Terms and conditions
General Terms and Conditions of Delivery Easy Sanitary Solutions LLC. (“Terms”)
1. Agreement: shall mean the agreement between the Customer and ESS for the delivery of ESS products and/or services.
2. Customer: shall mean any natural person or business entity with whom ESS and its employees deal in the course of its business, including representative(s), agent(s), successor(s) and including visitors of the ESS website.
3. ESS: Easy Sanitary Solutions.
4. These general terms and conditions apply to all offers, quotations, agreements or other
services of or with ESS and are explicitly understood to include repair or maintenance
work. These Terms shall be applicable even if ESS uses third parties to deliver products and/or services.
5. No other terms and conditions shall be binding upon ESS unless accepted by it in writing. ESS expressly rejects any general terms and conditions used by Customer. Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void and do not bind ESS. ESS reserves the right to amend these Terms at any time. New or amended general terms and conditions shall be applicable upon thirty (30) days notice to Customer. In case of inconsistencies between the terms of an Agreement and those contained in these Terms, those in the Agreement shall control.
6. If any provision of these Terms or any Agreement between the parties, is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original meaning of the terms or agreement in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions shall remain in full force and effect.
Article 2. Offers, prices and agreements
1. All offers of ESS are non-binding and may be revoked at any time, unless ESS stated otherwise in writing. Any amendments made by ESS in writing shall entail a new offer, automatically revoking the previous offer. Any amendments by Customer of an ESS offer will be deemed a new offer by Customer, which ESS may accept or reject in its sole discretion. Offers will only be deemed accepted by ESS if it does so in writing. A composite quotation can only be accepted in its totality and does not oblige ESS to sell and deliver part of the products or services mentioned in the offer or quotation at the specified (partial) prices, unless the full offers or quotation has been accepted.
2. All information, data or undertakings provided verbally or in documentation, price lists or other material related to ESS products and/or services, whether in electronic or any other form, are binding only to the extent that they are by reference expressly included and confirmed in writing in an agreement with ESS.
3. Customer understands and accepts that all samples, drawings, models, figures, dimensions, weights or any other specifications for ESS products and/or services are estimates only, although ESS will use best efforts to ensure their accuracy.
4. Configurations and prices of products and/or services are subject to change at any time, and ESS shall at all times be entitled to modify price lists, brochures, printed matter, quotations and other documents. Customer agrees to any such changes of prices or configurations if it does not object in writing to ESS within seven (7) business days of when Customer receives an invoice incorporating said changes.
5. All prices are exclusive of, and Customer shall pay, all taxes, duties, levies or fees, or other similar charges imposed on ESS or Customer by any taxing authority (other than taxes imposed on ESS’s income), related to Customer’s order, unless Customer has provided ESS with an appropriate resale or exemption certificate for the delivery location, which is the location where products are used or services are performed. In case of changes in law such that a tax is levied that is or becomes irrecoverable with a consequent increase to the costs to ESS of delivering the products and/or services, whereby and to such an extent ESS is entitled to increase its prices accordingly and retro-actively. Addtionally, all prices are exclusive of costs of loading and unloading and transport, packaging costs, assembly and installation costs, unless expressly stated or agreed upon otherwise in writing.
6. The prices or fees quoted are in U.S. dollars, or in another currency if stated by ESS in writing. Customer shall bear any exchange rate risk, unless otherwise agreement in writing.
7. All agreements for the delivery of products and/or services to Customer shall be treated as separate agreements.
Article 3: Payment
1. Customer agrees to pay, without the right to set-off any amount, all invoiced amounts within thirty (30) days of the invoice date, unless stated otherwise in the Agreement or on the invoice. However, all amounts will be due immediately, in case Customer terminates or suspends all or a substantial portion of its business activities, becomes insolvent, admits its inability to pay its debts, or in case of the voluntary or involuntary filing of a petition for or adjudication of bankruptcy of Customer under any federal, state or municipal bankruptcy or insolvency act, the appointment of a receiver, trustee, custodian, or liquidator, or any act or action constituting a general assignment by Customer of its properties and/or interest for the benefit of creditors.
