Terms and Conditions
TERMS AND CONDITIONS OF SALE
1. CHANGE AND CANCELLATIONS. Buyer may request changes or additions to the Product consistent with Seller’s specifications and criteria. In the event such changes or additions are accepted by Seller, Seller may revise the price and dates of delivery. Buyer cannot cancel orders. ALL SALES ARE FINAL.
2. TERMS OF PAYMENT. Buyer shall pay Seller the full purchase price and all related taxes, costs and expense in connection with any Products order at the time of order. Notwithstanding anything to the contrary contained herein, Seller shall not be obligated to and shall not ship any Product to Buyer unless payment is timely received by Seller.
3. SHIPMENT AND RISK OF LOSS. All shipments are F.O.B. point of shipment. Risk of loss or damage and responsibility shall pass from Seller to Buyer upon delivery to and receipt by carrier. Any claims for shortages or damages suffered in transit are the responsibility of Buyer and shall be submitted by Buyer directly to the carrier. Shortages or damages must be acknowledged and signed for at the time of delivery. While Seller will use all reasonable commercial efforts to maintain the delivery date(s) acknowledged or quoted by Seller, all shipping dates are approximate and not guaranteed. Seller reserves the right to make partial shipments. If the shipment of the Product is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all storage costs and other additional expenses resulting therefrom.
4. EXCUSE OF PERFORMANCE. Seller shall not be liable for delays in performance or for non-performance due to acts of God; acts of Buyer; war; fire; flood; weather; sabotage; strikes or labor disputes; civil disturbances or riots; governmental requests, restrictions, allocations, laws, regulations, orders or actions; unavailability of or delays in transportation; default of suppliers; shortages of labor, fuel, raw material or machinery; or technical failure where Seller has exercised ordinary care in the prevention thereof; or, unforeseen circumstances or any events or causes beyond Seller’s reasonable control. Deliveries or other performance may be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer in the event of any of the foregoing. If cancelled by Seller due to no fault of Buyer, Seller shall refund the down payment.
5. RETURNS. There are no returns. All sales are final.
6. LIMITED WARRANTY. Subject to the limitations of this Section and Section 7, Seller warrants that the Products manufactured by Seller will be free from defects in material and workmanship under normal use and regular service and maintenance for a period of one (1) year for the Equicizer Classic from date of shipment by Seller (“Warranty Period”) except under the following conditions when the product is used for programs, organizations, schools, racetracks or other training facilities where excessive use from multiple persons occurs, in which case the LIMITED WARRANTY shall only meet the period of 6 months and ten (10) years for the Equicizer Elite from date of shipment by Seller (extended “Warranty Period”) except under the following conditions when the product is used for programs, organizations, schools, racetracks or other training facilities where excessive use from multiple persons occurs, in which case the extended LIMITED WARRANTY shall only meet the period of five (5) years. If Buyer discovers a warranty defect within the Warranty Period and Buyer notifies Seller thereof in writing during the Warranty Period, Seller shall, at its option, repair, correct or replace F.O.B. point of manufacture or refund the purchase price for that portion of the Products found by Seller to be defective. Failure by Buyer to give such written notice within the applicable time period shall be deemed an absolute and unconditional waiver of Buyer’s claim for such defects. Products repaired or replaced during the Warranty Period shall be covered by the foregoing warranty for the remainder of the original Warranty Period. This warranty shall not apply to and does not coverany Product: (1) which has been repaired or altered by parties other than Seller in any manner so as, in Seller’s judgment, to affect its serviceability or proper operation; (2) which has been subjected to improper handling, installation, operation, maintenance, repair, modification or alteration; or (3) which has been subjected to misuse, negligence, abuse, accident, abnormal wear and tear, or deterioration caused by chemicals or other substances or corrosion. Buyer assumes all other responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of Products.
7. LIMITATION OF REMEDY AND LIABILITY. THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THIS AGREEMENT INCLUDING ANY WARRANTY HEREUNDER SHALL BE LIMITED TO REPAIR, CORRECTION OR REPLACEMENT, OR REFUND OF THE PURCHASE PRICE. SELLER SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE AND IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL SELLER’S LIABILITY TO BUYER EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC PRODUCT PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. BUYER AGREES THAT IN NO EVENT SHALL SELLER’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXTEND TO INCLUDE INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES. The term “consequential damages” shall include, but not be limited to, loss of anticipated profits, business interruption, loss of use or revenue, cost of capital, personal injury or loss or damage to property or equipment.
8. INTELLECTUAL PROPERTY RIGHTS. Buyer acknowledges and agrees that all copyright, patent, trademark and other intellectual property rights in and to the Products are owned exclusively by Seller and Buyer shall not copy, duplicate, reverse engineer or adapt the Products without Seller’s prior written consent, nor shall Buyer attempt to develop any product that contains the “look and feel” of any of the Products.
9. GENERAL PROVISIONS. These Terms and Conditions supersede all other communications, negotiations and prior oral or written statements regarding the subject matter of these Terms and Conditions. No change, modification, rescission, discharge, abandonment, or waiver of these terms and conditions shall be binding upon the Seller unless made in writing and signed on its behalf by a duly authorized representative of Seller. No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement these Terms and Conditions shall be binding unless hereafter made in writing and signed by the party to be bound, and no modification or additional terms shall be applicable to this agreement by Seller’s receipt, acknowledgment, or acceptance of purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to those set forth herein. Any such modifications or additional terms are specifically rejected by Seller. No waiver by either party with respect to any breach or default or of any right or remedy, and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound. All typographical or clerical errors made by Seller in any quotation, acknowledgment or publication are subject to correction. The validity, performance, and all other matters relating to the interpretation and effect of this agreement shall be governed by the laws of the state of New York without regard to its conflicts of laws rules. Buyer and Seller agree that the Federal and State Courts located in Kings County in the State of New York shall have exclusive jurisdiction over all actions and disputes arising in connection herewith. No action, regardless of form, arising out of transactions relating to this contract, may be brought by either party more than two (2) years after the cause of action has accrued.