1. ORDERS. All orders are subject to acceptance by SafetyMax. Orders for standard Products/Services (“Standard Products/Services”) may be cancelled or rescheduled prior to shipment by SafetyMax. Notwithstanding any provision of these Terms and Conditions to the contrary, orders for training, special, custom, and other non-standard Products/Services, including products to be assembled in kit form, and/or any Products/Services identified by SafetyMax as “Non-Cancelable” and/or “Non-Returnable” (“Non-Standard Products/Services”) shall be non-cancelable and non-returnable after the order has been placed.
2. PRICES. Prices shall be as specified by SafetyMax. Prices are exclusive of taxes and other charges, including: sales, use, excise, value added and similar taxes or charges imposed by any government authority, and shipping charges imposed by SafetyMax (as specified by SafetyMax). If SafetyMax shall be liable for or shall pay any of the foregoing, the same shall be paid by Buyer to SafetyMax in addition to the price of the Products/Services.
3. TERMS OF PAYMENT. SafetyMax accepts money orders, cashier’s checks, and, in its sole discretion, major credit cards, personal checks and company checks. The full purchase price, including freight and taxes, is due at the time when goods are ordered, unless SafetyMax, in its sole discretion, approves Buyer’s creditworthiness, in which case full payment shall be due within thirty (30) days from date of shipment or as otherwise specified by SafetyMax. Buyer agrees to pay the entire amount of each invoice from SafetyMax pursuant to the terms of each such invoice without offset or deduction. SafetyMax may, in its sole discretion, change the terms of Buyer’s credit at any time, require payment in cash, bank wire transfer or by official bank check and/or require payment of any or all amounts due or to become due for Buyer’s order before shipment of any or all of the Products/Services. If SafetyMax believes in good faith that Buyer’s ability to make payments may be impaired or if Buyer shall fail to pay any invoice when due, SafetyMax may suspend delivery of any order or any remaining balance thereof until such payment is made or cancel any order or any remaining balance thereof, and Buyer shall remain liable to pay for any Products/Services already shipped and all Non-Standard Products/Services ordered by Buyer. Buyer agrees to submit such financial information from time to time as may be reasonably requested by SafetyMax for the establishment and/or continuation of credit terms. Checks are accepted subject to collection and the date of collection shall be deemed the date of payment. Any check received from Buyer may be applied by SafetyMax against any obligation owing from Buyer to SafetyMax, regardless of any statement appearing on or referring to such check, without discharging Buyer’s liability for any additional amounts owing from Buyer to SafetyMax, and the acceptance by SafetyMax of such check shall not constitute a waiver of SafetyMax’ right to pursue the collection of any remaining balance. Buyer shall pay interest on any invoice not paid when due from the due date to the date of payment at the rate of one and one-half (1-1/2%) percent per month or such lower rate as may be the maximum allowable by law. If Buyer fails to make payment when due, SafetyMax may pursue any legal or equitable remedies, in which event SafetyMax shall be entitled to reimbursement for costs of collection and reasonable attorneys fees.
4. DELIVERY AND TITLE. Unless otherwise specified in the Sales Order, a ll shipments by SafetyMax are F.O.B. point of origin and all transportation charges shall be paid by Buyer in addition to the price of the Products/Services, unless otherwise specified by SafetyMax. Subject to SafetyMax’ right of stoppage in transit, delivery of the Products/Services to the carrier shall constitute delivery to Buyer and title and risk of loss shall thereupon pass to Buyer. Selection of the carrier and delivery route shall be made by SafetyMax unless specified by Buyer. SafetyMax shall use reasonable efforts to initiate shipment and schedule delivery as close as possible to Buyer’s requested delivery dates. Buyer acknowledges that delivery dates provided by SafetyMax are estimates only and that SafetyMax is not liable for failure to deliver on such dates. SafetyMax reserves the right to make deliveries in installments. Delivery of a quantity which varies from the quantity specified shall not relieve Buyer of the obligation to accept delivery and pay for the Products/Services delivered. Delay in delivery of one installment shall not entitle Buyer to cancel other installments.
5. ACCEPTANCE OF PRODUCT. All goods sold by SafetyMax shall be deemed accepted by Buyer at the time of shipment. If Buyer notifies SafetyMax, in writing, and SafetyMax confirms, in its sole discretion, that goods received by Buyer are damaged, defective or cannot be made operational at the time of delivery, and if Buyer complies with the procedures governing return of the goods set forth in these Terms and Conditions, SafetyMax shall credit Buyer’s account for the purchase price of the goods upon return of the goods to the SafetyMax.
6. PRODUCT RETURNS. To return unopened Products/Services, Buyer must request a Return Merchandise Authorization (“RMA”) Number, which may be issued by SafetyMax in its sole discretion. All Products/Services to be returned must be unopened, leaving the manufacturer’s external seal intact. If a Product has been opened, SafetyMax will have no obligation to accept the return of such Product/Services. Returned Products/Services must be in original manufacturer’s shipping cartons complete with all packing materials. All Products/Services for return shall be returned freight prepaid in the manner specified in the RMA. Restocking fees will apply to returned Products. If returned Products/Services are claimed to be defective, a complete description of the nature of the defect must be included with the returned Products/Services. Products/Services not eligible for return shall be returned to Buyer, freight collect. If Buyer receives shipment of goods over the quantity ordered in the Sales Contract, or an incorrect Product, Buyer shall notify SafetyMax and return such goods with manufacturer’s external seal intact within five days of Buyer’s receipt thereof; otherwise Buyer will be responsible for the purchase price of such goods. If Buyer shall fail to return the original part within thirty days, then Buyer shall not receive a credit and shall pay the full purchase price for the upgrade. Buyer is responsible for freight on all returns and must be able to demonstrate proof of delivery.