2. Where payment is not made within the terms set forth in this article, contractual interest shall be owed at a rate of 1.5% a month, or the highest rate allowed by law, if lower, with effect from the first day following expiration of the payment term referred to in this article; part of a month shall be considered a full month.
3. Payments made by Customer shall always be used first to meet all the interest and costs owed and subsequently for the settlement of claims under the Agreement which have remained outstanding for the longest period of time, even when Customer specifies that the payment relates to another claim.
4. Customer shall not be entitled to refuse to discharge or to suspend the discharge of its payment obligations on account of alleged disturbance of, defect or error in the products and/or services or on any other account whatsoever.
5. If ESS believes that Customer’s financial position and/or payment performance justifies such action, ESS has the right to demand that Customer immediately furnish security in a form to be determined by ESS and/or make an advance payment. If Customer fails to furnish the desired security, ESS has the right without prejudice to its other rights, to immediately suspend the further execution of the Agreement, and that which Customer owes to ESS for whatever reason will become immediately due and payable.
6. Customer shall be liable for amounts which ESS incurs to collect payment, including without limitation, collection agency fees, reasonable attorneys’ fees and arbitration or court costs.
Article 4: Delivery
11. ESS shall deliver the products and/or services in accordance with the Agreement. Delivery and/or development times and dates are merely estimates, as well as lead times or any other deadlines, and ESS cannot be held liable for any damages as a result of delay in delivery of the products and /or services. Unless otherwise agreed in writing, failure to meet delivery times or delivery dates stated shall never be considered fatal, and if the time for delivery is exceeded, Customer shall not be entitled to cancel or terminate the Agreement, or to claim any damages.
2. Customer must accept delivery of products during normal business hours, failing which all costs arising thereof (including storage charges and freight charges) shall be charged in conformity with ESS’s rates or local rates.
3. Delivery shall be ex-works at the location set forth in the Agreement or on the invoice, in accordance with the most recent Incoterms, unless expressly agreed otherwise in writing.
4. In the event that delivery does not take place in accordance with the third section of this Article 3, the products will be delivered/sent to the agreed place or places in the manner as determined in the quotation or order confirmation or as subsequently agreed in writing between the parties. The parties then agree in writing for whose account and at whose risk the transport takes place.
5. In the event that delivery-on-demand has been agreed upon without any time limits for the call and if within three months after the effective date of the Agreement not all products have been called for, ESS may give written notice to Customer thereof, and demand that Customer sets a term of no more than three months, within which all remaining products must have been ordered for. If Customer fails to order the remaining products within the said time frame, ESS will be authorized to terminate the Agreement and related orders, and to claim damages resulting from Customer’s default.
6. ESS is entitled to deliver orders in parts (partial deliveries) and to invoice these separately to
Article 5: Quantity
1. A shipment note, delivery note or similar document issued with the delivery of products
shall be deemed to accurately reflect the quantity of the delivered goods. Claims in connection to shortages or errors in shipping must be reported in writing to ESS within three (3) business days of receipt of such shipment. If Customer fails to report timely, ESS will have no obligation to correct such shipments, unless Customer bears all the expenses thereof.
2. Even if Customer notifies ESS timely that it has delivered less than stated on the document referred to in the first paragraph of this Article, this does not entitle Customer to suspend any payments.
Article 6: Quality, description, responsibilities and order confirmation
1. ESS will use best efforts to deliver the ordered products or services in accordance with the description, quality and quantity as stated in the order confirmation sent by ESS to the Customer.
2. Samples or models shown to the Customer are provided by way of indication only, without the
products to be delivered by the ESS having to comply with them. Minor deviations in the quality, colour, design, weight, size and the like of the products delivered by ESS do not provide any grounds for Customer to cancel or terminate the Agreement or the order (whether or not partially), nor does this give a right to a discount of the purchase price.
3. ESS accepts no responsibility or liability for designs, sketches, diagrams and the like
made by or on behalf of the Customer, nor for materials or parts that are explicitly expected by or
on behalf of the Customer.
