3FFICIENT (“Company”) and/or its affiliates provide website features to you subject to the following terms and conditions. Please read them carefully. In addition, when you use any current or future Company service or business you also will be subject to the guidelines, terms and agreements (“Terms”) applicable to such service or business. If these conditions are inconsistent with such Terms, the Terms will control.
Please review our Privacy Notice, which also governs your visit to 3fficient.com, to understand our practices.
When you visit 3fficient.com or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
All content included on this site, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of Company or its content suppliers and protected by United States and international copyright laws. The compilation of all content on this site is the exclusive property of Company and protected by U.S. and international copyright laws. All software used on this site is the property of Company or its software suppliers and protected by United States and international copyright laws.
SALE OF PRODUCTS AND SERVICES
These Terms and Conditions of Sale, all attachments hereto and all referenced specifications, drawings, notes, instructions and other written materials and information are incorporated herein and are made a part of these Terms and Conditions of Sale (collectively, these “Terms and Conditions”) and together constitute the entire agreement between Company and the customer to whom these Terms and Conditions are delivered (“Buyer”) in connection with the purchase and sale of any of the products listed on the quote attached hereto (the “Products”) and supersedes all purchase orders and related prior communications, understandings and agreements. In the event of a conflict between these Terms and Conditions and any other agreement between Company and Buyer relating to the Products, the terms of these Terms and Conditions shall control. These Terms and Conditions may not be amended except in writing signed by Company and Buyer.
1. PRICING AND PAYMENT.
1.1. Pricing. The prices of the Products are set forth on the quote. Prices are exclusive of all taxes, customs duties or similar tariffs and fees and shipping and insurance charges, all of which shall be Buyer’s responsibility.
1.2. Services. In the event Buyer requests services not expressly provided under these Terms and Conditions (including without limitation, training and installation services), such services shall be specified in a written Statement of Work, signed by Company and Buyer, specifying the services to be performed and the fees to be paid by Buyer.
1.3. Payment. With respect to each order for the Products submitted by Buyer, Buyer shall pay to Company one hundred percent (100%) of such order at the time the order is submitted to Company. For wholesale customers and custom fabricated products, a minimum fifty percent (50%) down payment of the total amount of the order amount must be submitted to Company at the time of order with the balance of the order amount due and payable prior to shipment of order. For turnkey service projects, a minimum fifty percent (50%) down payment of the total quoted estimate amount must be submitted to Company at the time of order with forty percent (40%) due and payable at substantial completion of work and the balance due at acceptance of work. Company’s fulfillment of any order or mechanic’s lien is conditioned upon receipt of payment in full. All payments shall be made in U.S. dollars in the United States by credit card, check or wire transfer of immediately available funds to an account specified by Company in writing. All payments not received when due shall be subject to an additional charge of one and one-half percent (0.35%) per week of the unpaid amount or the maximum rate permitted by law, whichever is less, until the date of payment.
2. DELIVERY AND ACCEPTANCE.
2.1. Cancellation and Rescheduling. Prior to the scheduled date of shipment, Buyer may cancel any or all Product on order upon giving timely written notice and upon payment of the following cancellation charges for each unit cancelled. The cancellation charges, which are intended as liquidated damages and not penalties, are as follows:
- 0-5 days. 15% charge
- 5-15 day. 12.5% charge
- 16-30 days. 10% charge
- 31 days or more. 5% charge
2.2. Delivery. Products are delivered FOB Company’s plant or other place of origin. Shipments will be made to the delivery address specified on Buyer’s purchase order.
3. WARRANTY; DISCLAIMER.
3.1. Warranty. Company warrants to Buyer for a period of fifteen (15) days from the date of shipment, that the Products will be manufactured in compliance with industry accepted quality standards and be free from material defects in material and workmanship. The foregoing warranty shall not apply if (i) a Product is modified, altered or used not in accordance with any written instructions provided by Company with each shipment of the Product (the “Instructions”), (ii) a Product is not maintained and stored in accordance with the Instructions, (iii) after a Product has been combined or mixed with any other compound, solution or substance not supplied by Company, (iv) a Product is subjected to misuse or abnormal conditions or treated with abuse, negligence or other improper treatment or (v) a Product’s failure is due to handling, shipping or formulary instability.
3.2. Remedies. Products delivered to Buyer which do not comply with the foregoing warranty and are returned to Company within twenty (20) days of shipment will be replaced, at Company’s expense. The foregoing remedies shall be Buyer’s sole and exclusive remedy, and Company’s entire liability, in the event of a breach of any of the warranties set forth in Section 3.1 above.
3.3. Disclaimer. COMPANY MAKES NO WARRANTIES OR CONDITIONS (OTHER THAN AS EXPRESSLY PROVIDED IN SECTION 3.1 ABOVE) WITH RESPECT TO THE PRODUCTS, OR ANY SERVICES AND DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FURTHER, COMPANY DOES NOT WARRANT THE USE, OR THE RESULTS OF THE USE (INCLUDING THE EFFECTIVENESS, OR LACK OF EFFECTIVENESS, OF THE PRODUCTS), OF THE PRODUCTS.
