2. Product Information. While EES uses commercially reasonable efforts to provide accurate information, the industries of which EES is a part and the jurisdictions in which the company operates and the laws and regulations applicable to those industries and jurisdictions change frequently. Therefore information contained on the Site may not be current or accurate. Because many factors go into the decision-making process of purchasing a given product and everyone’s particular circumstances and needs may differ, the Licensed Content is provided for informational purposes only. EES cannot ensure or guarantee and does not warrant that your product selection will be accurate, meet your particular needs or requirements or that the recommendations, regulations or other information provided is complete, accurate or current for your specific needs (see our disclaimer of warranties in Section 9 below). Each claim or statement about the effectiveness of EES products and/or claims or statements comparing the effectiveness of EES products to that of others is expressly limited to the country of applicability as referenced on the site and if no country is referred, the United States, unless otherwise stated on the Site. If a product or sample offered by EES through the Site is not as described, your sole remedy is to return it in its original, unused form and receive either a replacement of the product you purchased or a refund of the price you actually paid. Product description and pricing is subject to correction and change. EES may refuse or cancel product orders placed at an incorrect price, or based upon erroneous promotion terms, whether or not the order has been confirmed. Sales made through the Site, if any, are governed by EES Standard Terms and Conditions of Sale and/or Invoice-Terms and Conditions.
3. Contract Terms. These Terms and Conditions of Sale (“Terms”) constitute the agreement between the parties, to the extent not prohibited by applicable law. Acceptance of Buyer’s order and all sales by EES are expressly conditioned on these Terms. Buyer’s acceptance of products is agreement to these Terms . EES hereby rejects all terms and conditions of Buyer. Modifications, including any terms and conditions in Buyer’s purchase order are not binding on EES unless EES agrees to the modifications in writing.
4. Payment Terms. EES standard payment terms are prepaid - EES typically does not ship product prior to receiving full payment in advance. If product is shipped without prepayment then payment terms are net 30 days from the earlier of the date of invoice or date of shipment, unless specified otherwise. Goods exported from the USA will be subject to prepayment in full, contact your sales rep for bank wire instructions. EES shall have the right, in its sole discretion, to require payment before shipment or payment via letter of credit in the event that it determines that Buyer is delinquent in payment or will exceed credit limit. Overdue accounts shall bear simple interest at the rate of 1.5% per month (18% per annum) from the date of the invoice. Buyer shall pay all costs of collection of money due EES, including attorney fees. EES shall have the right to set-off all amounts due to it against payments owed by it arising out any subsequent contract between EES and Buyer, its subsidiaries, or affiliates.
5. Delivery Terms. Delivery terms are F. O. B. EES’s plant, unless specified otherwise. As a convenience, EES may prepay freight charges, and such charges may be added to the Buyer’s invoice as a separate line item or reflected in the agreed price of the product. EES may make partial shipments of Buyer orders, which shipments may be separately invoiced and shall be paid for when due, without regard to subsequent shipments. Delay in shipment or delivery of any particular portion of an order shall not relieve the Buyer of its obligation to accept the balance of the order. Regardless of the party paying freight charges, all risk of loss or damage in transit will be borne by the Buyer unless specified otherwise. Shipments shall be subject to overrun of 20% without penalty. Shipments of total quantities ordered must be taken within 10 business days of the order date, except that total quantities back-ordered are to be fully released and accepted within 6 months of the date of the order, unless otherwise agreed in writing. If not released as stated above, EES reserves the right to charge all applicable and ancillary fees and/or carrying costs. Buyer agrees that an order shall in no event be subject to cancellation except by prior written consent of EES, and then only when EES is fully reimbursed for work performed, materials used and material which has been ordered specifically for Buyer’s order.
6. Delivery Dates. Delivery dates are estimated at the date that EES accepts the Buyer’s order. EES shall endeavor to make deliveries within a reasonable time to the estimated delivery dates, but such dates are estimates of approximate dates of delivery, not a guarantee of a particular day of delivery. EES shall not be liable to the Buyer for any damages, whether incidental, consequential or otherwise, for failure to fill orders, delays in delivery or any error in the filling of orders. Special or expedited delivery expenses will be charged to Buyer.