4. Services and advice provided by ESS will never replace the instructions and assembly guide enclosed with the delivered products, unless specifically stated in writing by ESS.
Article 7: Claims
1. The Customer is obliged to inspect all delivered or supplied products, including packaging,
immediately upon delivery or supply for shortcomings, damage and other defects.
2. Visible defects must be reported by the Customer within three (3) business days of the receipt of the products, by providing detailed notice to ESS, which must include the shipment note/delivery note. In case of incorrect notification, ESS may reject any claims in connection thereto.
3. Non-visual defects in the delivered products that cannot be identified immediately upon receipt, must be identified as soon as possible but no later than eight (8) business days after the defects have
been identified or reasonably should have been identified.
4. Minor product deviations / variations are considered acceptable in the trade, are not defects, and do not constitute grounds for rejection of deliveries, claims for damages, or termination of orders or the Agreement.
5. In the case of any alleged shortage, errors, defects or non-conformance with the Agreement, Customer shall allow ESS to inspect the products subject to the alleged defect.
6. Notwithstanding the above, ESS will have no obligation to replace or repair any products if the products have been handled, processed or stored improperly by the Customer, or if the products have already been processed and or if the Customer has not fully met its obligations under these Terms or the Agreement.
7. THE SOLE AND EXCLUSIVE REMEDY FOR ALLEGEDLY DEFECTIVE PRODUCTS IS THE REPLACEMENT OR REPAIR OF SUCH PRODUCTS OR PARTS OF SUCH PRODUCTS, AT NO COSTS FOR CUSTOMER.
8. In the event that a claim is accepted by ESS, ESS shall be obliged to supply replacement products or comparable (new) services, to credit the invoice for future order, or to provide a refund of the purchase price, all at ESS’s sole discretion. Return shipments are not permitted without the prior written consent of ESS.
9. The Customer must provide its customers the work instructions that are included with all of
ESS’s products. Customer agrees and understands that its customer must follow these work instructions to ensure that any claims are covered by the ESS product warranty..
10. Timely (and correctly made) claims submitted to ESS do not give Customer the right to suspend or adjust the payment of the purchase price/services fee, nor the right to terminate the Agreement in whole or in part.
Article 8: Liability, Limitation of Damages and Indemnification
1. IN NO EVENT SHALL ESS, ITS AFFILIATES OR ITS LICENSORS BE LIABLE, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, BUSINESS, SALES, PROFITS (WHETHER ACTUAL OR ANTICIPATED), LOSS OF OR CORRUPTION TO DATA, OR INTERRUPTION OF BUSINESS.
2. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS OR IN THE AGREEMENT TO THE CONTRARY, ESS’S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND SHALL NOT EXCEED THE TOTAL PAID BY CUSTOMER FOR THE PRODUCTS AND/OR SERVICES IN CONNECTION TO WHICH THE DAMAGING EVENT OCCURRED.
3.THE LIMITATIONS ON ESS’S LIABILITY ABOVE SHALL APPLY WHETHER OR NOT ESS, ITS EMPLOYEES, LICENSORS OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING.
4. CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD ESS, ITS PRESENT AND FUTURE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LOSSES, DAMAGES, PENALTIES, LIABILITY AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES, IN CONNECTION WITH OR ARISING OUT OF ANY USE OF THE ESS PRODUCTS AND/OR SERVICES OR BREACH OF THIS AGREEMENT, BY CUSTOMER.
5. CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD ESS, ITS PRESENT AND FUTURE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS AND THREATENED CLAIMS BY ANY THIRD PARTY, INCLUDING EMPLOYEES OF CUSTOMER ARISING OUT OF, UNDER OR IN CONNECTION WITH (1) THE DEATH OR BODILY INJURY OF ANY THIRD PARTY, INCLUDING ANY AGENT, EMPLOYEE, CUSTOMER, BUSINESS INVITEE OR BUSINESS VISITOR OF CUSTOMER, OR, (2) THE DAMAGE, LOSS OR DESTRIBUTION OF ANY TANGIBLE PERSONAL OR REAL PROPERTY AT CUSTOMER’S PREMISES, BOTH ONLY TO THE EXTENT THAT SUCH WAS NOT A RESULT OF GROSS NEGLIGENCE BY ESS OR ITS PERSONNEL.