7. FORCE MAJEURE. SafetyMax will make every effort to complete shipment of the goods described herein, but in no event shall SafetyMax be liable for failure to fulfill its obligations herein or for delays in delivery due to causes beyond its reasonable control, including, but not limited to, acts of God, natural disasters, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, riots, war, acts of terrorism, delays in transportation or inability to obtain labor or materials through its regular sources. SafetyMax’ time for performance of any such obligation shall be extended for the time period of such delay or SafetyMax may, at its option, cancel any order or remaining part thereof without liability by giving notice of such cancellation to Buyer.
8. WARRANTIES. In the case of all goods sold hereunder, the only applicable warranties will be provided by the manufacturers of such goods. SafetyMax shall assign to Buyer any warranty delivered to it by the manufacturer of such Product and such warranty shall expressly be in lieu of any other warranty by SafetyMax. SafetyMax makes no other warranty, express or implied, with respect to the Products/Services. IN PARTICULAR, SAFETYMAX MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PRODUCTS/SERVICES OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OR RESPECTING INFRINGEMENT.
9. LIMITATION OF LIABILITIES. BUYER SHALL NOT IN ANY EVENT BE ENTITLED TO, AND SAFETYMAX (AND SAFETYMAX’S VENDORS AND LICENSORS) SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION COSTS, REMOVAL AND/OR REINSTALLATION COSTS, PROCUREMENT COSTS, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO REPUTATION OR LOSS OF CUSTOMERS, EVEN IF SAFETYMAX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER’S RECOVERY FROM SAFETYMAX FOR ANY CLAIM SHALL NOT EXCEED BUYER’S PURCHASE PRICE FOR THE PRODUCT(S) GIVING RISE TO SUCH CLAIM IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. SAFETYMAX SHALL NOT BE LIABLE FOR AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD SAFETYMAX HARMLESS FROM ANY CLAIMS BASED ON SAFETYMAX’S COMPLIANCE WITH BUYER’S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR INFORMATION SUPPLIED BY BUYER TO SAFETYMAX IN CONNECTION WITH THE DELIVERY OF PRODUCTS/SERVICES OR MODIFICATION OF ANY PRODUCTS/SERVICES BY PARTIES OTHER THAN SAFETYMAX, OR USE IN COMBINATION WITH OTHER PRODUCTS/SERVICES.
10. USE OF EMERGENCY ACTION PLAN; USE OF PRODUCTS/SERVICES IN LIFE SUPPORT OR OTHER DISASTERS. (1) Buyer acknowledges that the use of the Products/Services (including any Emergency Action Plan or any other safety document prepared for Buyer in connection with an emergency, life support or other disasters is at Buyer’s sole risk and buyer is strongly urged to test the Products/Services and determine the efficacy, safety and suitability of the Products/Services for their own purposes; (2) Buyer agrees that SafetyMax and the manufacturer of the Products/Services are not liable, in whole or in part, for any claim or damage arising from such use; and (3) Buyer agrees to indemnify, defend and hold SafetyMax and the manufacturer of the Products/Services harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use of the Products/Services. In addition, Buyer understands that while reasonable efforts will be made to ensure the accuracy and efficacy of any Emergency Action Plan or any other safety document prepared by SafetyMax, however SafetyMax has compiled the information as supplied by the client and SafetyMax takes no responsibility or liability of any kind for its accuracy or completeness or for any additions or modifications make to the plan. Buyer agrees to review the Plan for its accuracy prior to its use.
11. STATEMENTS AND ADVICE. If statements or advice, technical or otherwise, are offered or given to Buyer, such statements or advice shall be deemed to be given as an accommodation to Buyer and without charge and SafetyMax shall have no responsibility or liability for the content or use of such statements or advice and such advice/accommodation shall in no way be deemed a warranty or assurance of any kind.
12. GENERAL. Any provision hereof which is prohibited or unenforceable or ineffective, the remaining provisions hereof shall remain valid and/or effective and enforceable. These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of California (without regard to the conflicts of laws provisions thereof or the UN Convention on the International Sale of Goods) and excluding any law or principle which would apply the law of any other jurisdiction. In the event of any dispute or lawsuit relating to the Products/Services or this Agreement, the parties to jurisdiction of the courts of SanFrancisco, CA. The obligations, rights, terms and conditions hereof shall be binding on the parties hereto and their respective successors and assigns. The waiver of any provision hereof or of any breach or default hereunder shall not be deemed a waiver of any other provision hereof or breach or default hereunder. These terms and conditions may only be waived or modifiedin a written agreement signed by an authorized representative of Safetymax.
