Standard Terms and Conditions of Sale
1. General
This Agreement, which encompasses the terms and conditions
outlined herein along with any additional or differing terms specified in ELEVEN57, LLC’s
Proposal (if applicable), constitutes the entire understanding between the parties concerning
the order. The Proposal, if provided, will prevail in the event of any conflicting terms. All
prior communications and agreements related to the order are superseded by this Agreement.
Acceptance of the order by ELEVEN57, LLC (“E57”), or Purchaser’s acceptance of E57’s Proposal,
is strictly contingent upon Purchaser’s acceptance of these terms. Payment or acceptance of any
performance by E57 signifies such acceptance. Any attempts by Purchaser to modify these terms
and conditions with additional or different terms are hereby rejected by E57. For the purposes
of this Agreement, “Equipment” refers to all equipment, parts, and accessories sold, and any
software and related documentation licensed to Purchaser by E57 under the order. “Services”
includes all labor, supervision, technical support, engineering, installation, repair,
consulting, and other services provided by E57 under the order. The term “Purchaser” extends to
include the initial end-user of the Equipment and/or Services.
2. Prices
The quoted price excludes any local, state, federal,
excise, sales or similar taxes that may apply now or in the future. The Purchaser agrees to
cover or reimburse any such taxes that E57 or its suppliers are obligated to pay or collect. If
the Purchaser is tax-exempt or holds a direct payment permit, a valid certificate or permit must
be provided to E57 at the time of order placement, acceptable to the relevant authorities. The
price includes customs duties and any import/export fees at the rates effective on the Proposal
date. Any changes in these duties, fees, or rates afterward will increase the price by E57’s
additional costs. Unless specified otherwise in writing, all Proposals remain valid for thirty
(30) days from their issuance.
3. Payment
Unless otherwise specified in writing by E57, payments are
due in U.S. Dollars, net cash, within 30 days of the invoice date, via wire transfer to the
account specified in the Proposal. If E57 determines that Purchaser’s financial condition before
delivery does not support the agreed payment terms, E57 may require advance payment,
satisfactory payment security, or cancel the order, with entitlement to reasonable cancellation
fees. If Purchaser delays delivery, payment remains due when E57 is ready to deliver. Delays or
issues with any part of the delivery do not exempt Purchaser from paying for the remaining
items. Overdue payments will incur a late fee of 5% per month or the maximum legal rate, plus
E57’s legal fees and court costs for collection.
4. Change Orders
Any modifications requested by the Purchaser that alter
the scope of work must be accepted by E57, and any related adjustments to the price, timeline,
or warranties must be mutually agreed upon in writing before the modifications are carried out.
E57 retains the right, at its own expense, to make alterations to the Equipment or Services as
necessary to meet the specified requirements. However, if the Purchaser opposes these
alterations, E57 will be released from its obligation to fully adhere to the affected
specifications.
5. Inspection, Testing and Acceptance Planning.
Purchaser must schedule any inspection of Equipment at
E57’s premises in advance, with inspections conducted during normal working hours. If the order
includes factory acceptance testing, E57 will notify Purchaser when testing is scheduled before
shipment, and unless Purchaser raises specific objections in writing within ten (10) days after
testing, completion of the test will be considered as Purchaser’s acceptance and approval for
shipment. For orders with site acceptance testing, E57 personnel will verify that the Equipment
has arrived on-site complete, undamaged, and in good working condition. Completion of site
testing constitutes full and final acceptance. If, through no fault of E57, acceptance testing
is not completed within thirty (30) days after the Equipment’s arrival, the test will be deemed
complete, and the Equipment will be considered accepted.
6. Weights and Dimensions
Published or advertised weights and dimensions are
provided as general estimates and are not warranted unless it is with order specific drawings.
7. Cancellation.
The Purchaser may cancel any order only with prior written
notice and payment of termination charges, including all costs incurred up to the termination
notice date and any expenses E57 incurs as a result. A fixed fee of 15% of the total order price
will also apply to cover disruptions in scheduling, planned production, and other indirect
costs. However, the cancellation fee terms specified in the order acknowledgment may be
substituted for these charges.
8. Delivery.
Equipment manufactured, assembled, or stored in the
continental United States is delivered F.O.B. point of shipment, while Equipment from outside
the U.S. is delivered F.O.B. U.S. port of entry. The Purchaser is responsible for any demurrage
or detention charges. If delivery is delayed by the Purchaser or due to Force Majeure, E57 may
store the Equipment at the Purchaser’s risk and expense, at which point it will be considered
delivered. Shipping and delivery dates depend on the Purchaser providing timely approvals and
necessary documentation. Claims for shortages or delivery errors must be made in writing to E57
within ten days of delivery. Equipment returns require prior written consent from E57 and must
adhere to specified terms. Any claims for damage after delivery should be directed by the
Purchaser to the carrier.
