TERMS AND CONDITIONS OF SALE
STANDARD TERMS & CONDITIONS
Equinox Construction, LLC, a Delaware entity (“Seller”), hereby offers to sell to the “Buyer” identified below, the goods identified herein (the “Goods”). Seller and Buyer are collectively referred to herein as the “Parties”. Buyer may accept Seller’s offer to purchase the Goods by remitting the payment as set forth herein.
Upon receipt of payment from Buyer to Seller (such payment date being the “Effective Date”), this document (including the “Terms & Conditions” set forth in the exhibit attached hereto) shall constitute a Sale of Goods Agreement (the “Agreement”) between Seller and Buyer with respect to the Goods.
The offer to contract made herein by Seller shall not be binding upon either of the Parties until such time as Buyer accepts the offer as specified herein. Seller may withdraw the offer to contract at any time before it is accepted by Buyer.
Definitions
In these terms and conditions (“Terms”) the following words have the following meanings.
“Buyer” means the person, entity or company to whom Seller’s Sale Agreement is addressed, including its successors and approved assignees.
“Goods” means goods of any description but not limited to any and all items sold or manufactured by Seller and delivered to Buyer.
“Seller” means Equinox Construction LLC, 30 Knightsbridge Road, Suite 525, Piscataway, NJ 08854. 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.
All prices are valid for a period of fifteen (15) days after the date first set forth above. Unless designated herein or otherwise on the Sale / Agreement, the total Purchase Price includes transportation costs, freight, insurance, special handling and packaging, and any required federal, state or local sales or other taxes, duties, export or custom charges, and brokerage fees.
(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 suitable packaged for shipment in Seller’s standard containers.
Receiving and off-loading is the responsibility of the Buyer upon arrival of the cargo, using appropriate equipment. Note that for “Equinox Grids”, the products are packaged by pallet and delivered by truck with lift-gate which allows the merchandise to be off-loaded by the truck driver..
Unless inconsistent with any provision herein, the meaning of any trade term and the rights and obligations of the Parties shall be as prescribed by the current Incoterms (“Incoterms 2000” or a more recent version if and as published).
(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. Except as provided under Section 4(c)(ii), all sales of Goods to Buyer are made on a one- way basis and Buyer has no right to return Goods purchased under the Agreement to Seller.
(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. The Parties agree that any stated delivery dates are approximate and that delivery of any Goods ordered from Seller under the Agreement may be delayed for a period of time sufficient to allow Seller to manufacture and assemble or otherwise acquire the Goods for Buyer. The Parties further agree that Seller shall not be held liable to Buyer or any other party for any losses, damages, penalties, or expenses for any delay in delivery of the Goods, irrespective of the cause of delay. Notwithstanding any other terms contained in the Agreement, Seller reserves the right to refuse, cancel or delay any shipment to Buyer if any amounts due to Seller from Buyer for any reason become past due, when payment for a shipment has not been arranged to Seller’s reasonable satisfaction, or when Buyer has failed to perform any of its material obligations under this Agreement. Such refusal, cancellation or delay of any shipment shall not be deemed a breach or default of the Agreement by the Seller and Seller shall have no liability with respect thereto.
5. Disclaimer of Express and Implied Warranties.
For a period of twelve (12) months after delivery, Seller warrants that the Goods are as described in the Agreement and are free from manufacturing defect. This warranty is null and void if any Goods are misused including, without limitation, failure to follow (i) instructions of assembly, (ii) maintenance or storage requirements or (iii) any other manuals or guidelines with respect to the Goods. Buyer’s sole remedy for the breach of the above warranties is to replace the non-conforming Goods. Other than as set forth above, no other express warranty is made with respect to the Goods. If any model or sample was shown to Buyer, that model or sample was used merely to illustrate the general type and quality of the Goods and not to represent that the Goods would necessarily conform to the model or sample.
OTHER THAN AS SPECIFICALLY SET FORTH ABOVE IN THIS SECTION, THE GOODS SOLD UNDER THIS AGREEMENT ARE PURCHASED BY THE BUYER "AS IS" AND SELLER DOES NOT PROVIDE ANY WARRANTY FOR THE GOODS, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES THAT THE GOODS ARE OF MERCHANTABLE QUALITY OR THAT THE GOODS CAN BE USED FOR ANY PARTICULAR PURPOSE.
Buyer acknowledges that it has not been induced by any statements or representations of any person with respect to the quality or condition of the Goods and that no such statements or representations have been made. Buyer acknowledges that it has relied solely on the investigations, examinations, and inspections as Buyer has chosen to make and that Seller has afforded Buyer the opportunity for full and complete investigations, examinations, and inspections.
