1.1 These terms and conditions apply to this offer by Ecofill USA, LLC (“Ecofill”) and any agreements that arise as a result thereof.
1.2 The customer or buyer as noted on the front hereof is designated as the ‘Customer’.
1.3 Any standard terms or conditions required by the Customer shall not apply and are expressly excluded.
2.1 All offers to the Customer are non-binding until accepted in writing.
2.2 Unless the Customer accepts the offer within 30 days, it will expire automatically.
2.3 If the offer is solicited by the Customer and has a value of $35,000.00 or more, but is not accepted, Ecofill has the right to charge the Customer for all costs it incurred to prepare the offer.
2.4 Offers do not apply to sales made in addition to any sales contained in the offer, unless agreed otherwise by Ecofill and Customer in writing.
Intellectual property rights of Ecofill
3.1 Ecofill retains all property and intellecutal rights to any goods or products offered to the Customer.
3.2 The Customer is not allowed to change or modify Ecofill’s goods or products, unless any change or modification is necessary due to the nature of the goods or products and is memorialized by a written agreement.
3.3 Unless agreed otherwise in writing, all designs, sketches, drawings, films, software, electronic data and other materials or files created by Ecofill for its goods and products or for the Customer remain its property and is proprietary, regardless whether these were given to the Customer or a third party designated by the Customer.
3.4 All designs, sketches, drawings, films, software and other materials or files, to be delivered by Ecofill as part of any offer are for the exclusive use of the Customer and can not be shared, reproduced, or dissemenated to any third party without the prior written approval of Ecofill.
3.5 In the event the Customer violates §3.4 of the these terms and conditions, the Customer will owe Ecofill a penalty of $35,000.00, immediately due and payable, as well as a penalty of $1,000.00 for each day any violation continues. This penalty may be claimed in addition to any damages or compensation allowable by law.
Execution of Agreement
4.1 Ecofill will honor any agreement according to the best its it ability and in accordance with the reasonable business practices.
4.2 When any agreement requires the Customer to provide Ecofill with information, specificaitons, a deadline schedule, or design requirements for performance of the agreement and for Ecofill’s production of goods or products, the Customer shall ensure it is timely delivered to Ecofill.
4.3 If the necessary information referenced in §4.2 is not delivered timely to Ecofill, Ecofill shall be entitled to suspend performance and to charge the Customer for all costs that arise from any delay.
4.4 If the Customer provides Ecofill with incomplete or inaccurate information, specificaitons, deadline dates, or designs as part of any agreement, or as part of any performance requirements, Ecofill shall not be liable for any increased costs, damages, or inadequate goods or products that result therefrom.
5.1 Delivery of any goods or products will be made from Ecofill’s factory, shop, or warehouse, whatever the case may be.
5.2 Any agreed delivery period is approximate.
5.3 If Ecofill does not make delivery of its goods or products by the requested date, the Customer shall give Ecofill written notice of the delayed delivery and a final date for delivery of goods or products not delivered as requested.
5.4 If Ecofill does not make delivery of goods or products on a date requested by the Customer, the Customer is not entitled to any compensation, damages, or expenses for such non-timely delivery, unless Ecofill and Customer agree in writing to such damages, expenses or costs.
5.5 If any products or goods ordered by Customer require changes, modifications, revisions, or additions, the delivery time requested by Customer shall be automatically extended to allow Ecofill adequate time to complete any changes, revisions, additions, or modifications to alter their goods or products.
5.6 If Ecofill suspends its performance for any reason allowed in these terms and conditions, the time for delivery of any goods or products shall be extended for the duration of any suspension of performance.
5.7 If the delivery of any goods, products or services requested by Customer are delayed due to the weather, acts of God, worker strikes, floods, construction transportation stoppages, earthquakes, or other occurances outside of the control of Ecofill, Ecofill shall not be responsbile for any delivery delays and any delivery dates will be extended as necessay.
Transmission of risk
6.1 For any goods or products purchased by Customer, the risk of any damage, loss of theft of the goods shall become the responsbility of the Customer from the moment the goods or products are transferred to the possession of the Customer or a third party designated by the Customer.
6.2 The Customer accepts the goods or products at the moment Ecofill makes them available for pick-up or delivery, unless agreed otherwise in writing.
6.3 If the Customer fails to accept the goods or products or to provide information necessary for their delivery, Ecofill shall be entitled without further notice, to store or warehouse the goods or products at the Customer expense and risk.
