CONDITIONS OF SALE
APPLICABLE TO ALL PURCHASE OF GOODS AND SERVICES FROM DYNAFIRE, INC.
Application of Conditions; Parties
These Conditions of Sale (“Conditions”) apply to each sale by DynaFire, Inc. (“DynaFire”), including but not limited to the sale of goods, services, designs, labor and materials. The Conditions apply to all purchases from DynaFire. All references to “Client” shall include all parents(s), subsidiaries and affiliates of the entity purchasing goods or services from DynaFire in a sale. DynaFire and Client may be referred to individually as a “Party” and collectively as “Parties”. This document constitutes a sales agreement respecting goods which Client buys from DynaFire. The Conditions and the contract into which they are incorporated are collectively referred to from time to time herein as the “Agreement”.
Authorized Acceptance of Terms; Effect of Electronic Signatures
Each Client is conclusively deemed to have accepted these Conditions and represents that it or an authorized representative or agent thereof has read them in full and binds the Client thereto. No sale transaction or agreement shall be denied legal effect solely because any portion thereof, including any signature, is in electronic form.
With respect to the sale of goods, Client shall inspect the goods upon receipt, and within two (2) business days after delivery, Client must give notice to DynaFire of any claim or rejection on account of condition, quality, or grade of the goods, and Client must specify the basis of the claim in detail. Client agrees that notice, to be reasonable, must be within (2) business days of delivery. Failure of Client to comply with these conditions will constitute irrevocable acceptance of the goods by Client. The fact that a party may accept or acquiesce in any course of performance under this Sales Agreement does not affect the meaning of this Agreement, even though the party accepting or acquiescing knows of the nature of the performance and has reasonable opportunity to object to it.
Client shall pay all charges upon receipt of an invoice from DynaFire unless otherwise indicated in writing, payable in United States of America (“U.S.”) dollars. Any payment not received within 30 days of the invoice date shall bear simple interest at the rate of 1.5% per Month, or the maximum rate allowable by law, whichever is less. If Client is in arrears on any invoice, DynaFire may withhold further delivery of goods and services until all arrearages are brought current. Failure to make timely payment of amounts due hereunder shall relieve DynaFire of any obligation to extend credit. Credit shall be limited to such amount as DynaFire shall, in its sole discretion, determine, including no credit. Credit limits may be increased or decreased at any time at DynaFire’s discretion. Client agrees DynaFire’s acceptance from time to time of less than full invoice amount shall not be construed as a waiver of DynaFire’s right to collect the remainder due.
It shall be the responsibility of the Client to authorize and request repairs when needed and to maintain the system per current local and national fire code requirements.
The Client has an active duty to provide to DynaFire all available information pertinent to the Services. Client shall provide to DynaFire all approvals, permits, and consents from any government authority and others as may be required for the performance and installation of the Services and Equipment, except for those DynaFire has expressly agreed in writing to obtain. Client alone shall act to protect life and property from the time a partial or full system failure occurs until notified by DynaFire that the system is operational or the emergency has been cleared. Client will take actions that include all appropriate interim safety precautions (such as manual fire watch). DynaFire has no obligation to provide guards, fire watch personnel, or other services following a system failure, except for the Services set out in this Agreement. Client agrees to immediately notify DynaFire in writing if the Equipment is altered or relocated by any person, including Client. DynaFire reserves the right to perform a re-acceptance test on any relocated Equipment at the expense of Client. Client agrees not to attach to the System or Equipment any device that interferes with the Services or the proper operation of the System or Equipment.
Exclusions from Services
Except as provided for in this Agreement, the Services to be performed do not include and DynaFire is not responsible for (1) the provision of consumable supplies, including and not limited to batteries; (2) reinstallation or relocation of the Equipment; (3) painting or refinishing of the Equipment or the surrounding surfaces; (4) parts, accessories, attachments, or other devices added to the Equipment that were not provided or installed by DynaFire; (5) work required as a result of Client’s failure to supply suitable operating environment including, but not limited to, adequate space, ventilation, electrical power, and protection from the elements; or (6) the removal or reinstallation or replacement of valves, dampers, water flow switches, venting or draining systems.