7. Design Components. It is the Buyer’s responsibility to approve colors and decoration at the EES’s premises prior to commencement of a new production run, failing which the Buyer shall have no claim against the EES for color variation or any other decoration defects whatsoever.
8. Taxes. Any tax imposed by Federal, State or other governmental authority on the sale of merchandise and service referred to in any order acknowledgment or invoice shall be paid by the Buyer in addition to the purchase price. EES will collect taxes from buyer as a convienience to customer and as requirement by a federal, state or local government, but buyer is fully responsible for any taxes owed as a result of any sale that are not collected by EES, and EES makes no clames as to what tax is or is not owed by buyer by EES knowingly or unknowingly ommiting any tax owed from a sales estimate, sales order, receipt or invoice.
9. Standard Warranty and Limitations of Remedies and Liability covering all EES's goods. Everlast Epoxy Systems, Inc., as a manufacturer of goods, stands behind its products by warranting that, subject to the limitations below or a product-specific written warranty provideded by EES, for a period of 1 year from shipment, its products are in conformity with its published specifications, subject to standard tolerances for variations, except that color cannot be warranted as to uniformity of shade or conformity to samples. If EES determines a product does not meet this warranty, it will replace it, refund the purchase price or give a credit to the purchaser, at its sole option, as Buyer’s sole remedy. Technical recommendations on use of EES products can only be based on present experience and knowledge and reliability of data provided regarding a site. However, many factors beyond the control of EES can affect the products. Thus, customers must satisfy themselves of suitability of the product for site conditions. EES is not an installer and therefore does NOT warrant or guarantee: 1. The work of any person or company installing its goods; 2. Failure of the product due to improper design by the engineer or architect; 3. Failure of the product due to misuse, abuse, alteration, improper storage or handling, or not using or cleaning the product in the manner in which it was intended and in accordance with instructions provided by EES; 4. Bond failure of the product caused by deficiencies in the substrate including, but not limited to, the presence of ionic compounds or soluble salts, alkali silicate reaction, alkali aggregate reaction, shale-pop, and other expansive reactions of aggregates and reinforcements; EES’s sole liability, and Customer’s exclusive remedy, for breach of any warranty as expressly limited, at EES’s option, is to replace material at the original FOB point or refund of the purchase price. A written notice of claim for breach of warranty must be delivered to EES within sixty (60) days of observation and no more than one (1) year after delivery of the product. EES shall be allowed reasonable opportunity to investigate the claim and inspect the product. In no event may Customer recover damages exceeding the price paid by the Customer for the specific goods as to which the claim is made, whether based on contract, tort, or any other theory. EVERLAST EPOXY SYSTEMS MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. EVERLAST EPOXY SYSTEMS SHALL NOT BE LIABLE FOR, and CUSTOMER WAIVES ALL CLAIMS FOR, PROSPECTIVE PROFITS OR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER DAMAGES OR REMEDIES NOT SPECIFICALLY PROVIDED ABOVE, WHETHER BASED ON NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION OR ANY CLAIM ARISING AS A RESULT OF USE OR POSSESSION OF ANY GOODS SUPPLIED. ALL WARRANTIES ARE NULL AND VOID IF CUSTOMER HAS NOT PAID IN FULL IN ACCORDANCE WITH EVERLAST EPOXY SYSTEMS INC’S PAYMENT TERMS. Everlast Epoxy Systems, Inc. will not be liable for, and the Customer shall defend, indemnify and hold harmless (including without limitation costs and attorney’s fees) Everlast Epoxy Systems, Inc. from, any loss, damage or injury to persons or property, or claim thereof, resulting from (A) Customer’s or any third party’s or end user’s handling, storage, transportation, resale, application or other use of the goods, or in combination with other substances, or otherwise or (B) selection or recommendation by Everlast Epoxy Systems, Inc. of any applicator or other contractor. Any advice furnished by EES, as to any use of the goods by Buyer, is offered “as is” without warranty of any kind, is gratuitous and shall not affect the limitations on EES's warranties or Buyer's agreement to indemnify. Buyer acknowledges that this Agreement is for the purchase of goods, not services, and that EES shall therefore have no liability to Buyer for any harm or loss caused by advice received by Buyer from any of EES's agents or employees. If a claim is brought against EES by an agent or employee of Buyer, Buyer agrees to defend, indemnify and hold EES harmless from and against any and all liability, loss, damages, and expense relating to the claim.
