Terms And Conditions

GENERAL TERMS AND CONDITIONS FOR ONLINE SALES

WARNING: PROFESSIONAL USE ONLY

All sales are intended solely for use and installation by licensed professionals and their authorized agents. These goods may pose significant risks and hazards if handled improperly. Buyer acknowledges and agrees that any use, installation, or maintenance of the goods by individuals who are not licensed professionals may lead to serious injury, property damage, or other significant harm. Fuel Efficiency Inc. accepts no liability for any loss or damage arising from such unauthorized use or installation. It is the responsibility of the Buyer to ensure that all handlers are adequately qualified and licensed.

1. Applicability.

(a) These terms and conditions of sale (these "Terms") are the only terms that govern the sale of the goods ("Goods") by Fuel Efficiency Inc. ("Seller") to the buyer named on the Order Confirmation (as defined below) ("Buyer"). Collectively, Buyer and Seller are referred to as the "Parties" and individually as "Party."

(b) The accompanying order confirmation (the "Order Confirmation") and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement supersedes any of Buyer's general terms and conditions of purchase, regardless of whether or when Buyer has submitted its purchase order or such terms. Seller expressly rejects Buyer's general terms and conditions of purchase, and fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions or serve to modify or amend these Terms. Acceptance of the Order Confirmation by Buyer is a prerequisite to the purchase of the Goods and shall operate as an acceptance of these Terms which are expressly incorporated into the Order Confirmation. Buyer may cancel an order prior to its acceptance by Seller by providing written notice to Seller. Upon receipt of such notice, Seller shall confirm the cancellation in writing, and the order shall be deemed canceled without any further obligation on either party.

2. Delivery.

(a) The goods will be delivered within a reasonable time after the receipt of Buyer's purchase order, subject to availability of the Goods. Delivery dates given by Seller are estimates only and are subject to shipping variations and requirements. Seller shall not be liable for any delays, loss, or damage in transit. Claims for loss or damage to goods in transit must be made to the carrier, and not to Seller. All delivery dates are approximate. Further, Seller shall not be liable for any damage as a result of any delay or failure to deliver due to any cause beyond Seller’s reasonable control, including (but not limited to) any act of God, act of the Buyer, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, riot, act of terrorism, pandemic or other widespread outbreak of disease, delay in transportation or delays by Seller’s suppliers.

(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to the point of shipment of a carrier of the Seller’s discretion using Seller's standard methods for packaging and shipping such Goods, which may be modified by Seller from time to time in its sole discretion . Buyer shall be responsible for all shipping costs, loading costs, and will provide equipment and labor reasonably suited for receipt of the Goods. Buyer is responsible for fees associated with not taking timely delivery of the Goods, such as storage fees.

(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer's purchase order.

3. Title and Risk of Loss. Title and risk of loss pass to Buyer upon delivery of the Goods to a carrier at a point of shipment for Goods shipped directly by the seller, or if the Goods are shipped on a vehicle owned or operated by the Seller, title shall pass immediately upon delivery to the Buyer. .As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New York Uniform Commercial Code.

4. Amendment and Modification. Except for Section 2(b), these Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each Party.

5. Inspection.

(a) Buyer shall inspect the Goods within 48 hours of receipt ("Inspection Period"). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods (as defined below) during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. "Nonconforming Goods" means only the following: (i) product shipped is different than identified in the Order Confirmation; or (ii) product's label or packaging incorrectly identifies its contents.

(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable third-party shipping and handling expenses actually incurred and paid by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller's facility located at 101 Davis Pkwy, Clyde, NY 14433. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer's shipment of Nonconforming Goods, ship to Buyer, at Buyer's expense and risk of loss, the replaced Goods to the Delivery Point.

(c) Buyer acknowledges and agrees that the remedies set forth in Section 5(b) are Buyer's exclusive remedies for Nonconforming Goods. Except as provided under Section 5(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.

6. Price.

(a) Buyer shall purchase the Goods from Seller at the prices (the "Prices") set forth in Seller's published price list in force as of the date of the Order Confirmation.

(b) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personnel, or real or personal property or other assets. The Prices include standard packaging. The Prices exclude transportation and insurance costs which are the responsibility of the Buyer.

7. Payment Terms.

(a) Buyer shall pay Seller all invoiced amounts due within thirty (30) days after the date of Seller's invoice. All payments hereunder shall be in US dollars and made by wire transfer, ACH, or other electronic payment method approved by Seller in writing. Seller reserves the right to require pre-payment in its sole discretion.

(b) Buyer shall pay interest on all late payments at the lesser of the rate of 16% per annum or the highest rate permissible under applicable law. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for five (5) days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller's breach, bankruptcy, or otherwise.

8. Limited Warranty; Buyer’s Representations.

(a) Seller warrants to Buyer that:

(i) For a period of thirty (30) days from the date of delivery of the Goods (the "Warranty Period"), the Goods will materially conform to Seller's published specifications in effect as of the date of shipment under the corresponding Order Confirmation; and

(ii) Buyer will receive good and valid title to the Goods, free and clear of all encumbrances and liens.

(iii) The warranties under this section do not apply where the Goods have been: (1) subjected to abuse, misuse, neglect, negligence, accident, abnormal physical stress or environmental conditions, use contrary to any instructions issued by Seller, or improper testing, installation, storage, handling, repair, or maintenance; (2) reconstructed, repaired, or altered by anyone other than Seller or its authorized representative; or (3) used with any third-party product, hardware, or product that has not been previously approved in writing by Seller.