9. Returns
All equipment returns must adhere to the instructions
provided by the E57. Returns not covered by warranty, involving unused and resalable products,
will be processed in accordance with the E57’s return policies active at that time, which may
include restocking fees and other return conditions. Products being returned under warranty need
to be adequately packaged and sent to the location specified by the Seller. The shipping
containers should be clearly labeled as per the E57’s instructions and the shipping costs must
be prepaid by the purchaser.
10. Export Control.
The Purchaser guarantees that the Equipment and
Services provided will be used solely for civil purposes and not for any chemical,
biological, or nuclear weapons. The Purchaser also agrees not to disclose, use, export, or
re-export any information or products from E57, except as allowed by U.S. Export Control
Regulations. The Purchaser must also provide a Letter of Assurance and an End-User Statement
if requested by E57.
11. Resale of Equipment.
If the Purchaser resells any of the Equipment, the sale
terms must ensure that E57’s liability to the purchaser is limited to the same extent as E57’s
liability to the Purchaser under this Agreement.
12. Force Majeure
E57 will not be liable for any loss, damage, delay, or
failure to perform due to causes beyond its control. These include acts of war, natural
disasters, fires, strikes, labor disputes, government actions, compliance with regulations,
riots, embargoes, transportation delays, or shortages in labor, materials, or facilities. If a
delay occurs, the delivery date will be extended by the length of the delay plus time to resume
production, with a price adjustment to account for the delay.
13. Warranty and Recourse
E57 guarantees that the Equipment will be free from
defects in material and workmanship at the time of delivery and that Services will be performed
without defects in workmanship. The Warranty Recourse Period for Equipment, excluding Software,
Spare Parts, and Refurbished or Repaired Parts, is 12 months after installation or 18 months
from the date of shipment, whichever occurs first. For new spare parts, the period is 12 months
from the date of shipment, and for refurbished or repaired parts, it is 90 days from the date of
shipment. For Services, the period is 90 days after completion unless otherwise agreed in
writing. If a defect covered by the warranty is discovered during the applicable Warranty
Recourse Period, and the Equipment has been properly stored, installed, operated, and
maintained, E57 will act if promptly notified in writing. E57 will either repair or replace the
defective Equipment, re-perform the Services, or refund the applicable portion of the price. If
the repaired, replaced, or re-performed Equipment or Services still do not conform, and E57 is
promptly notified within the original Warranty Recourse Period or within 30 days of the repair
or replacement, whichever is later, E57 will address the issue. The original Warranty Recourse
Period will not be extended.
E57 is not responsible for providing access to
nonconforming Equipment, including disassembly and reassembly of equipment not supplied by E57,
nor for arranging transportation to or from any repair facility; these tasks are solely the
Purchaser’s responsibility and expense. E57 has no obligation for Equipment that has been
improperly repaired or altered, subjected to misuse, negligence, or accidents, used in a manner
contrary to E57’s instructions, made from materials provided by or designed according to the
Purchaser’s specifications, or that has failed due to normal wear and tear. Equipment supplied
by E57 but manufactured by third parties is only covered by the original manufacturer’s
warranty, with recourse limited to what the manufacturer provides. These warranties are the only
warranties provided by E57 and replace all other warranties related to quality and performance,
whether written, oral, or implied. Any other warranties, including implied warranties of
suitability or fitness for a particular purpose, are expressly disclaimed. The recourse outlined
here is the Purchaser’s sole remedy and represents E57’s full liability for any warranty breach.
14. Disclaimers, Limitation of Liability
E57, along with its suppliers and subcontractors, is not
liable for any special, indirect, incidental, or consequential damages. This includes, but is
not limited to, loss of profits or revenue, loss of use of the equipment or related equipment,
costs associated with capital, substitute equipment, facilities or services, downtime, delays,
or third-party claims. E57’s total liability for any claim arising from this Agreement, whether
due to contract, warranty, tort, negligence, or strict liability, will not exceed half of the
purchase price of the equipment or services involved. Any claims must be brought within one year
of their occurrence. Additionally, E57 will not be liable for any penalties, penalty clauses, or
indemnification related to the equipment or services provided.
15. Intellectual Property and Data
All inventions, developments, or modifications related to
the Equipment and Services belong to E57, unless otherwise agreed in writing. Any designs or
information provided to the Purchaser are E57’s exclusive property and may only be used for
operating or maintaining the Equipment. The Purchaser cannot copy or share this information
without E57’s written consent.