11. Specifications. Buyer accepts EES’s standard product specifications. Buyer waives all claims relating to products sold by EES unless notice thereof is received in writing by the EES within 30 days after delivery of the products which are the subject of the claim(s). In no event shall EES be liable for any defective good if examination discloses that the good has been taxed beyond its normal capacity or the defective condition of such good was caused by misuse, abuse, improper installation or application, improper maintenance or repair, alteration, accident or negligence in use, storage, transportation or handling.
12. Safety. USE OF THE GOODS OR MERCHANDISE SUPPLIED BY EES IN OR WITH SUBSTANCES WHOSE CHEMICAL OR OTHER COMPOSITION OR CHARACTERISTICS ARE INCOMPATIBLE WITH SUCH GOODS OR MERCHANDISE IS A MISUSE BY BUYER OF SUCH GOODS OR MERCHANDISE. ALL RESPONSIBILITY TO TEST AND OTHERWISE ASSURE COMPATIBILITY IS ASSUMED BY THE BUYER, WHETHER OR NOT EES MAY PERFORM ANY TESTS FOR COMPATIBILITY (WHICH TESTING IS NOT A DUTY OF EES) AND REGARDLESS OF THE RESULTS OF ANY SUCH TEST, EES MAKES NO REPRESTATION OR WARRANTY, EXPRESS OR IMPLIED, THAT ANY TESTS BY EES ARE ADEQUATE OR SUFFICIENT FOR BUYERS PURPOSES, AND BUYER AGREES NOT TO HOLD EES RESPONSIBLE FOR SUCH ADEQUACY OR SUFFICIENCY. Upon request by Buyer, EES will provide applicable information (including but not limited to GHS Safety Data Sheets) concerning the safety and health aspects of its goods. Buyer agrees to communicate such information to Buyer’s employees, agents, contractors and customers, and to require such persons to further communicate such information to all persons that they may reasonably foresee will be exposed to or handle such goods.
13. Non-conforming Goods. If Buyer provides EES with notice within ten (10) days of learning of a possible warranty breach and reasonable opportunity to inspect: EES may, at its option, either repair or replace said nonconforming goods or repay the price thereof. If EES requests the return of the nonconforming goods, no obligation for breach of warranty shall arise unless the goods have been returned to EES within thirty (30) days after such request is made. Buyer’s failure to provide timely notice shall constitute a waiver of its claims. The aforesaid obligations of EES to repair or replace defective or nonconforming goods or repay the purchase price thereof is expressly agreed by the parties to be the limit of EES's liability and Buyer's sole and exclusive remedy for warranty.
14. Force Majeure. EES shall not be liable for any failure or delay in the performance of any obligation, due directly or indirectly to events beyond its reasonable control, including but not limited to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, terrorism, wars, riots and public disorders, epidemics, sabotage, strikes, lockouts, labor disputes, labor shortages, work slowdowns, stoppages or delays, shortages, embargoes or failure or delay of energy, materials, decoration, art work, printing plates, supplies or equipment, transportation embargoes or delays, Acts of nature, breakdowns in machinery or equipment, acts or regulations or priorities of federal, state, provincial, or local governments or branches or agencies thereof, and government contracts or shipments to fulfill government contracts.