Taxes, Fees & Charges
In the event of any taxes, fees and charges charged by third parties and related to the system, the installation or the service, are increased, or if additional taxes, fees, charges or utility charges are imposed, then DynaFire may, at any time, to pass on to the Client the amount of any such charges. Notwithstanding any other terms and conditions set forth herein, after the expiration of one (1) year of the completion of installation, DynaFire may increase the Recurring Service Charge annually in an amount not exceeding increase in CPI-U (Consumer Price Index – All Urban Consumers) as published by the Dept. of Labor.
This Agreement may be assigned by DynaFire without the consent of the Client and DynaFire shall have the further right to subcontract any services which it is obligated to perform hereunder.
Changes to Orders; Returns
After acceptance of an order, any change in product specifications, quantities, destinations, shipping schedules, or any other aspect of the scope of goods must be agreed to in writing by DynaFire, and may result in a price and time-of-delivery adjustment by DynaFire, as determined in DynaFire’s reasonable discretion. No credit for goods returned by Client shall be given without DynaFire’s written authorization. All returns are subject to a restocking charge. Without limitation of other remedies, Client shall be liable to DynaFire for the price of goods identified to the contract if the DynaFire determines, in its discretion, that the circumstances reasonably indicate that an effort to resell them will be unavailing and for the price of goods specially manufactured for the buyer.
The Client acknowledges that after a scope of work has been identified, a governmental authority may establish additional requirements for compliance with building codes or other standards. Client acknowledges that DynaFire’s performance in accordance with plans and specifications is not a guarantee of approval by building officials or the Authority Having Jurisdiction. Any additional services or equipment required for such approval will be provided by DynaFire to Client pursuant to an additional fee.
Warranty; General Limitation of Liability
Warranty on Goods
Except as further limited herein, DynaFire warrants that the goods that it sells or installs hereunder will be free from substantive defects in workmanship and materials, that the goods supplied shall be of fair average quality in the trade and within the description of the contract. If goods are found, within one (1) year from the date of the original invoice, to be nonconforming, and cannot be made to conform to the warranty, DynaFire shall either furnish substitute goods or, at the sole option of DynaFire, all payments made or security given on the purchase price shall be refunded to Client. The exercise of either of the options stated above shall constitute a settlement in full of all claims of Client for damages, and shall operate as a release of all claims for damages of both Client and DynaFire arising out of this Agreement.
Warranty on Services and Installed Equipment
DynaFire warrants to Client alone only that DynaFire will perform inspections testing services in a professional and workmanlike manner and in accordance with NFPA and industry standards. DynaFire make no other warranties, express or implied with respect to inspection and testing services.
DynaFire warrants to Client alone only that any equipment installation by DynaFire will be performed in a good and workmanlike manner. If any equipment becomes defective within one (1) year from the date of the original invoice for the installation, DynaFire shall replace or repair the defective part without charge to Client and this shall be our sole obligation. If Client discover a defect in installed equipment, Client should immediately contact DynaFire in writing or by telephone and fully describe the defect so that repair service may be rendered.
Limits to Warranties
No warranties expressed in this Agreement are assignable. The express warranties set forth herein do not cover damage to equipment caused by accident, theft, vandalism, negligence, water, lightning, fire, intrusion, abuse, misuse, act of god, war, riots, terrorism, any casualty, including electrical charges, attempted unauthorized repair service, modification or improper installation by anyone other than DynaFire, or any other cause other than ordinary wear and tear. DynaFire shall not be liable for any general, direct, special, exemplary, punitive, incidental or consequential damages. Any affirmation of fact or promise made by DynaFire shall not be deemed to create an express warranty. DynaFire does not make any representation or warranty, including any implied warranty of merchantability or fitness that the equipment, system or services may not be compromised, circumvented, or will in all cases provide the signaling, monitoring and response intended. Client are not relying on DynaFire’s skill or judgment in selecting or furnishing a system suitable for any particular purpose; there are no express warranties that extend beyond those in this agreement or in this paragraph. All implied warranties, if any, coincide with the duration of this warranty. Except as set forth herein, no other warranty, express or implied, is made by DynaFire, and none shall be imputed or presumed.