16. Patent Protection
E57 will defend any legal action brought against Purchaser
alleging that the Equipment, or its specified use in any process, infringes a U.S. patent. E57
will cover all damages and costs awarded, if Purchaser promptly notifies E57, provides necessary
assistance, and allows E57 to control the defense, including settlements. However, E57 is not
responsible for claims related to equipment or processes modified or combined with non-E57
items, designs required by Purchaser, products manufactured by the Equipment, patents issued
after this Agreement, or actions settled without E57’s consent. If the Equipment is found to
infringe or its use is prohibited, E57 will either secure the right for Purchaser to continue
using it, modify or replace it, or refund the relevant portion of the price. This provision
represents E57’s entire liability for patent infringement. If Purchaser modifies, combines, or
uses the Equipment in unauthorized ways, leading to a legal action against E57, Purchaser must
defend and indemnify E57 as E57 would indemnify Purchaser under this provision.
17. Nuclear Insurance – Indemnity.
The Purchaser or end user must have full insurance
coverage for liability and property damage from a nuclear incident and shall indemnify E57, its
subcontractors, suppliers, and vendors against all related claims.
18. Ownership and Loss Liability
Ownership to the Equipment remains with E57 until it is
fully paid for, except for Software, where ownership does not transfer, and only usage rights
are licensed. Regardless of any delivery terms or who pays for transportation, the risk of loss
or damage passes to the Purchaser upon delivery.
19. Legal Compliance to Laws, Statues and
Regulations
E57 is not responsible for compliance with federal, state,
or local laws and regulations unless explicitly stated here. Compliance with laws related to the
operation or use of the Equipment or Software is solely the Purchaser’s responsibility. The
applicable laws are those in effect as of the Proposal date; E57 assumes no responsibility for
any subsequent changes. Any modifications requested by Purchaser due to such changes will be
treated as a change per Article 4. E57 is not liable for obtaining any required permits,
licenses, or approvals for the supply, erection, or operation of the Equipment. This Agreement
is governed by Georgia law, excluding the United Nations Convention on Contracts for the
International Sale of Goods and Georgia’s conflict-of-law rules. Any legal action against E57
under this Agreement must be brought in Georgia’s state courts or the U.S. District Court for
the Northern District of Georgia. If any provision is deemed invalid or unenforceable, it will
not affect the remaining provisions.
20. Privacy
Your use of efiftyseven.com is subject to E57’s Privacy
Policy. Please review our Privacy Policy, which also governs the Site and informs users of our
data collection practices.
21. Electronic Communications
Visiting efiftyseven.com or sending emails to E57
constitutes electronic communications. You consent to receive electronic communications and you
agree that all agreements, notices, disclosures and other communications that we provide to you
electronically, via email and on the Site, satisfy any legal requirement that such
communications be in writing.
22. Your Account
If you use this site, you are responsible for maintaining
the confidentiality of your account and password and for restricting access to your computer,
and you agree to accept responsibility for all activities that occur under your account or
password. You may not assign or otherwise transfer your account to any other person or entity.
You acknowledge that E57 is not responsible for third party access to your account that results
from theft or misappropriation of your account. E57 and its associates reserve the right to
refuse or cancel service, terminate accounts, or remove or edit content in our sole discretion.
23. Links to Third Party Sites and Services
efiftyseven.com may contain links to other websites
(“Linked Sites”). The Linked Sites are not under the control of E57 and E57 is not responsible
for the contents of any Linked Site, including without limitation any link contained in a Linked
Site, or any changes or updates to a Linked Site. E57 is providing these links to you only as a
convenience, and the inclusion of any link does not imply endorsement by E57 of the site or any
association with its operators. Certain services made available via efiftyseven.com are
delivered by third party sites and organizations. By using any product, service or functionality
originating from the efiftyseven.com domain, you hereby acknowledge and consent that E57 may
share such information and data with any third party with whom E57 has a contractual
relationship to provide the requested product, service or functionality on behalf of
efiftyseven.com users and customers.
24. Materials Provided or Posted to efiftyseven.com
E57 does not claim ownership of the materials you provide
to efiftyseven.com (including feedback and suggestions) or post, upload, input or submit to any
E57 Site or our associated services (collectively “Submissions”). However, by posting,
uploading, inputting, providing or submitting your Submission you are granting E57, our
affiliated companies and necessary sublicensees permission to use your Submission in connection
with the operation of their Internet businesses including, without limitation, the rights to:
copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and
reformat your Submission; and to publish your name in connection with your Submission.
