Terms and Conditions

GENERAL TERMS AND CONDITIONS

These terms and conditions (“Terms”) apply to the sale of the goods (“Goods”) and/or services (“Services”) by Environmental Spray Systems, Inc., a California corporation (“ESS”), to the customer (“Customer”) named on the accompanying quote (“Proposal”).

By submitting an order to ESS, Customer agrees with these Terms.  If Customer’s order has language that contradicts these Terms or the Proposal, the language in the Terms and Proposal prevail.

 

1. Delivery of Goods and Performance of Services.

1.1. Delivery of Goods.  The Goods will be delivered after ESS receives Customer’s purchase order(s) and any payment(s) due, subject to the availability of the Goods at that time. Unless otherwise agreed in writing by the parties, the Goods will be shipped to Customer’s address that is stated in the Proposal (the “Delivery Point”).  Customer is responsible for all equipment and labor reasonably needed to receive and unload the Goods at the Delivery Point.  Upon request by Customer, ESS may make partial shipments of Goods that are ready for shipment.  If for any reason Customer does not accept delivery of any of the Goods, or if ESS is unable to deliver the Goods at the Delivery Point due to Customer’s actions or inactions: (i) risk of loss to the Goods shall pass to Customer; (ii) the Goods shall be deemed to have been delivered and ready for final invoicing; and (iii) ESS, at its option, may store the Goods until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

1.2.  Title and Risk of Loss.  Delivery of the Goods is made FOB shipping point. Thus, title and risk of loss passes to Customer upon shipment of the Goods from ESS’s facility located at 7114 Convoy Court, San Diego, California, 92111 (“ESS Location”), or if the items are drop-shipped, at the origin of shipping.  ESS is not liable for any delays, loss, or damage in transit.

1.3. Performance of Services.  Customer shall: (i) provide access to Customer’s premises and other facilities so that ESS can properly perform the Services; (ii) respond promptly to ESS’s requests for information that ESS needs to perform the Services; (iii) update ESS on any changes to Customer’s materials or other property that may affect the performance of the Goods or Services; (iv) provide air, electricity, and other utilities required to properly operate the Goods; and (v) obtain and maintain all necessary licenses and comply with all applicable laws in relation to the Services before ESS performs the Services.  Customer acknowledges that unless expressly set forth in the Proposal, the Services and Goods do not include any field electrical work or preparation of other utilities that may be required to power or maintain the Goods.  If Customer prevents, regardless of intent, ESS from performing some or all of the Services, ESS shall not be deemed in breach of its obligations under these Terms.  Further, ESS will separately quote costs for a follow-up visit, and Customer is responsible for such additional costs.

1.4. Additional Work.  If Customer requests additional work that is not expressly included in the Proposal or if Customer wants to modify the scope of the Goods or Services, ESS will quote such work at ESS’s then-prevailing prices/rates. In either case, these Terms still apply.

1.5. Cancellations.  If ESS arrives at Customer’s location and cannot perform the Services due to Customer’s acts or omissions, Customer is still responsible for paying for that visit. ESS will separately quote any necessary follow-up visits.  If Customer cancels a scheduled service visit within 72 hours before the visit, there is no charge for the first rescheduled date except for the additional travel cost.  However, ESS will separately quote the cost of labor and travel costs for subsequent cancellations within the 72-hour period.

 

2. Non-Delivery and Nonconforming Goods.

2.1. Non-Delivery.  The quantity of Goods recorded by ESS on shipment from ESS’s place of business, or if the items are drop-shipped, at the origin of shipping, is conclusive evidence of the quantity received by Customer on delivery unless Customer can provide conclusive evidence otherwise.  If Customer claims a discrepancy, it must notify ESS in writing as soon as possible and no later than two (2) business days from the original date of delivery.  Outside of this timeframe, ESS reserves the right to reject any claim.  Otherwise, ESS will investigate the claim and upon confirming a discrepancy, ESS may elect to replace the Goods within a reasonable time or adjust the invoice respecting such Goods to reflect the actual quantity delivered.  Customer agrees that the remedies in this Section 2.1 are Customer’s exclusive remedies for any non-delivery of Goods.