Article 9: Packaging
1. Reusable packing materials (packaging, pallets, etc.) used by ESS for the supply and/or
delivery of ESS products will be specified and charged separately on the ESS product invoice.
2. Upon prior written approval of ESS, original and undamaged packaging may be returned to ESS. If the returned packaging is accepted by ESS, ESS will issue a credit invoice toward future purchases of ESS products by Customer.
Article 10: Returns
1. Customer may return a product upon prior written approval of ESS, which only will be granted if: (i) it is in new condition, suitable for resale in its undamaged original packaging and with all its original parts and (ii) it has not been used, installed, modified, rebuilt, reconditioned, repaired, altered or damaged. All returns shall be subject to the following deductions: (i) cost of putting items in saleable condition; (ii) transportation charges, if not prepaid; and (iii) handling and restocking charges up to twenty five percent (25%) of the original invoice value. Custom made products may not be cancelled or returned, and no refund will be made.
2. The acceptance of returns does not imply an admission by ESS of liability, breach or shortcoming in any performance by ESS.
Article 11: Force majeure
ESS will not be liable for any delay in performing or failure to perform any of its obligations under these Terms or the Agreement caused by events beyond its reasonable control. ESS will notify Customer promptly in writing of the reasons for the delay or stoppage (and the likely duration) and will take all reasonable steps to overcome the delay or stoppage.
Article 12: Assignment
Customer is not permitted to assign, delegate or otherwise transfer the Agreement or any rights hereunder. Any such attempted assignment, delegation or transfer will be null and void. ESS is permitted at its sole discretion to assign the Agreement or any rights or obligations hereunder to any third party, without giving prior notice.
Article 13: Entire Agreement.
The Agreement and these Terms contain the entire agreement between ESS and Customer regarding Customer’s purchase of the ESS products and/or services, and supersedes and replaces any previous communications, representations or agreements, or Customer’s additional or inconsistent terms, whether oral or written.
Article 14: No Waiver
The failure to exercise, or delay in exercising, a right, power or remedy provided by the Agreement or these Terms or by law shall not constitute a waiver of that right, power or remedy. If ESS waives a breach of any provision of these Terms or the Agreement, this shall not operate as a waiver of a subsequent breach or that provision or as a waiver of a breach of any other provision.
Article 15: No Beneficiaries
Any agreement between the parties is for the sole benefit of the parties thereto and, except as otherwise contemplated therein, nothing therein expressed or implied shall give or be construed to give any person, other than the parties thereto, any legal or equitable rights thereunder.
Article 16: No Partnership
Nothing contained in any agreement between the parties shall be read or construed so as to constitute the relationship of principal and agent or of partnership between the parties. Neither of the parties may pledge or purport to pledge the credit of the other party or make or purport to make any representations, warranties, or undertakings for the other party.
Article 17: Jurisdiction, applicable law and competent court.
Unless stated otherwise in writing, all agreements shall be governed by and construed in accordance with the laws of the state of New York, without giving effect to the United Nations Convention on the Contracts for the International Sale of Goods. All disputes and controversies arising out of or relating to these Terms or the relationship of the parties shall be finally and bindingly resolved under the International Arbitration Rules of the American Arbitration Association in front of a sole arbitrator. The place of arbitration shall be New York, New York. The language of the arbitration shall be English. Any award, verdict or settlement issued under such arbitration may be entered by any party for order of enforcement by any court of competent jurisdiction. ANY CAUSE OF ACTION AGAINST ESS, REGARDLESS WHETHER IN CONTRACT, TORT OR OTHERWISE, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
228 East 45th Street Suite 9E
New York, NY, 10017
T: +1 (347) 293 0887
F: +1 (929) 489 8977