TERMS AND CONDITIONS OF SALE
By purchasing the HydroTAC filter system (the “System”) and any replacement filters and media components thereof (“Filters,” and together with the System and any other products available for sale, the “Goods”) from UnTapped Technologies Incorporated, a Florida corporation, the customer agrees to all of the following terms and conditions:
These Terms and Conditions of Sale (the “Terms”) establish the rights, obligations, and remedies of UnTapped Technologies, and its affiliates (“Seller”), and the buyer (“Buyer”), form the entire agreement between Seller and Buyer, and apply to all sales transactions of Goods between Seller and Buyer unless otherwise specifically agreed to in writing by both parties. All prior oral or written agreements including, but not limited to, terms in Buyer’s purchase order which are different from or in addition to these Terms are not binding on Seller unless expressly accepted in writing by Seller’s duly authorized representative.
2. SHIPMENT:
All Goods purchased by Buyer are shipped FOB, Seller’s facility, and Buyer is responsible for all shipping charges unless otherwise indicated on Buyer’s invoice. The cost of any special packaging or handling of Goods required by Buyer will be at Buyer’s sole expense and subject to Seller’s approval. If Buyer causes or requests a delay of shipment or if any Goods are shipped erroneously as a result of inaccurate, incomplete, or misleading information supplied by Buyer or Buyer’s agents or employees, all storage, additional shipping costs and any other risk associated therewith will be borne by Buyer. Delivery carriers including, but not limited to, USPS, UPS, and FedEx, whether selected by Seller or Buyer, are responsible for the delivery of Goods to Buyer in an acceptable and timely manner and satisfactory condition. All Goods are shipped by default as NO SIGNATURE REQUIRED if “signature required” has not been requested by Buyer, in which case Seller shall not be responsible for re-shipping of lost or stolen Goods in transit and Buyer shall be responsible for filing a claim directly with carrier. If “signature required” is selected by Buyer on any shipment, which shall be at Buyer’s cost, Seller will file a claim and re-ship the Goods at no cost to Buyer once verification of the shipment status and coverage of loss is received by Seller from the carrier. Buyer is responsible for inspecting Goods for damage incurred during shipping to the packaging or Goods immediately upon delivery and should refuse the shipment and file a damage claim with the delivery carrier for any shipping damage. Under no circumstances shall Seller be responsible for damages to packaging or Goods during, or delay in, the shipment of Goods, and Seller will not honor return/refund requests for Goods resulting from any of the foregoing or other losses caused by third parties.
3. PRICE:
All prices are subject to change unless otherwise noted on Seller’s applicable quotation for Goods. Buyer will be invoiced at prices in effect at the time of shipment. All taxes, transportation costs, duties and other charges shall be invoiced to or shall be paid separately by Buyer and are in addition to quoted prices for Goods. The amount of any sales, excise or other taxes, if any, applicable to the Goods shall be added to the purchase price and shall be paid by Buyer unless Buyer provides Seller with a valid tax exemption certificate.
4. CANCELLATION:
Buyer may cancel an order at any time before shipment subject to payment of any applicable cancellation and re-stocking fees for Goods already processed for shipment in Seller’s warehouse. Buyer may not cancel or modify an order after shipment and Buyer may otherwise only return the product in accordance with and subject to the terms of Paragraph 7. If the original purchase is by credit card, a refund on timely cancelled orders or for returns under Paragraph 7 will be made to the same credit card and in addition to the foregoing fees, Buyer may be charged Seller’s credit card processing fees on such refund.
5. PAYMENT:
Buyer’s order will be approved immediately by Seller and payment will be processed upon approval and prior to shipment. All discounts extended by Seller for promotions or otherwise, if any, will be provided in writing by Seller and processed at the time of payment.
For commercial Buyers, dealer volume purchases shall be prepaid unless Seller agrees in writing to extend net 30-day or other acceptable terms based on a preapproved satisfactory credit reference check. The representations of a commercial Buyer in any credit application shall be incorporated by this reference into the Terms, the accuracy of which shall constitute an obligation of Buyer. In the event of any breach of such representations or a late payment under such terms of credit, Seller is entitled to treat such Buyer’s entire account(s) as immediately due and payable without notice or demand. All past due amounts will be subject to a service charge accruing at a rate of up to 1.5% per month. Buyer shall not be allowed to retain or holdback payment due to, and Buyer’s payment obligations shall not be contingent on, any event other than Seller’s performance to ship conforming Goods in accordance with the Terms. Buyer’s receipt of payment of funds from any third party shall in no way relieve or constitute a condition precedent to Buyer’s obligations to pay Seller. Buyer is not entitled to set-off any amounts due to Seller by Buyer in connection with any transaction governed by these Terms.