Disclaimer of Warranties
THERE ARE NO EXPRESS OR IMPLIED WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. DYNAFIRE MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO GOODS SOLD UNDER THIS AGREEMENT. DYNAFIRE ASSUMES NO RESPONSIBILITY WHATSOEVER FOR DYNAFIRE’S INTERPRETATION OF PLANS OR SPECIFICATIONS PROVIDED BY CLIENT, AND CLIENT’S ACCEPTANCE AND USE OF GOODS AND SERVICES SUPPLIED HEREUNDER SHALL BE PREMISED ON FINAL APPROVAL BY CLIENT OR CLIENT’S RELIANCE ON ARCHITECTS, ENGINEERS, OR OTHER THIRD PARTIES RATHER THAN ON DYNAFIRE’S INTERPRETATION.
Disclaimer of Liability
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT, WHETHER IN CONTRACT, WARRANTY, INDEMNITY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING DIRECTLY OR INDIRECTLY OUT OF DYNAFIRE’S PERFORMANCE, NON-PERFORMANCE OR BREACH OF THE AGREEMENT, SHALL DYNAFIRE BE LIABLE FOR (A) ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES SUCH AS LOSS OF USE, LOST PROFITS, LOSS OF USE, LOST DATA, OR FOR ANY DAMAGES OR SUMS PAID BY CLIENT TO THIRD PARTIES, ATTORNEYS’ FEES OR DELAY DAMAGES, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR CAUSED BY DYNAFIRE’S BREACH OF THIS AGREEMENT, (B) ANY CLAIM THAT PROPERLY IS A CLAIM AGAINST THE MANUFACTURER, OR (C) ANY AMOUNT EXCEEDING THE AMOUNT PAID TO DYNAFIRE FOR GOODS FURNISHED TO CLIENT WHICH ARE THE SUBJECT OF SUCH CLAIM(S). CLIENT WAIVES ANY AND ALL NEGLIGENCE CLAIMS IT MAY SEEK AGAINST DYNAFIRE ARISING IN CONNECTION WITH PERFORMANCE OR NON-PERFORMANCE UNDER THIS AGREEMENT.
Notice of Claims
Any claim of Client arising directly or indirectly out of DynaFire’s performance, non-performance, or breach of the Agreement, must be presented by the Client by notice in writing to DynaFire, within one (1) year after the claim arises. The notice shall specifically identify the nature of the claim and the provisions of this Agreement affected as a result of such claim. DynaFire may cure the breach or condition giving rise to the claim within thirty (30) business days following its receipt of the written notice or, if the condition cannot be reasonably cured within such period, to promptly commence to cure and diligently proceed until cured. If the condition giving rise to the claim is cured, this Agreement shall continue unabated and DynaFire shall not be liable to Client for any loss, damage or expense arising out of or from, resulting from, related to, in connection with or as a consequence of such conditions. Any claim of Client which is not presented in writing as required herein, and any action or proceeding arising from such claim, shall be barred. Time is of the essence for this notice requirement.
In addition, ANY CLAIMS FOR CONSTRUCTION DEFECTS ARE SUBJECT TO THE NOTICE AND CURE PROVISIONS OF CHAPTER 558, FLORIDA STATUTES.
Exculpatory Limitation of Liability
The Parties represent and warrant that (1) DynaFire is not an insurer, (2) this Agreement is not intended to be an insurance policy or a substitute for an insurance policy, (3) prices charged to Client are based solely upon the value of the services provided and are unrelated to the value of the Client’s property or the property premises, (4) DynaFire is not assuming liability, and therefore shall not be liable to Client for, any loss, including, without limitation, any claims for bodily injury, wrongful death, property damage, or any other direct or consequential damages sustained by Client as a result of fire, equipment failure, smoke, or any other cause whatsoever, and (5) DynaFire has made no representations or warranties, express or implied, except as expressly set forth with limitations herein. For the avoidance of doubt, DynaFire does not represent or warrant that the System may not be compromised or circumvented. The Parties agree as follows.
- The amounts payable by the Client are not sufficient consideration to induce DynaFire to assume any risk of direct, consequential or other damages to the Client except as expressly assumed by DynaFire in this Agreement.
