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.
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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 (the “Products”) or services (the “Services”) listed on the quote attached hereto 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 be amended from time to time by Company.
1. PRICING AND PAYMENT.
1.1. Pricing. The prices of the Products and Services 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. Service prices are based upon laws, codes and regulations in existence as of the quote date. Customer delays and design changes made necessary by newly enacted laws, codes and regulations put into effect after the quoted date may require reasonable adjustment in the schedule and additional compensation in accordance with Paragraph 2.3 of this agreement.
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. 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 account specified by Company. For products, Buyer shall pay to Company one hundred percent (100%) of such order at the time the order is submitted to Company. For services, unless specified otherwise in Company quote or accepted in writing by Company, Buyer shall pay to Company fifty percent (50%) of such order at the time the order is submitted to Company, followed by an additional forty percent (40%) due and payable at substantial completion of work and the balance due at acceptance of work. All payments not received when due shall be subject to an additional charge of two-tenths of one percent per week (10.4% APR) of the unpaid amount or the maximum rate permitted by law, whichever is less, until the date of payment. For late payments, Company also retains the right to stop work or terminate the contract at its option. Termination by Company under the provisions of this paragraph shall not relieve the Customer of the obligations of payments to Company for that part of the work performed prior to such termination. Company’s fulfillment of any order or mechanic’s lien is conditioned upon receipt of payment in full.
2. DELIVERY AND ACCEPTANCE.
2.1. Cancellation and Rescheduling. Prior to the scheduled date of product 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 order.
2.3. Service Change Orders and Schedules. A Change Order is a written order signed by Customer and Company authorizing a change in the Work or adjustment in the price, or a change to the Installation Schedule described in the Quote. All change orders need to be agreed upon in writing, including cost, additional time considerations, approximate dates when the work will begin and be completed, a legal description of the location where the work will be done and signed by both parties. A 15% fee shall be added to all change orders and overages in excess of initial allowances. Additional time needed to complete change orders shall be taken into consideration in the project completion date.
Customer may request Company to submit proposals for changes in the Work. Unless otherwise specifically agreed to in writing by both parties, if Company submits a proposal pursuant to such request but Customer chooses not to proceed, Customer shall issue a Change Order to reimburse Company for any and all costs incurred in preparing the proposal.
Claims for Concealed or Unknown Conditions. If conditions are encountered at the site that are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents, or (2) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then notice by the observing party shall be given to the other party promptly before conditions are disturbed and in no event later than twenty-one (21) days after first observance of the conditions, and, if appropriate, an equitable adjustment to the Contract Price and Installation Schedule shall be made by a Change Order. If agreement cannot be reached by the Parties, the party seeking an adjustment in the Price or Installation Schedule may assert a claim as follows.
If Company wishes to make a claim for an increase in the Price or an extension in the Work Schedule it shall give Customer written notice thereof within a reasonable time after the occurrence of the event giving rise to such claim. This notice shall be given by Company before proceeding to execute the Work, except in an emergency endangering life or property, in which case Company shall have the authority to act, in its discretion, to prevent threatened damage, injury or loss. Claims arising from delay shall be made within a reasonable time after the delay. Increases based upon design and estimating costs with respect to possible changes requested by Customer shall be made within a reasonable time after the decision is made not to proceed with the change. No such claim shall be valid unless so made. If Customer and Company cannot agree on the amount of the adjustment in the Price, or the Installation Schedule, it shall be determined pursuant to the provisions of Paragraph 15 – Dispute Resolution. Any change in the Price or the Installation Schedule resulting from such claim shall be authorized by Change Order.
Emergencies. In any emergency affecting the safety of persons or property, Company shall act, at its discretion, to prevent threatened damage, injury or loss. Any increase in the Price or extension of time claimed by Company on account of emergency work shall be determined as provided in the preceding paragraph.
3. WARRANTY; DISCLAIMER.
3.1. Warranty. Company warrants that all Products and Services provided by Company shall be provided with industry accepted quality standards, in a quality workmanlike manner and free from material defects for a minimum period of thirty (30) days from the date of initial installation. Manufacturer warranties will prevail and shall be passed along to Customer.
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/or 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) Product’s have been vandalized or (vi) a Product’s failure is due to handling, shipping or formulary instability. All warranties are null and void if full payment for Services, Products and associated shipping are not received in full and in a timely manner by Company.
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, employees, agents and affiliates 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 AND GOVERNING LAW. This agreement shall be governed by the laws of the State of California. 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, logo, photos, videos and testimonials 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. CONFIDENTIALITY. As used herein, the term “CONFIDENTIAL INFORMATION” shall mean any information in readable form or in machine-readable form, including software supplied to CUSTOMER by CONSULTANT, that has been identified or labeled as “Confidential” and/or “Proprietary” or with words of similar import. CONFIDENTIAL INFORMATION shall also mean any information that is disclosed orally and is designated as “Confidential” and/or “Proprietary” or with words of similar import at the time of disclosure and is reduced to writing, marked as “Confidential” and/or “Proprietary” or with words of similar import, and supplied to the receiving party within ten (10) days of disclosure.
All rights in and to CONFIDENTIAL INFORMATION and to any proprietary and/or novel features contained in CONFIDENTIAL INFORMATION disclosed are reserved by the disclosing party; and the party receiving such disclosure will not use the CONFIDENTIAL INFORMATION for any purpose except in the performance of this Agreement and will not disclose any of the CONFIDENTIAL INFORMATION to benefit itself or to damage the disclosing party. This prohibition includes any business information (strategic plans, etc.) that may become known to either party.
Each party shall, upon request of the other party or upon completion or earlier termination of this Agreement, return the other party’s CONFIDENTIAL INFORMATION and all copies thereof.
Notwithstanding the foregoing provisions, neither party shall be liable for any disclosure or use of information disclosed or communicated by the other party if the information:
(a) is publicly available at the time of disclosure or later becomes publicly available other than through breach of this Agreement; or
(b) is known to the receiving party at the time of disclosure; or
(c) is subsequently rightfully obtained from a third party on an unrestricted basis; or
(d) is approved for release in writing by an authorized representative of the disclosing party.
The obligation of this Article shall survive any expiration, cancellation or termination of this Agreement.
14. 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.
15. 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 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.
Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. Any such arbitration shall be conducted by an arbitrator experienced in Construction and Renovation and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity.
Any controversy or claim arising out of or related to the installation, monitoring, and/or maintenance of systems associated with security and/or the detection of, and/or reduction of risk of loss associated with fire shall be resolved in a court of competent jurisdiction.