6.4 Stocking, transportation and delivery shall be performed at the risk of the Customer.
6.5 If a Customer’s purchase involves a trade-in of goods or products, the risk of loss, damage or theft of the goods or products traded-in shall continue to be borne by the Customer until the moment at which the goods will have been transferred into the possession of Ecofill.
7.1 All prices designated by Ecofill do not include California sales tax, postage, fees, costs of transportation and packaging and costs of travel and storage, unless agreed otherwise in writing.
7.2 If, during the period between the offer and its acceptance, the price of the goods or products or the price of delivery or storage increases, Ecofill shall be entitled to charge this increase to the Customer.
7.3 Ecofill’s right to charge for increases as noted in §7.2 also applies to price changes which occur between the execution of the agreeemnt and any delayed delivery date due to the Customer’s fault.
7.4 Payment of any price increase must be made together with payment of the agreement amount or with the Customer’s final payment.
8.1 Ecofill shall not be held to perform any obligation under the agreement, (be liable for damages caused the Customer) if Ecofill is impeded from performing so for longer than two months due to any circumstance that is the fault or others or due to any law, judicial act or regulation (i.e. force majeure).
8.2 Apart from any definition of force majeure in law, force majeure is defined as any circumstance that could not be foreseen at the time of the execution of the agreement and which is beyond Ecofill’s control, including failure of Ecofill’s suppliers and/or subcontractors to fulfill their obligations to Ecofill or to do so in good time, and including weather conditions, earthquakes, fires, loss or theft of tools, loss of processed materials, road blockades, strikes or work stoppages and import or trade restrictions.
8.3 Ecofill shall be entitled to invoke force majeure if the circumstance that prevents Ecofill’s performance occurs after the time Ecofill is obligated to perform under its agreement with the Customers.
8.4 If Ecofill has performed or can perform its obligations in part when an act of force majeure occurs, and if the performed or to be performed part of the obligation has a value of its own, Ecofill shall be entitled to invoice the Customer this value separately. The Customer shall pay this amount as if it were due as part of a separate agreement.
8.5 If an act of force majeure delay Ecofill’s performance of the agreement for more than one month, Ecofill may choose to suspend its performance of the agreement and shall not be liable for any damages to the Customer which may incur as a result of the suspension.
9.1 If the agreement for any reason whatsoever should be cancelled, the Customer shall not be entitled to compensation for damages that result from the cancellation. Ecofill shall be entitled to compensation from the Customer for all its damages that result from the cancellation, including lost profits, material expenses, delivery and storage fees and costs incurred in its performance up to the date of cancellation.
Execution of Ecofill’s work
10.1 Whenver Ecofill requires the use of the Customer’s facilities, equipment or employees, the Customer shall ensure that Ecofill can perform its work without interruption or interference and that in the execution of the work, Ecofill has access to all necessary utlities, including gas, water, electricity, internet access, air conditioning and a storage room for materials.
10.2 The Customer shall provide the facilities noted above without charge.
10.3 If materials owned of rented by Ecofill are stored at the Customer’s facility or in another agreed upon place, the Customer shall be liable for damage any such material due to loss, theft , fire, flooding or tampering with the materials.
10.4 In case of any delay of Ecofill’s performance due to interferance or interruption by the Customer, either by failing to provide the appropriate faciltiies, equipment, or employees, or to provide ultities or storage space, Customer shall be liable for any such delay and any costs or damages that result from the delay.
10.5 If the Customer requests any alterations to Ecofill’s work, and the alteration results in any reduced or extra work, or if the Customer has not provided adequate information to Ecofill to perform its work, Ecofill may charge for the cost of the alteration. Charges for alterations shall begin if the alteration results in a 10% change in the costs or expenses stated in the offer and in the amount of work Ecofill is performing.
10.6 Charges for extra work shall be calculated on the basis of the value of the price applicable at the time the extra work is performed. If the work is reduced based on alterations by the Customer, the reductions in the price shall be calculated on the basis of the value applicable at the time the agreement was executed by Ecofill and the Customer.
Completion of the work
11.1 For any agreement that requires work by Ecofill, the work shall be deemed to have been completed when: a) the work has been (partially) used by the Customer; b) the Customer has approved the work; c) the Customer does not approve the work on account of minor defects which Ecofill can repair within a reasonable period of time and which do not prevent the use of the work; d) Ecofill gives written notice to the other party that the work has been completed and the Customer does not indicate in writing within seven days thereafter whether or not the work has been approved and; e) the Customer does not approve the work and does not specify with particularity in reason in writing within seven days.