2.2. Inspection of Goods.  Customer shall inspect the Goods as soon as possible upon receipt and no later than two (2) business days upon receipt (“Inspection Period”). Customer is deemed to have accepted the Goods unless it notifies ESS in writing of any Nonconforming Goods during the Inspection Period and furnishes any written evidence requested by ESS.  “Nonconforming Goods” means only the following: (i) Goods shipped are different than identified in Customer’s purchase order and the Proposal; or (ii) the label or packaging of such Goods incorrectly identifies its contents.

2.3. Remedies.  Upon Customer timely notifying ESS of any Nonconforming Goods pursuant to these Terms, ESS has the discretion to: (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 Customer in connection therewith.  If ESS agrees to replace Nonconforming Goods, and after ESS receives Customer’s return shipment of Nonconforming Goods, ESS shall ship to Customer the replaced Goods to the Delivery Point.  Customer acknowledges and agrees that the remedies set forth in this Section 2.3 are Customer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under this Section, all sales of Goods to Customer are made on a one-way basis, and Customer has no right to return Goods purchased under these Terms to ESS. 

 

3. Price.

3.1. Prices.  Customer shall purchase the Goods and Services from ESS at the prices (the “Prices”) set forth in the Proposal.  Such Prices are only valid until the expiration date set in the Proposal.

3.2. Expenses.  If applicable, Customer agrees to reimburse ESS for all pre-approved travel and out-of-pocket expenses incurred by ESS in connection with the performance of the Services, including additional expenses incurred to prevent any injury to damage to any person or property or other emergency situations.

3.3. Taxes.   All Prices are exclusive of all sales, use, and any other taxes, duties, fees, and charges of any kind imposed by any governmental authority on any amounts payable by Customer.  Customer shall be responsible for paying all such taxes, duties, fees, and other charges.

 

4. Payment Terms.

4.1. Payments.  Customer shall pay all invoiced amounts due to ESS per the terms set forth in the Proposal and related invoice(s).  Customer shall make all payments in U.S. dollars.

4.2. Late Payments.  At ESS’s discretion, Customer shall pay interest on all late payments at the rate of 1.5% per month on the outstanding balance.  The late payment shall be calculated monthly, starting the first day following the due date and ending on the date of final payment.  In addition to all other remedies available under these Terms or at law, ESS shall be entitled to immediately suspend the delivery of any Goods or performance of any Services and stop Goods in transit if Customer fails to pay any amounts when due hereunder.

4.3. No Set-Off or Reduction.  Customer cannot withhold payment of any amounts due to ESS by reason of any set-off of any claim or dispute with ESS, or early payment program(s) of Customer.

 

5. Limited Warranty.

5.1. Warranty on Goods.  ESS warrants to Customer that the Goods will be free from material defects in material and workmanship for the duration of the warranty period specified by the applicable manufacturer of such Goods (“Warranty Period”).  The exact warranty period depends on the specific manufacturer of the Goods, but is typically one year from the date of sale for many items.  Without limiting the foregoing, this limited warranty does not apply to any defects or damages due to: (a) transportation; (b) storage; (c) improper use; (d) failure to follow proper care and maintenance instructions; (e) unauthorized modifications; (f) combinations of the Goods with any other products; (g) unauthorized repair; (h) normal wear and tear; (i) acts of nature, or (j) external causes such as accidents, abuse, or other actions or events beyond ESS’s reasonable control.

5.2. Warranty on Services.  ESS warrants to Customer that it will perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.  The warranty for Services is in effect for twelve (12) months from the date the Services were originally performed.

5.3. Disclaimer.  EXCEPT FOR THE WARRANTIES IN SECTIONS 5.1 AND 5.2 ABOVE, ESS MAKES NO WARRANTY REGARDING THE GOODS OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE OR OTHERWISE.

5.4. Notice.  ESS shall not be liable for a breach of the warranties described in Sections 5.1 and 5.2 unless: (i) Customer gives written notice of any alleged defective Goods or Services to ESS within a reasonable time after discovery and no later than the expiration of the warranty period; (ii) Customer provides proof or purchase and any other documentation requested by ESS; (iii) ESS is given a reasonable opportunity after receiving the notice to inspect such Goods; iv) Customer (if requested to do so by ESS) returns such Goods to ESS’s place of business for the examination to take place there; and (v) ESS reasonably verifies Customer’s claim that the Goods or Services are defective.