4. PROPRIETARY INFORMATION. Buyer acknowledges it may obtain Company’s confidential and proprietary information (“Proprietary Information”). Such Proprietary Information may include, but is not limited to, trade secrets, know-how, inventions, techniques, processes, formulas, chemistry, schematics, pricing information and sales and marketing plans, and third party confidential information. Buyer shall at all times keep in trust and confidence all Proprietary Information it receives regarding Company and/or its products (including the Products) and shall not use such Proprietary Information, other than as contemplated by herein, nor shall it disclose any such Proprietary Information to any third party without Company’s prior written consent. Buyer hereby certifies that neither it nor any of its affiliates shall, or attempt to i) resell or otherwise distribute any of the Products, (ii) reproduce, generate, or create, through reverse engineering or otherwise any of the Products or the chemistry used in any of the Products, (iii) prepare chemical compounds or compositions that are derivatives, improvements or modifications of any of the Products, or (iv) use of the Products for any purpose other than as permitted under this Agreement, or authorize any third party to do any of the foregoing.
5. TEST DATA. Buyer acknowledges and agrees that Company shall have the unrestricted right to use and publish any and all test data relating to Buyer’s use of any of the Products for Company’s business purposes including, without limitation, research, product development and marketing, provided that Company shall not identify Buyer as the source of such data.
6. EXPORT CONTROLS. Buyer shall, at all times, comply with the U.S. Foreign Corrupt Practices Act and all export laws, restrictions, national security controls and regulations of the United States and other applicable foreign agency or authority and shall not export or re- export, or allow the export or re-export of any Product or Proprietary Information without all required licenses and proper authorizations.
7. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS AND CONDITIONS, COMPANY SHALL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS AND CONDITIONS UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY AMOUNT IN EXCESS OF THE PURCHASE PRICE OF THE PRODUCT GIVING RISE TO LIABILITY, (II) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, OR (III) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES.
8. INDEMNIFICATION. Buyer shall defend, indemnify and hold Company, and its directors, officers and employees harmless from and against any and all third party claims, demands, liabilities, losses, damages, costs and expenses (including, without limitation, attorneys’ fees and costs), directly or indirectly arising out of or resulting from (i) any failure of Buyer or any of its employees, agents or subcontractors to use the Products in accordance with the Specifications and the Instructions, (ii) a breach by Buyer of these Terms and Conditions or (iii) any property damage or personal injury in connection with Buyer’s use, handling or storage of the Products.
9. ASSIGNMENT. Buyer’s rights and obligations under these Terms and Conditions may not be assigned or transferred by Buyer without the prior written consent of Company. Any purported assignment in violation of this Section 9 shall be null and void.
10. FORCE MAJEURE. A party shall not be liable for non-performance or delay in performance (other than of payment or confidentiality obligations) caused by any event reasonably beyond the control of such party including, but not limited to, wars, hostilities, revolutions, acts of terrorism, riots, civil commotion, national emergency, strikes, lockouts or other labor disputes or shortages or inability to obtain materials or equipment, unavailability of supplies, compliance with laws or regulation (including, without limitation, those related to infringement), epidemics, fire, flood, tsunami, earthquake, force of nature, explosion, embargo, or any act of God, or any law, proclamation, regulation, ordinance or other act or order of any court, government or governmental agency.
11. PUBLICITY. Unless Buyer notifies Company otherwise in writing, Buyer agrees that Company may use Buyer’s name and logo on Company’s website (including a link to the home page of Buyer’s website) and in Company’s marketing materials relating to the Products for the purpose of referring to Buyer as a customer.
12. NOTICE. Any notice, approval or consent hereunder shall be in writing and will be deemed to have been duly given upon receipt if mailed by registered or certified mail, postage prepaid, or delivered by overnight courier service with tracking capabilities to the respective addresses of the parties as set forth on the face of the order form submitted by Buyer (or such other addresses a party may designate by ten (10) days’ prior written notice).
13. MISCELLANEOUS. If any provision of these Terms and Conditions shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms and Conditions shall otherwise remain in full force and effect and enforceable. Any failure by a party to enforce any provision herein or right or remedy available to it on any one occasion shall not be construed as a waiver on any other occasion.
14. DISPUTE RESOLUTION. The Parties hereby agree that any and all controversies, claims, or disputes with anyone (including officers, directors, shareholders or agents), whether brought on an individual, group, or class basis, arising out of, relating to, or resulting from the Party’s performance under this Agreement including any breach of this Agreement or any claim related to the Product, shall be subject to the following dispute resolution procedure: (1) First, the parties agree to make reasonable attempts to resolve such disputes upon giving notice per this agreement. Any such notice shall include a short statement of its factual basis; and, (2) Second, should informal resolution not resolve the dispute, the Parties agree to submit the dispute to a non-binding mediation with each side to bearing its own fees and costs; and, (3) Finally, should the non-binding mediation not resolve the dispute, the parties agree to submit the dispute to binding arbitration administered JAMS Endispute in San Diego County, pursuant to California law, without regard to the United Nations Convention on Contracts for the International Sale of Goods. The Parties agree to waive any right to a trial by jury. The neutral arbitrator will be selected mutually by agreement of the parties, or, if the parties cannot agree, the selection of the arbitrator will be made in a manner consistent with JAMS Arbitration Rule 15 (Arbitrator Selection). The parties agree that the Arbitrator shall not have jurisdiction to enforce an award of attorney fees or to grant discovery. Each side to bear its own attorney fees and costs. No claim shall be considered by the Arbitrator in the absence of such prior notice to the other Party as specified in part 1 herein. Arbitration shall be the sole, exclusive and final remedy for any dispute between the Parties.