirements to the greatest extent possible.
The Buyer shall not assign or transfer these Terms or any related contract or purchase order without the prior written consent of the Seller. The Seller shall expressly be permitted to assign or transfer, without the prior written consent of the Buyer, the Seller’s right to receive any or all of the payment due from the Buyer under these Terms.