- DynaFire is being paid for the installation, and/or testing and/or inspection, and/or maintenance, and/or monitoring of a system designed to reduce certain risks of loss but the amounts being charged by DynaFire are not sufficient to guarantee, and DynaFire does not guarantee, that no loss will occur. DYNAFIRE SHALL NOT BE LIABLE FOR LOSS OR DAMAGE ARISING DIRECTLY OR INDIRECTLY FROM ANY OCCURRENCE OR LOSS WHICH THE GOODS, SERVICES, AND/OR EQUIPMENT PROVIDED BY DYNAFIRE ARE DESIGNED TO DETECT OR AVERT, EVEN IF DUE TO DYNAFIRE’S NEGLIGENT PERFORMANCE TO ANY DEGREE OR FAILURE TO PERFORM ANY OBLIGATION UNDER THIS AGREEMENT OR UNDER ANY EXTRA-CONTRACTUAL OR LEGAL DUTY, STRICT PRODUCTS LIABILITY DUTY, OR ANY OTHER LEGAL DUTY. IN THE EVENT OF ANY LOSS OR INJURY TO ANY PERSON OR PROPERTY, CLIENT AGREES TO LOOK TO CLIENT’S INSURER TO RECOVER DAMAGES, AND CLIENT RELEASES DYNAFIRE, FROM ANY CLAIMS FOR CONTRIBUTION, INDEMNITY OR SUBROGATION. The Client assumes all risk and shall indemnify DynaFire, for and against loss or damage to Client’s premises or to its contents, whether belonging to Client or others, whether due to defects in the system or acts or omissions of DynaFire in receiving and responding to alarm signals.
- From the nature of the services to be performed, it is impractical and extremely difficult to fix the actual damages, if any which may proximately result from a failure on the part of DynaFire, to perform any of its obligations hereunder or the failure of the System to properly operate. If DynaFire should be found liable for loss or damage, such liability shall be limited to an amount equal to one-half of one year’s recurring charge. This sum shall be complete and exclusive and shall be paid and received as liquidated damages and not as a penalty. Any company which renders monitoring or other services in connection with this Agreement may invoke the provisions of this subparagraph against the Client and against any claims made by the Client, and Client agrees to be bound by the provisions of the Agreement.
- In the event that Client desires DynaFire to assume greater liability for the performance of its services under this Agreement, a choice is hereby given of obtaining full or limited liability by paying an additional amount proportioned to the amount of liability DynaFire will assume. If this option is chosen, an additional rider shall be attached to this Agreement setting forth the additional liability of DynaFire and the additional charges.
This paragraph is intended, with respect to the liabilities described herein, to limit and modify any other indemnification, hold harmless agreement, express or implied warranty, or statement regarding the quality of goods, services or materials which DynaFire may have executed in favor of any party in connection with the Services. To the extent that this paragraph is in conflict with or provides for more limited liability than, any of the foregoing, this paragraph shall prevail.
Third Party Claims / Waiver of Subrogation
There are no third-party beneficiaries to the Agreement.
In the event that any person not a party to the Agreement shall file any claim against DynaFire for any reason whatsoever related to the service furnished hereunder including without limitation the installation, repair, monitoring, operations, misoperation or non-operation of the system, Client agrees to indemnify, defend and hold DynaFire and its employees and agents from any and all claims, including payment of all damages, expenses and cost (including reasonable attorney’s fees). Sufficient property and bodily injury insurance shall be obtained by and is the sole responsibility of Client. Client agrees to rely exclusively on Client’s insurer to recover for bodily injuries or property damage in the event of any loss or injury to the premises or property therein. Client does hereby, for itself and all others claiming by or through it under this Agreement, release and discharge DynaFire from and against all damages, costs or expenses covered by Client/Client’s insurance, it being expressly agreed and understood that no insurance company, insurer, surety or other person will have a right of subrogation against DynaFire.
Use of Name and Images
Client grants to DynaFire the right to use in its training and promotional material, the Client’s name along with the name and images of the Client’s facilities in which DynaFire has installed equipment, as well as the likeness of any or all employees and officers of Client, at no charge to DynaFire. However, the use of any personal likeness shall be subject to any third-party contractual restrictions. If, for any reason, the likeness of any of Client’s officers or employees may not be so utilized, Client shall promptly advise DynaFire, and DynaFire agrees not to use or to discontinue use of such individual’s likeness.
DynaFire shall not be liable for delay in delivery or default resulting from any cause beyond DynaFire’s reasonable control, including, but not limited to, governmental action, strikes or other troubles, fire, damage or destruction of goods, wars (declared or undeclared), acts of terrorism, manufacturers’ shortages, availability of timeliness of transportation, materials, fuels, or supplies, and acts of God (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event: (a) the time for DynaFire’s performance shall be extended reasonably and the Parties shall adjust all affected dates accordingly; (b) the purchase price shall be adjusted for any increased costs to DynaFire resulting from such Force Majeure Event; and (c) Client shall not be entitled to any other remedy.