11.2 If the Customer does not approve the work and specifies the reasons in writing, the Customer shall give Ecofill the opportunity to evaluate the specified resasons and to inspect its work.
11.3 If both parties agree that the Custoemr’s witholding of approval is justified, Ecofill shall be given the opportunity to correct or rectify the work, after which the customer may use it. The provisions of this clause shall then apply to the corrected work once again.
Liability to Customer
12.1 In the event Ecofill provides defective goods or products to the Customer, or cannot provide, after its best efforts, work that meets the requirements of the Customer, Ecofill is only liable to the Customer for the amount paid by the Customer for the defective goods or products, or the amount paid by the Customer for any work performed by Ecofill.
12.2 In the event of Ecofill’s non-performanence of its agreement with Customer due to any strikes, work stoppages by other parties, the weather, acts of God or other events of force majeure, Ecofill is not liable for the Customer’s consequential losses or damages, or loss of profits, or liable to the Customer for any damages to Ecofill’s goods or products which are damaged by third parties while at the Customer’s facility or place of business, or for damages caused by any intentional, deliberate or reckless acts of any third parties or by the Customer.
12.3 To the fullest extent permitted by law, the Customer shall defend, indemnify and hold Ecofill and its principals, shareholders, directors, officers, employees, representatives, agents, successors and assigns, free and harmless from any and all claims, liabilities and damages, known and unknown, arising directly or indirectly from Ecofill’s performance pursuant to the Customer’s orders or request for products, work, services, or shipments, or otherwise by reason of the Customer’s use of any good or product provided to Ecofill, except as to claims arising from Ecofill’s intentional misconduct or gross negligence
12.4 The period of limitation for all claims the Customer may have against Ecofill shall be one year.
Warranties to Customer
13.1 No expressed or implied warranties are made by way of these terms and conditions, and Customer acknowledges that any warranty made by Ecofill must be made separately in writing whether it is for goods, products, or work.
13.2 If any warranty is made to the Customer, the Customer may only request that Ecofill honor the warranty after Customer has complied with all of its obligations to Ecofill.
13.3 Ecofill does not warrant used or traded goods, nor does Ecofill warrant any goods or products sold by the Customer to third parties, or for third parties.
13.4 All warranties made by Ecofill are valid for a period of six months after delivery of goods or products, or completion of work, unless explicity agreed in writing between Customer and Ecofill to a longer term.
13.5 If Ecofill issues any warranty for its goods, products, or services, such warranty shall apply only to its goods, products or services if Ecofill is a sole manufacturer and provider of the goods, products or services.
13.6 If Ecofill issues any warranty to Customer for goods, products, or services, such warranty is void and unforecable if the Customer improperly uses, stores, transports or handles the goods or products, or alters the goods or products purchased from Ecofill. Any warranty is also void and unenforceable if the Customer misuses any services provided by Ecofill or has any third party alter, revise, or improperly use any of Ecofill’s goods, products or services, or uses the goods, products or services provided by Ecofill in a way that such goods, products, or services were not intended to be used, unless written permission is given by Ecofill in advance.
13.7 If the goods delivered by Ecofill have been produced by a third party, any warranty of such is limited to the warranty offered by the producer of the goods.
14 Notifications of Defects or Invoices
14.1 When the Customer finds visible defects with the goods or products provided by Ecofill, the Customer shall notify Ecofill of such defects in writing within three days of delivery and such writing must specify the defects.
14.2 When the Customer finds non-visible defects with the goods or products provided by Ecofill, the Customer shall notify Ecofill of such defects in writing after their delivery, but no later than two weeks after delivery and such writing must specify the defects found.
14.3 If Customer finds any errors or problems with any invoice by Ecofill, the Customer shall notify Ecofill of such errors or problems in writing within eight days of receipt of the invoice. Any notification of errors or problems must specify with particularity the problems or errors with Ecofill’s invoice.
14.4 If the Customer does not comply with the above provisions regarding notification of any errors or defects, or problems with Ecofill’s invoicing, Customer waives any right to later claim any defect or problem with Ecofill’s goods, products, or its invoices.