6. INSPECTION AND ACCEPTANCE:
Buyer shall examine all Goods immediately upon delivery and prior to installation. All claims for damage to packaging or Goods during shipping or for lost or stolen Goods or for any errors in shipping shall be resolved pursuant to Paragraph 2. Buyer will be deemed to have accepted the Goods and will have no right to reject the Goods or to revoke acceptance unless such Goods are rejected as non-conforming to Buyer’s order of purchase, and such rejection of Goods shall be in writing and delivered to Seller within two (2) business days of delivery. Buyer must make any claims for billing and invoicing errors requesting specific adjustments thereto by written notice to Seller within ten (10) business days from the invoice date, and any such claims not received in writing within such period will be waived by Buyer.
7. RETURNS:
Seller’s Systems are inspected and properly packaged before being shipped to customer. If, in the unlikely event it is necessary to return the System, the following terms and conditions apply and returns for refund or exchange, as the case may be, are only accepted when the following conditions are met. Returns, either for refund or exchange, are NOT allowed on any international orders, custom ordered Systems or other special order products or, for safety reasons, on any Filters.
Returns for refunds are accepted ONLY within 30 days of purchase on new, unused Systems in the original undamaged packaging and without any damaged or missing parts. Refunds will not be issued if the System has been used, installed, or modified in any way, or when returned by Buyer the System is broken, dirty, or was otherwise abused or mishandled after delivery.
Returns for exchange are accepted ONLY within 30 days of purchase for Systems which are defective or, as may otherwise be agreed to in writing by Seller, for upgrades or substitutions based on Buyer’s particularly needs. The System is intended for professional installation and professional initial setup by a licensed plumber experienced in installing similar products, and Seller reserves the right to not honor returns of the System for any System which was improperly installed or not installed by a qualified, licensed plumber within the jurisdiction of the location of installation. Returns for exchange of a System will not be honored if, when returned by Buyer, Seller determines in its reasonable discretion that the System has been modified in any way or such defects are due to the abuse or mishandling of the System after delivery.
All returns of Systems, whether for refunds or exchanges, are subject to Buyer’s payment of all shipping, handling and restocking fees and costs; and shipping costs shall include the return shipping costs of the System from Buyer, the shipping of the replacement System to Buyer upon exchange, and the initial shipping costs for the original System delivered to Buyer to the extent Seller paid for same. Refunds will not be issued if a System is returned by Buyer for any reason past the 30-day initial purchase period. No refunds shall be issued to third-parties.
9. COMPLIANCE WITH EXPORT CONTROL LAWS:
Buyer warrants that it is not subject to U.S., EU, or UN sanctions, including, but not limited to, being identified on the U.S. Specially Designated Nationals (SDN) List, or more than 50 percent owned by an SDN. Buyer further acknowledges that Goods are subject to U.S. export control laws and regulations and cannot be exported, reexported, or transferred except in compliance with such laws and regulations. Buyer expressly assumes any and all duties and liability associated with any export of the Goods purchased by Buyer, including but not limited to determining export licensing requirements, freight costs, taxes, obtaining all required authorizations, and submitting Electronic Export Information, if required. In such case, Seller shall not be named as the Exporter of Record with respect to the Goods.
10. WARRANTIES:
(A) Generally: Seller warrants only title to the Goods sold to Buyer. All other warranties are those extended, if any, by the product manufacturer of the Goods. Seller assigns to Buyer any and all manufacturer warranties and will reasonably assist Buyer, at no cost to Seller, to obtain any available repair, replacement, or other applicable remedy for a breach of warranty from the manufacturer made known to Seller during the warranty period. Buyer shall direct any warranty claim solely and exclusively to the product manufacturer and hereby waives any such warranty claims against Seller.
(B) Installation Warranty: Seller does not provide or warranty any installations of any kind on Goods sold. Installation of the System must be performed by a licensed and insured plumber in the jurisdiction in which the System is installed.
(D) Services: Seller does not provide any servicing of Goods under these Terms and if any act of Seller in consultation with Buyer or its installer may be characterized as services hereunder, Seller warrants only that all services provided by Seller shall be performed in a professional and workmanlike manner with qualified personnel.
(E) Warranty Exclusions: Any and all warranties shall be void if there has been misuse, mishandling, accident, modifications, unsuitable physical or operating environment, or improper maintenance, storage, or installation of the Goods. SELLER EXPRESSLY DISCLAIMS, AND BUYER EXPRESSLY AND VOLUNTARILY WAIVES, RELEASES, AND RENOUNCES, ALL OTHER WARRANTIES AND CLAIMS EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE SYSTEM, FILTERS, OR OTHER GOODS SOLD BY SELLER TO BUYER INCLUDING, WITHOUT LIMITATION, (A) ANY IMPLIED WARRANTY THAT SUCH GOODS ARE MERCHANTABLE; (B) ANY IMPLIED WARRANTY THAT SUCH GOODS ARE FIT FOR A PARTICULAR USE OR PURPOSE EVEN IF KNOWN BY SELLER; (C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY FOR LOSS OF OR DAMAGE TO THE GOODS, FOR LOSS OF USE, REVENUE, OR PROFIT WITH RESPECT TO THE GOODS, FOR ANY LIABILITY OF THE BUSINESS TO ANY THIRD PARTY, OR FOR ANY OTHER DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, STRICT OR ABSOLUTE LIABILITY IN TORT, AND PRODUCTS LIABILITY. SELLER MAKES NO REPRESENTATION, WARRANTY, OR PROMISE THAT THE GOODS OR SERVICES WILL CONFORM TO ANY APPLICABLE LAWS, ORDINANCES, REGULATIONS, CODES OR STANDARDS, INCLUDING BUT NOT LIMITED TO LOW LEAD OR LEAD FREE LAWS OR REGULATIONS, EXCEPT AS SPECIFIED AND AGREED TO IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF SELLER. ANY AND ALL WARRANTIES WILL BE VOID IF THE PRODUCT IS NOT INSTALLED BY A LICENSED AND INSURED PLUMBER IN THE JURISDICTION OF INSTALLATION.