Jurisdiction; Venue; Governing Law
Client expressly agrees jurisdiction and venue for any legal action related to or arising under this Agreement shall lie exclusively in the state or federal courts for Lake or Seminole County, Florida with the Plaintiff in any such action having the sole right to choose among any of these venues. This Agreement shall be governed and construed exclusively by the provisions contained within this Agreement and in accordance with the laws of Florida.
Miscellaneous; Modification; Other Writings
This Agreement may be modified only by written amendment or another form of modification executed by authorized representatives of the parties hereto. It may not be modified by oral agreement, by any implied agreement or custom, or by any waiver of its terms unless in writing.
No modification or alteration of these Terms shall result from DynaFire’s delivery or performance following receipt of Client’s purchase order or any other document containing additional, conflicting or inconsistent terms. These Terms shall be binding upon the parties and their respective heirs, executors, administrators, successors, assigns and personal representatives. This writing shall prevail over any inconsistent terms contained within Client’s purchase order or other documents provided by Client even if acknowledged by DynaFire. Additional or different terms and conditions that alter or modify these Terms are expressly rejected by DynaFire and are not binding upon DynaFire unless an authorized representative of DynaFire specifically accepts the additional or different terms or conditions in writing. If Client fails to comply with these Terms, DynaFire may terminate or restrict any order immediately upon notice to Client.
Waiver of Jury Trial
THE PARTIES WAIVE TRIAL BY JURY IN ANY ACTION TO ENFORCE THIS AGREEMENT.
If any one or more of the provisions contained herein is held to be unlawful, or unenforceable, the provision will not affect the enforceability of any other provision of this Agreement, which shall remain in full force and effect. In such event, this Agreement shall be construed as if the illegal or unenforceable provision had not been included in the Agreement.
Insolvency; Change in Control. Miscellaneous.
If Client fails to comply with these Terms, DynaFire may terminate or restrict any order immediately upon notice to Client. Client certifies that it is solvent and that it will advise DynaFire immediately if it becomes insolvent. Client agrees to send DynaFire written notice of any changes in the form of ownership of Client’s business within 5 days of such changes. Client and DynaFire are the only intended beneficiaries of this document, and there are no third-party beneficiaries. The Terms shall survive termination, cancellation and completed performance of this Agreement as long as necessary to allow the aggrieved party to fully enforce such clauses as contained therein.
Where credit is to be extended, and at the time the order is placed, Client will provide accurate and complete information to enable DynaFire to preserve any and all rights to encumber the job, property, real estate, or bond on the project, where DynaFire’s materials are to be incorporated, by serving any such necessary Pre-Lien Notice in accordance with the lien law requirements of the State where the project is located. Client’s failure to provide accurate or complete Job or Project information at the time the order is placed will constitute a material breach of this Agreement and DynaFire shall have a cause of action against Client for all damages sustained as a result of such breach, in addition to all rights and remedies provided by this Agreement, including those available under all applicable state or federal lien statutes.
In any action to enforce the terms of this Agreement, or to collect any moneys owed or claimed to be owed to DynaFire, the prevailing party shall be entitled to recover its reasonable attorneys’ fees.
DynaFire & DynaNet Radio Service
Fees for DynaNet Radio Monitoring are for services only. Client understands that all radio equipment remains the property of DynaFire and does not constitute an improvement to real property. All radio transmission equipment shall be returned to DynaFire upon the termination of this Agreement. The DynaNet Radio is warranted from manufacturing defects, including battery replacement for the life of the contract. Damage resulting from accidents, acts of God, alteration, misuse, tampering or abuse of failure of the Client to properly follow operating instructions. Client shall call DynaFire for service under the warranty and upon inspection of the “conditions” not covered by warranty, a charge will be made for such at DynaFire Inc. then applicable rates for labor and materials. Service will be furnished by DynaFire during normal working hours 8:00 A.M. to 4:30 P.M., Monday through Friday, except holidays. Repair after said schedule must be approved by DynaFire and will be charged at DynaFire after hour’s applicable rates.