TERMS AND CONDITIONS OF SALE

STANDARD TERMS & CONDITIONS

These Standard Terms & Conditions (the “Terms”) are incorporated into that certain Sale of Goods Agreement (the “Agreement”) between Equinox Construction, LLC (“Seller”) and the “Buyer” identified therein with the same force and effect as though fully set forth therein. Unless otherwise defined in these Terms, capitalized terms used herein shall have the meaning ascribed to them in the Agreement.

1. No Conflicting Terms

The Parties agree that these Terms shall prevail over any conflicting terms and conditions in any purchase order or any other instrument or document provided by the Buyer. Any additional or different terms or conditions in any purchase order or other instrument or submission from the Buyer shall be deemed objected to by Seller without the need of any further or additional notice of objection, and such additional or different term shall be of no effect or in any way binding upon Seller.

2. Description

The description of the Goods is as set forth in Seller’s sales documentation existing on the Offer Date, unless expressly changed in the Agreement. Seller reserves the sole right to modify, without notice, (i) the specification of any Goods to comply with safety or regulatory compliance and (ii) any information posted or distributed pertaining to Goods due to technology or trade changes.

3. Payment

(a). Pricing; Payment. The price to be paid by Buyer shall be that set forth in the Agreement. All prices are in U.S. dollars. Payment schedules shall be set forth in the Agreement. If no payment schedule is set forth in the Agreement, payment shall be due in full within fifteen (15) days of the Effective Date. Buyer shall have no right of set-off or withholding, and no deduction of any amounts due from Buyer to Seller shall be made without Seller’s prior, express written approval.

(b). Invoices. The Agreement shall act as Seller’s invoice to Buyer for the Goods. Additional invoices, if any, shall be delivered to Buyer and Buyer shall notify Seller in writing of any dispute with any invoice (along with a reasonably detailed description of the dispute) within five (5) days from Buyer’s receipt of such invoice. Buyer will be deemed to have accepted all invoices for which Seller does not receive timely notification of disputes, and shall pay all undisputed amounts due under such invoices within the period(s) set forth therein. If no payment terms are set forth in an invoice, payment shall be due within fifteen (15) days after the date thereof. Unless otherwise set forth in the applicable invoice, payment for the Goods shall be made by credit card (additional fee may apply), Apple Pay, PayPal or, eventually, by electronic payment (ACH) or wire transfer.

(c). Late Payment. Except for invoiced payments that Buyer has successfully disputed, Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly.

(d). Purchase Money Security Interest. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the applicable State’s Uniform Commercial Code.

4. Delivery

(a). Delivery. All Goods shall be delivered as set forth in the Agreement. All Goods acquired by Buyer under this Agreement will be suitably packaged for shipment in Seller’s standard containers.

(b). Title and Risk of Loss. Title to and risk of loss of the Goods will pass to the Buyer upon delivery by the Seller; delivery to Seller shall include delivery to Seller’s carrier. Buyer shall furnish the equipment and labor for unloading the Goods at its sole cost.

(c). Buyer’s Right of Inspection.
(i) Buyer shall inspect the Goods within five (5) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (x) product shipped is different than identified in the Agreement; or (y) product’s label or packaging incorrectly identifies its contents.
(ii) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith.
(iii) Buyer acknowledges and agrees that the remedies set forth in Section 4(c)(ii) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods.
(iv) If Seller delivers to Buyer a quantity of Goods of up to 5% more or less than the quantity set forth in the Agreement, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Purchase Order adjusted pro rata.

(d). Seller’s Right to Delay or Cancel. Seller may delay or cancel any shipment if payment is not arranged to Seller’s reasonable satisfaction, or Buyer has breached material obligations. This will not be considered a default or breach by Seller.

5. Disclaimer of Express and Implied Warranties

Seller warrants for twelve (12) months after delivery that the Goods are as described and free from manufacturing defects. This warranty is void if the Goods are misused, not assembled or maintained properly. Buyer’s sole remedy is replacement of non-conforming Goods.

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE GOODS ARE SOLD “AS IS” AND SELLER DISCLAIMS ALL OTHER WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

6. Limitation of Liability; Actions; Indemnification

(a). Limitation of Liability. Seller is not liable for incidental, consequential, or special damages, including lost profits or business opportunities. Seller’s liability shall not exceed the purchase price of the Goods related to the claim.

(b). Actions. No action shall be brought more than one (1) year after the cause of action accrues, except for payment claims.

(c). Indemnification. Buyer shall indemnify Seller against all claims arising from use of the Goods, except where Seller fails to notify Buyer promptly and that causes prejudice to Buyer’s defense.

7. Compliance with Laws

Buyer shall comply with all applicable laws, including U.S. export regulations, in connection with the use and resale of the Goods.

8. Intellectual Property

Seller owns all intellectual property rights related to the Goods. Buyer may not use Seller’s trademarks or similar names without prior written consent.

9. Authority of Seller’s Agents

No agent or representative of Seller has authority to modify or extend any warranty or agreement terms unless expressly included in the Agreement.

10. Term and Termination

(a). Term. The Agreement continues until all orders are completed.

(b). Termination for Breach. Either party may terminate in case of uncured material breach (10 days for monetary breaches, 30 days for others).

(c). Termination for Financial Insecurity. The Agreement terminates automatically upon Buyer’s insolvency, bankruptcy, or similar events.

11. Governing Law and Venue

The Agreement is governed by Florida law (Miami-Dade County), excluding conflicts of law rules and the UN Convention on Contracts for the International Sale of Goods. Both parties waive any right to a jury trial.

12. Attorney’s Fees

The prevailing party in any legal dispute may recover reasonable attorney’s fees and litigation expenses.

13. Relationship of the Parties

The Agreement does not create a partnership, joint venture, agency, or employment relationship. Each party is responsible for its own employees.

14. Force Majeure

Seller is not liable for failure or delay due to causes beyond its control (e.g., natural disasters, pandemics, labor disputes, etc.).

15. Assignment

Buyer may not assign the Agreement without Seller’s written consent. Seller may assign with written notice.

16. Third Party Beneficiaries

Except for Seller Indemnitees, the Agreement confers no rights to any third parties.

17. Headings; Construction

Headings are for convenience only. The Agreement shall not be construed against either party due to authorship.

18. Severability

If any provision is found unenforceable, the remainder of the Agreement shall remain valid.

19. Notices

All notices must be in writing and delivered via hand delivery, registered mail, certified mail, or overnight mail to the addresses in the Agreement.

20. Binding Effect

The individuals signing the Agreement warrant that they are authorized to bind their respective parties.

21. Entire Agreement

The Agreement (including these Terms) is the entire agreement and supersedes all prior communications, whether oral or written.

22. Modification; Waiver

The Agreement may only be modified by written amendment signed by both parties. No waiver is valid unless in writing and signed.