15. Returns. Product returns will not be accepted for replacement or credit without prior written authorization from EES and a returned material authorization (RMA) number, in accordance with EES’s current return policy published at http://www.everlastepoxy.com/restocking A return authorization number must be requested from EES through the Regional Sales Manager. Merchandise returned is not to exceed the quantity authorized. A minimum 20% restocking fee will be applied. All returns must have freight prepaid. No cash on delivery for freight will be accepted. Credit will be issued only after merchandise is inspected by EES. Damaged, opened or partially used products will not receive credit. Materials returned beyond 90 days of original ship date will not receive credit. Custom colors, resins and aggregates are not eligible for return. Credit will not be issued for returns without an RMA number displayed on the pallet and bill of lading.
16. Intellectual Property. The elements of the Site, including, but not limited to, text, graphics, logos, depictions, designs, photographs, images, digital downloads, data compilations, sound, video, and software are protected by United States and international copyright, trademark, and trade dress laws and are the property of Everlast Epoxy Systems, Inc. or its affiliates. The compilation of the content on the Site is the exclusive property of Everlast Epoxy Systems, Inc.
17. Copyrights. The copyright in all materials provided on the Web Sites is owned by EES or its affiliate(s). Except as stated herein, none of the material contained in the Web Sites may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording or otherwise, without the prior written consent of EES. Permission is hereby granted to view, copy, print and download the materials on the Web Sites for personal, noncommercial use only, provided such materials are used solely for informational purposes, and all copies, or portions thereof, include this copyright notice. EES may revoke any of the foregoing rights at any time. You may not, without EES’ prior written consent, "mirror" any material contained on the Web Sites on any other server. Upon termination of any rights extended hereunder, you must immediately destroy any downloaded and printed materials obtained from any Web Site. Any unauthorized use of any material contained on the Web Sites may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.
Notification of Copyright Infringement
If you believe that a work you own and that is protected by copyright has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on the Web Sites or on sites linked to/from the Web Sites, please provide EES’ Copyright Agent (identified below) a written or electronic notice ("Notice") containing the following information:
your full legal name, as well as your address, telephone number, and email address;
a physical or electronic signature of the person authorized to act on behalf of the owner of the copyrighted work(s) that is/are alleged to have been infringed;
an identification of the copyrighted work(s) you claim is/are being infringed;
an identification of the material you claim is infringing and its location;
a statement by you that you have a good faith belief that the disputed use of the copyrighted work(s) is/are not authorized by you, the copyright owner, its agent, or the law; and
a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
If you find EES content that is illegaly reproduced and would be sogrecious as to report it to EES you may contact our copyright agent below.
Copyright agent: David J Linton
Everlast Epoxy Systems, Inc.
637 SW State Road 47
Lake City, FL 32025
Phone: (386) 719-9979
Fax: (386) 719-6982
THE COPYRIGHT AGENT SHOULD BE CONTACTED ONLY FOR THE PURPOSE OF NOTIFYING EES OF SOMEONE ILLEGALY REPRODUCING EES' CONTENT OR NOTIFYING THE COPYRIGHT AGENT THAT YOUR WORK HAS BEEN USED OR COPIED IN A WAY THAT CONSTITUTES COPYRIGHT INFRINGEMENT AND SUCH INFRINGEMENT IS OCCURRING ON THE WEB SITES OR ON SITES LINKED TO/FROM THE WEB SITES.
ANY REQUEST, INQUIRY OR COMMUNICATION THAT IS SENT TO THE COPYRIGHT AGENT FOR ANY OTHER PURPOSE WILL NOT BE RESPONDED TO.
18. Trademarks. The trademarks, service marks and logos ("Trademarks") used and displayed on the Web Sites are registered or unregistered Trademarks of Everlast Epoxy Systems, Inc. Nothing on the Web Sites shall be construed as granting, by implication, estoppel or otherwise any license or right to use any Trademark displayed on the Web Sites without the prior written consent of the Trademark owner. The name of Everlast Epoxy, our Logo and "Everlast" are trademarks of Everlast Epoxy Systems, Inc. These or any Trademark may not be used in any way including in any advertising or publicity pertaining to distribution of materials on the Web Sites without the prior written consent of EES. EES prohibits the use of any EES logo and Trademark as a "hot" link to any web site unless establishment of such link is approved in advance by EES in writing.