6. Limitation of Liability; Actions; Indemnification.
(a). Limitation of Liability.
IN NO EVENT SHALL SELLER BE LIABLE UNDER THE AGREEMENT TO THE BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, SHUTDOWN OR SLOWDOWN COSTS, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR OTHER ECONOMIC LOSS, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. THE LIABILITY OF SELLER, AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER UNDER THIS AGREEMENT, REGARDLESS OF LEGAL THEORY, SHALL NOT BE GREATER THAN THE ACTUAL PURCHASE PRICE OF THOSE GOODS WITH RESPECT TO WHICH SUCH CLAIM IS MADE.
Unless expressly agreed otherwise in a separate document referencing the Agreement and signed by an authorized representative of Seller, Buyer will not in any manner alter the limited warranty, warranty disclaimers and limitation of liabilities set forth herein without the prior written authorization of Seller, nor extend or make any additional warranty or representation regarding the Goods unless expressly authorized by Seller. Any violation of this provision will constitute a material breach of the Agreement.
(b). Actions.
NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THE AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT.
(c). Indemnification.
Buyer shall indemnify, defend, and hold harmless Seller, along with Seller’s affiliates and their respective officers, directors, employees, and agents (each a “Seller Indemnitee”), against all damages, claims, liabilities, losses, and other expenses, including without limitation attorneys’ fees and related costs, whether or not a lawsuit or other proceeding is filed, in any way arising out of the use of the Goods by Buyer, its customers, its vendors, or by the ultimate end-users of the Goods. Seller shall provide Buyer with prompt notice of any claim and give control of its defense and settlement to Buyer. Seller shall also cooperate in all reasonable respects with Buyer, its insurance company, and its legal counsel in its defense of such claim at Buyer’s sole expense. This indemnity shall not cover any claim in which there is a failure to give Buyer prompt notice, but only to the extent that such lack of notice prejudices the defense of the claim. Buyer may not settle any potential suit hereunder without Seller’s prior written approval, not to be unreasonably withheld, conditioned, or delayed. If Buyer fails to promptly indemnify and defend a covered claim, Seller shall have the right to defend itself, and in such case and Buyer shall promptly reimburse Seller for all of Seller’s associated costs and expenses.
7. Compliance with Laws.
Buyer represents, warrants and covenants that it shall comply with all applicable international, national, state, regional and local laws and regulations in performing its duties hereunder and in any of its dealings with respect to the Goods. Buyer acknowledges and understands that the Goods may be subject to restrictions upon export from the United States and upon resale after export. Buyer therefore represents and warrants that it shall comply fully with all relevant regulations and import and/or export control laws of the United States.
8. Intellectual Property.
Buyer acknowledges that Seller is the owner of intellectual property related to the Goods, including the all associated trademarks (the “Marks”). Buyer shall not use the Marks or any part thereof as part of Buyer’s name, nor register any name, including domain names, or mark confusingly similar to the Marks. Buyer acknowledges that it is not being licensed any right or interest of any kind in the Marks and that Buyer may not use same without the prior, written consent of Seller.
9. Authority of Seller’s Agents.
No agent, employee, or representative of Seller has any authority to bind Seller to any affirmation, representation, or warranty concerning the Goods sold under the Agreement. Unless an affirmation, representation, or warranty made by an agent, employee, or representative of Seller is specifically and expressly included within the Agreement, it does not constitute a part of the basis of the bargain between the Parties and shall not in any manner be enforceable.
10. Term and Termination.
(a). Term.
The Agreement shall commence on the Effective Date and shall continue in full force and effect until such time as all orders are completed. The rights and obligations under the Agreement, which by their nature should survive expiration or termination, will remain in effect after termination or expiration.
(b). Termination for Breach.
Either Party may terminate the Agreement at any time in the event of a material breach by the other Party that remains uncured after: (i) in the event of a monetary breach, ten (10) calendar days following written notice thereof; and (ii) in the event of a non-monetary breach, thirty (30) calendar days following written notice thereof. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either Party. Termination shall be in addition to any other remedies that may be available to the non-breaching Party.
(c). Termination for Buyer ’s Financial Insecurity.