No compensation will be paid with respect to the use of
your Submission, as provided herein. E57 is under no obligation to post or use any Submission
you may provide and may remove any Submission at any time in E57’s sole discretion.
By posting, uploading, inputting, providing or submitting
your Submission you warrant and represent that you own or otherwise control all of the rights to
your Submission as described in this section including, without limitation, all the rights
necessary for you to provide, post, upload, input or submit the Submissions.
25. Third Party Accounts
You will be able to connect your E57 account to third
party accounts. By connecting your E57 account to your third party account, you acknowledge and
agree that you are consenting to the continuous release of information about you to others (in
accordance with your privacy settings on those third party sites). If you do not want
information about you to be shared in this manner, do not use this feature.
26. International Users
The Service is controlled, operated and administered by
ELEVEN57, LLC from our offices within the USA. If you access the Service from a location outside
the USA, you are responsible for compliance with all local laws. You agree that you will not use
the ELEVEN57, LLC Content accessed through efiftyseven.com in any country or in any manner
prohibited by any applicable laws, restrictions or regulations.
27. Access Restriction
E57 reserves the right, in its sole discretion, to
terminate your access to the Site and the related services or any portion thereof at any time,
without notice. To the maximum extent permitted by law, this agreement is governed by the laws
of the State of Georgia and you hereby consent to the exclusive jurisdiction and venue of courts
in Georgia in all disputes arising out of or relating to the use of the Site. Use of the Site is
unauthorized in any jurisdiction that does not give effect to all provisions of these Terms,
including, without limitation, this section.
You agree that no joint venture, partnership, employment,
or agency relationship exists between you and E57 as a result of this agreement or use of the
Site. E57’s performance of this agreement is subject to existing laws and legal process, and
nothing contained in this agreement is in derogation of E57’s right to comply with governmental,
court and law enforcement requests or requirements relating to your use of the Site or
information provided to or gathered by E57 with respect to such use. If any part of this
agreement is determined to be invalid or unenforceable pursuant to applicable law including, but
not limited to, the warranty disclaimers and liability limitations set forth above, then the
invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision
that most closely matches the intent of the original provision and the remainder of the
agreement shall continue in effect.
Unless otherwise specified herein, this agreement
constitutes the entire agreement between the user and E57 with respect to the Site and it
supersedes all prior or contemporaneous communications and proposals, whether electronic, oral
or written, between the user and E57 with respect to the Site. A printed version of this
agreement and of any notice given in electronic form shall be admissible in judicial or
administrative proceedings based upon or relating to this agreement to the same extent and
subject to the same conditions as other business documents and records originally generated and
maintained in printed form. It is the express wish to the parties that this agreement and all
related documents be written in English.
28. Termination
The Purchaser’s termination for default will only be valid
if E57 does not start and actively work to fix the issue within 15 days of receiving the
Purchaser’s written notice of the default.
29. Arbitration
In the event the parties are not able to resolve any
dispute between them arising out of or concerning these Terms and Conditions, or any provisions
hereof, whether in contract, tort, or otherwise at law or in equity for damages or any other
relief, then such dispute shall be resolved only by final and binding arbitration pursuant to
the Federal Arbitration Act, conducted by a single neutral arbitrator and administered by the
American Arbitration Association, or a similar arbitration service selected by the parties, in a
location mutually agreed upon by the parties. The arbitrator’s award shall be final, and
judgment may be entered upon it in any court having jurisdiction. In the event that any legal or
equitable action, proceeding or arbitration arises out of or concerns these Terms and
Conditions, the prevailing party shall be entitled to recover its costs and reasonable
attorney’s fees. The parties agree to arbitrate all disputes and claims in regards to these
Terms and Conditions or any disputes arising as a result of these Terms and Conditions, whether
directly or indirectly, including Tort claims that are a result of these Terms and Conditions.
The parties agree that the Federal Arbitration Act governs the interpretation and enforcement of
this provision. The entire dispute, including the scope and enforceability of this arbitration
provision shall be determined by the Arbitrator. This arbitration provision shall survive the
termination of these Terms and Conditions.
30. Full Agreement
This Agreement fully outlines the terms between E57 and
the Purchaser. No other agreements, understandings, restrictions, warranties, or representations
apply unless explicitly agreed to in writing by E57.
31. Changes to Agreement
E57
reserves the right, in its sole discretion, to change the Terms under which efiftyseven.com is
offered. The most current version of the Terms will supersede all previous versions. E57
encourages you to periodically review the Terms to stay informed of our updates.