14.5 If Customer notifies of Ecofill of any visible or non-visibile defects with any its goods or products, or any errors or problems with its invoices, the Customer will allow Ecofill to evaluate the contents of the notification and correct or rectify any mistakes or errors, or replace any defective goods or products.
14.6 If Customer returns to Ecofill any purportedly defective goods or products prior to notifying Ecofill of any defects or problems, the Customer shall bear the cost of returning the purportedly defective goods or products to Ecofill.
Payment to Ecofill
15.1 Payment to Ecofill shall be made pursuant to the terms mentioned on each invoice to the Customer and in the currency required on the invoice. If no date or term of payment is mentioned on the invoice, the term shall be 14 days from the date of the invoice.
15.2 In the case where there is no agreement between Ecofill and the Customer regarding payment for goods, products, payment shall be made pursuant to the following schedule: 40% of the total price is due at the time the order is placed, 50% of the total price is due when the material, goods, or products are supplied, and the final 10% is due upon final delivery of any goods or products, or completion of any work or services. Ecofill shall provide the Customer with an invoice reflecting each payment.
15.3 In any case where the Customer is considering liquidation, bankruptcy, suspension of payments to creditors, debt restructuring, assignment for the benefit of creditors, or a business restructuring, or it is threatened any type of seizure of its assets, accounts, or business operations, any amount due to Ecofill shall become immediately due and payable.
15.4 Customer acknowledges that payment to Ecofill on a final invoice which does not include accumulated late fees, extra charges, interest, or other penalties, shall not constitute final payment of the amount due.
15.5 The Customer shall be obligated to pay any late fees or charges due to its default, including any collection costs, service of process fees, and fees incurred as a result of non-delivery of any goods or products or non-completion of any services.
15.6 The Customer shall not be entitled to set-off claims against Ecofill or to suspend payment.
Reservation of Rights
16.1 In any case where the Customer has not fulfilled its obligations under its agreement with Ecofill, Ecofill shall retain title and all proprietary rights to any goods or products, or any designs, sketches, drawings, films, software, electronic data, materials or files delivered to Customer until such time as Customer completes its obligations to Ecofill or takes reasonable action to rectify any failure to perform its obligations under any agreement with Ecofill.
16.2 The Customer may not pledge, encumber, or use as security any goods, products, or services, provided by Ecofill as long as Ecofill retains any proprietary right, title or interest in its goods, products or services provided to the Customer.
16.3 As long as Ecofill retains any title, proprietary right, or interest in its goods, products, or services provided to the Customer, the Customer shall obtain a policy of insurance for such goods, products or services, and name Ecofill as an additional insured. Such insurance must ensure any of the goods, products or services from damage or loss due to fire, theft, flooding, acts of nature, misuse, tampering, or alterations.
16.4 The Customer may not sell any goods, products, or services provided by Ecofill as long as Ecofill retains any proprietary right, title or interest in such goods, products or services.
16.5 If at any time Ecofill seeks to exercise its title, proprietary rights, or interest in any goods, products, or services provided to the Customer, the Customer gives its unconditional and irrevocable permission to Ecofill to enter the Customer’s place of business or facility and retake possession of the goods, products or services.
16.6 If Ecofill is unable to retake possession of any goods, products or services as noted allowed §16.5, because such delivered goods, products or services have been sold, altered, changed, damaged, removed, or lost, the Customer shall be obligated to pay Ecofill the amount of damages it has suffered as a result of such action, and grants Ecofill a lien on its assets to secure its damages for such loss, removal, sale or alteration.
Applicable Law, Choice of Forum, and Attorney’s Fees
17.1 If any dispute arises between Ecofill and the Customer, either over the terms of this agreement, Ecofill’s performance of its obligations under this agreement, the other party’s performance of its obligations under this agreement, or the intepreration of the terms of this agreement, the laws of the State of California shall apply to the dipsute.
17.2 The Vienna Convention on Contracts for the International Sale of Goods (CIGS) is expressly not applicable.
17.3 If any dispute arises between Ecofill and the other party, whether over the terms of this agreement, Ecofill’s performance of this agreement, the Customer’s performance of this agreement, over, the interpretation of any terms of this agreement, both parties acknowledge that the venue of that dispute will be in Orange County, California, USA, and that the parties must pursue their dispute in that jurisdiction. The prevailing party in an such dispute shall be entitle to its attorney’s fees, costs and expenses.