Notwithstanding anything to the contrary contained herein, the Agreement shall terminate automatically and without notice upon the occurrence of any of the following events, each of which shall be deemed to be an incurable breach of the Agreement: (i) Buyer’s dissolution, termination of existence, insolvency or bankruptcy; (ii) the appointment of a receiver of any part of the property of Buyer; (iii) an assignment for the benefit of creditors by Buyer; (iv) the filing by Buyer of a petition in bankruptcy or under any insolvency laws or any laws related to the relief of debtors, readjustment of indebtedness or reorganization of Buyer; (v) Buyer’s failure to make repayment of its obligations for borrowed money; or (vi) Buyer’s failure to comply with any law with respect to conduct related to this Agreement, or engaging in any practice with respect to the Goods determined to be illegal or an unfair trade practice. The Agreement shall terminate immediately and automatically upon any determination by a court of competent jurisdiction that either Party is excused or prohibited from performing in full all obligations hereunder, including, without limitation, rejection of this Agreement pursuant to 11 U.S.C. §365. Such termination shall not relieve Buyer of its responsibility to receive and pay for Goods under any accepted or filled orders.
11. Governing Law and Venue.
The Agreement will be governed by and interpreted in accordance with the laws of the State of Florida, without giving effect to the principles of conflicts of law of such state. The UN Convention on Contracts for the International Sale of Goods shall not apply to the Agreement. The Parties hereby agree that any action arising out of the Agreement will be brought solely in any state or federal court located in Florida, (Miami - Dade county). Both Parties hereby submit to the exclusive jurisdiction and venue of any such court.
THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THE AGREEMENT.
12. Attorney’s Fees.
If either Party incurs any legal fees associated with the enforcement of the Agreement or any rights under the Agreement, the prevailing Party shall be entitled to recover its reasonable attorney’s fees and any court, arbitration, mediation, or other litigation expenses from the other Party.
13. Relationship of the Parties.
The relationship of the Parties hereto is that of vendor and purchaser. Nothing in the Agreement, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party’s employees or agents. Accordingly, Buyer shall not be empowered to bind Seller in any way, to incur any liability, make any statements, representations, warranties or commitments, or otherwise act on behalf of the Seller. Each Party shall be solely responsible for payment of its employees’ salaries (including withholding of income taxes and social security), workers compensation, and all other employment benefits.
14. Force Majeure.
Seller shall not be liable hereunder for any failure or delay in the performance of its obligations under the Agreement, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accidents, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, pandemics, epidemics, local disease outbreaks, public health emergencies, communicable diseases, quarantines, or acts of God, in addition to any and all events, regardless of their dissimilarity to the foregoing, beyond the reasonable control of the Seller, for so long as such force majeure event is in effect and for a reasonable period thereafter. Seller shall endeavor to provide Buyer with notice of the occurrence of such an event within ten (10) business days of its occurrence.
15. Assignment.
Buyer may not assign the Agreement, either in whole or in part, nor delegate any performance hereunder, without the express, written consent of the Seller, which consent shall be at Seller’s sole and absolute discretion. Any assignment without such consent shall be null and void. Seller may assign the Agreement upon written notice to Buyer.
16. Third Party Beneficiaries.
Other than a Seller Indemnities rights under Section 6(c) hereof, nothing in the Agreement shall be construed to give any person or entity other than the parties hereto any legal or equitable claim, right or remedy; rather, the Agreement is intended to be for the sole and exclusive benefit of the parties hereto.
17. Headings; Construction.
The headings and captions appearing in the Terms have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain. The Agreement is the result of negotiations between the Parties and their counsel. Accordingly, the Agreement shall not be construed more strongly against either Party regardless of which Party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting Party.
18. Severability.
If any provision or portion of the Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
19. Notices.
All notices or other communications required under the Agreement shall be deemed effective when received and made in writing by either (i) hand delivery, (ii) registered mail, (iii) certified mail, return receipt requested, or (iv) overnight mail, addressed to the Party to be notified at the address first set forth above.
20. Binding Effect.
It is agreed and warranted by the Parties that the individuals taking the actions required to bind the respective Party are authorized to bind the Party they represent. No further proof of authorization shall be required.
21. Entire Agreement.
The Agreement, including these Terms, is the entire agreement between the Parties with respect to the subject matter and supersedes any prior agreement or communications between the Parties hereto, whether written or oral. No course of prior dealings between the Parties and no usage of the trade shall be relevant to supplement or explain any term used in the Agreement. Acceptance or acquiescence in a course of performance rendered under the Agreement shall not be relevant to determine the meaning of the Agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection.
22. Modification; Waiver.
The Agreement may be modified only by a written amendment signed by authorized representatives of both Parties. No waiver of any term or right in the Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of the Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision thereafter.