5.5. Use.  ESS shall not be liable for a breach of the warranty set forth in Sections 5.1 or 5.2 above if: (i) Customer continues to use such Goods after giving notice per Section 5.4; (ii) the purported defect arises because Customer failed to follow ESS’s oral or written instructions as to the proper storage, installation, commissioning, use or maintenance of the Goods; and/or (iii) Customer alters or repairs such Goods without the prior written consent of ESS.

5.6. Customer Responsibility.  Customer is solely responsible for specifying its particular application requirements and for selecting the materials, equipment, and services that will meet those stated requirements. ESS’s role is limited to providing Goods and Services according to the specifications expressly stated by Customer and the agreed-upon scope of work.

5.7. Customer Support.  For questions, warranty claims, or additional information, please contact our Customer Support team at [email protected].

5.8. Remedy for Goods.  Subject to Sections 5.4 and 5.5 above, and upon verification by ESS of a valid warranty claim, ESS shall, in its sole discretion, either: (i) repair or replace such Goods (or the specific defective part), or (ii) credit or refund the price of such Goods, provided that, if ESS so requests, Customer shall first return such Goods to ESS.

5.9. Remedy of Services.  Subject to Sections 5.4 and 5.5 above, and upon verification by ESS of a valid warranty claim, ESS shall, in its sole discretion: (i) correct the defective Services at no additional cost to the customer, or (ii) credit or refund the price, in whole or partially, for such Services.

5.10. Sole Remedy.  THE REMEDIES SET FORTH IN SECTIONS 5.8 AND 5.9 ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND ESS’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTIONS 5.1 AND 5.2, RESPECTIVELY.

 

6. Limitation of Liability.

6.1. ESS IS NOT LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST REVENUE AND PROFITS, WHETHER ARISING OUT OF THE USE OR INABILITY TO USE THE GOODS OR SERVICES

6.2. IN NO EVENT SHALL ESS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO ESS FOR THE GOODS AND SERVICES SOLD HEREUNDER IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

6.3.   The limitation of liability in this Section 6.0 does not apply to: (i) liability directly resulting from ESS’s adjudicated gross negligence or willful misconduct and/or (ii) death or bodily injury directly resulting from ESS’s acts or omissions.

 

7. Compliance with Law.  Customer shall comply with all applicable laws, regulations, and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under these Terms.

 

8. Force Majeure.  ESS is not liable or otherwise responsible to Customer for any failure or delay in performing any of its obligations under these Terms if such failure or delay is caused by events or circumstances beyond the reasonable control of ESS. This includes, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, civil unrest, pandemic, strikes or other labor disputes (whether or not relating to either party’s workforce), restraints or delays affecting suppliers or carriers, or any other similar events that make it impossible, illegal, or commercially unreasonable for ESS to perform its obligations.

 

9. Party Relationships.  Nothing in these Terms creates any agency, partnership, joint venture or other relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.  The relationship between the parties is that of independent contractors.

 

10. Notices.  Where notice is required by these Terms (“Notice”), sending the Notice via email, registered mail, or a nationally recognized courier service with tracking number is sufficient if the receiving party actually received the notice.  

 

11. Choice of Law.  All matters arising out of these Terms and Proposal are governed by and construed by the laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.  Any legal action or proceeding arising out of the Terms or Proposal shall be instituted in the courts in the State of California, and in each case located in the City of San Diego and County of San Diego, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such action or proceeding.

12. Complete Agreement.  The Terms contain the entire agreement of the parties regarding the subject matter hereof, and supersedes all prior and contemporaneous written or oral understandings, agreements, or representations.  The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein. The parties may not amend the Terms except by written instrument signed by the parties.

13. Waiver.  No waiver by ESS of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by ESS. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms operates, or may be construed, as a waiver thereof.  No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

14. No Assignment of Rights.  There are no third-party beneficiaries under the Terms.  Customer shall not assign any of its rights or obligations under these Terms without the prior written consent of Company.  Any purported assignment or delegation is null and void, and no assignment or delegation relieves Customer of any of its obligations under the Terms.

 

 

Environmental Spray Systems, Inc.
General Terms and Conditions

GTC Rev. 1.0.110123