11. INDEMNIFICATION:
Each party (“Indemnitor”) shall indemnify, defend and hold harmless the other party and its employees, officers, directors, and agents (each an “Indemnitee”) from any suit, cause of action, arbitration/mediation proceeding, judgment, or claim (“Claim”) for damages to property or bodily injury, loss of life, infringement, liability of any nature, costs, fines, penalties, and expenses, including reasonable attorney fees and any other cost of litigation (“Damages”) to the extent caused directly by the negligent act or omission or intentional misconduct of the Indemnitor. Indemnification shall not apply to Damages proximately caused by the negligence of Indemnitee.
13. LIMITATION OF LIABILITY:
IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY, LIQUIDATED, OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, REVENUES, CAPITAL, BUSINESS OPPORTUNITY OR DOWNTIME COSTS, ARISING OUT OF THE SALE OF GOODS AND/OR SERVICES TO BUYER. This limitation shall apply regardless if the claimed damages arise from breach of contract, breach of warranty, tort, strict liability, products liability, or any other legal theory. Under no circumstances shall Seller be liable for damages resulting from Goods which were improperly installed or not installed by a qualified, licensed plumber within the jurisdiction of the location of installation. Seller’s liability, if any, to Buyer shall be in all cases limited to the purchase price Buyer paid Seller for any Goods.
14. U.S. GOVERNMENT CONTRACTS:
If Buyer is procuring items as a contractor, or subcontractor at any tier, for the direct or indirect sale to any agency of the U.S. Government, and/or is funded in whole or in part by any agency of the U.S. Government, Buyer agrees all Goods provided by Seller meet the definition of a commercially available off-the-shelf (COTS) item or “commercial item” as those terms are defined in Federal Acquisition Regulation (“FAR”) 2.101, and other applicable laws relating to U.S. Government contracts. To the extent the Buy American Act, Buy America Act, Trade Agreements Act, or other domestic preference requirements are applicable, the country of origin of Goods is unknown unless otherwise specifically stated by Seller in writing. Additionally, any reference to or incorporation of Executive Order 14042 and/or the EO-implementing Federal clauses (FAR 52.223 -99 and/or DFARS 252.223-7999) is expressly rejected by Seller and shall not apply as Seller is a materials supplier and therefore exempt under the Executive Order. The version of any applicable FAR or DFARS clause listed in this Clause 14 shall be the one in effect on the date of sale.
15. SEVERABILITY:
These Terms will be construed as if prepared jointly by the parties hereto and any uncertainty or ambiguity will not be interpreted against any one party. If any provision contained in these Terms is held to be unenforceable then such provision will be given effect in such reduced form as may be decided by a court of competent jurisdiction, provided that, if any provision should be declared unenforceable or invalid for any reason, such unenforceable or invalid provision will be severed from the remainder of these Terms without affecting the enforceability or validity of the remaining provisions.
16. NON-WAIVER:
The failure of Seller to insist upon the strict performance of any of these Terms will not be deemed to be a waiver of any of the rights or remedies of Seller, nor of its right to insist upon strict performance of such term or of any other term in the future. No waiver of any of these Terms will be valid unless in writing signed by a duly authorized representative of Seller.
17. DISPUTE RESOLUTION:
The parties shall attempt in good faith to resolve promptly any dispute arising out of or relating to these Terms through good faith negotiations between them or their legal counsel. If a dispute cannot be resolved by negotiation, then either party may bring a legal action in accordance with Paragraph 18 of these Terms.
18. GOVERNING LAW:
For Goods and/or services delivered within the United States, all disputes related to or arising out of a Buyer’s order shall be governed by the laws of the state of Florida. For Goods and/or services delivered outside of the United States, all disputes related to or arising out of Buyer’s order shall be governed by the laws of the State of Florida. The United Nations Convention on Contracts for the International Sale of Goods, and any successor thereto, shall not apply. Venue for any legal proceeding brought by one party against the other in connection with any transaction between them involving the sale and purchase of Goods shall lie solely and exclusively in Palm Beach County, Florida. The prevailing party in any legal proceeding shall be entitled to recover from the non-prevailing party, its attorney’s fees including those incurred in any appeals, post-judgment proceedings, and litigating entitlement to and the amount of such fees and costs to be awarded under this Paragraph.