(b) BUYER REPRESENTS AND WARRANTS THAT IT POSSESSES THE REQUISITE SKILL, EXPERTISE, AND ABILITY TO PROPERLY INSTALL, OPERATE, AND MAINTAIN THE GOODS IN ACCORDANCE WITH SELLER'S SPECIFICATIONS, INSTRUCTIONS, INDUSTRY STANDARDS, AND APPLICABLE REGULATIONS AND LAW. BUYER ACKNOWLEDGES THAT ANY FAILURE TO DO SO MAY VOID ANY APPLICABLE WARRANTIES AND RELEASES SELLER FROM LIABILITY FOR ANY ISSUES, DAMAGES TO PERSONAL OR REAL PROPERTY, OR ANY RESULTING INJURIES ARISING FROM IMPROPER INSTALLATION, USE, OR MAINTENANCE.

9. Buyer's Exclusive Remedy for Breach of Warranty. During the Warranty Period:

(a) Buyer shall notify Seller, in writing, of any alleged warranty claim within ten (10) days from the date Buyer discovers, or upon reasonable inspection should have discovered, such alleged claim (but in any event before the expiration of the applicable Warranty Period);

(b) Buyer shall ship the relevant Goods within five (5) days of the date of its notice to Seller, at its expense and risk of loss, to Seller's facility as directed by Seller in writing for inspection and testing by Seller;

(c) If Seller's inspection and testing reveals, to Seller's reasonable satisfaction, that such Goods do not conform with the limited warranty set forth herein, Seller shall in its sole discretion, and at its expense (subject to Buyer's compliance with this Section 9, either (i) repair or replace such Goods, or (ii) credit or refund the Price of such Goods less any applicable discounts, rebates, or credits; and

(d) If Seller exercises its option to repair or replace, Seller shall, after receiving Buyer's shipment of such Goods, ship to Buyer, at Buyer's expense and risk of loss, the repaired or replacement Goods to a location designated by Seller.

(e) Buyer has no right to return for repair, replacement, credit, or refund any Goods except as set forth in this Section 9.

(F) THIS SECTION 9 SETS FORTH THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF ALL WARRANTIES.

10. WARRANTIES DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 8, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER INDIVIDUAL OR ENTITY ON SELLER'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 8 OF THIS AGREEMENT.

11. INDEMNIFICATION. BUYER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER, ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, SUITS, ACTIONS, LOSSES, JUDGMENTS, COSTS OR EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, RELATING TO OR ARISING OUT OF: (A) ANY INJURY, DISEASE OR DEATH OF PERSONS (INCLUDING, WITHOUT LIMITATION, BUYER'S EMPLOYEES AND AGENTS); (B) DAMAGE TO OR LOSS OF ANY PROPERTY OR THE ENVIRONMENT; (C) VIOLATION OF ANY APPLICABLE LAWS OR REGULATIONS RESULTING FROM OR IN CONNECTION WITH THE SALE, TRANSPORTATION, INSTALLATION, USE, OR REPAIR OF THE GOODS BY BUYER OR OF THE INFORMATION, DESIGNS, SERVICES OR OTHER WORK SUPPLIED TO BUYER, WHETHER CAUSED BY THE CONCURRENT AND/OR CONTRIBUTORY NEGLIGENCE OF BUYER, SELLER, OR ANY OF THEIR AGENTS, EMPLOYEES OR SUPPLIERS; (D) ANY CLAIM OR DEMAND FOR ANY TAXES, PENALTIES AND INTEREST PAID BY SELLER, AND ANY ACTIONS RELATED THERETO TAKEN BY BUYER; (E) ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY PATENT, TRADEMARK, COPYRIGHT, TRADE DRESS, TRADE SECRET OR ANY SIMILAR RIGHT OF ANY THIRD PARTY RIGHT WITH RESPECT TO ANY GOOD OR SERVICES; (F) BUYER’S ACTS, OMISSIONS, OR BREACH OF THE AGREEMENT; OR (G) ANY CLAIM OR DEMAND WHICH BUYER’S CUSTOMERS OR ANY OTHER PERSON, WHETHER OR NOT IN PRIVITY TO SELLER, MAY MAKE AGAINST SELLER BASED UPON OR ARISING FROM THE PURCHASE, SALE, OR USE OF GOOD OR FROM ANY PATENT OR HIDDEN DEFECTS IN THE QUALITY OF GOOD OR THE DANGEROUS CONDITION THEREOF, REGARDLESS OF THE LEGAL THEORY ASSERTED OR IF BROUGHT PURSUANT TO A CLASS ACTION STATUTE. SELLER SHALL HAVE NO LIABILITY FOR CLAIMS OF INFRINGEMENT BASED ON INFORMATION PROVIDED BY BUYER, OR DIRECTED TO GOODS DELIVERED HEREUNDER FOR WHICH THE DESIGNS ARE SPECIFIED IN WHOLE OR IN PART BY BUYER, OR INFRINGEMENTS RESULTING FROM THE MODIFICATION, COMBINATION OR USE IN A SYSTEM OF ANY GOOD SOLD HEREUNDER. THE OBLIGATIONS, INDEMNITIES AND COVENANTS CONTAINED IN THIS PARAGRAPH SHALL SURVIVE THE CONSUMMATION OR TERMINATION OF THIS AGREEMENT.

12. LIMITATION OF LIABILITY.

(a) IN NO EVENT SHALL SELLER OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

(B) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE PRODUCTS OR SERVICES IS LIMITED TO THE AMOUNT PAID BY BUYER FOR THE APPLICABLE PRODUCT OR SERVICE. BUYER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO DEFECTIVE PRODUCTS SHALL BE THE REPAIR, CORRECTION OR REPLACEMENT OF SUCH PRODUCTS; HOWEVER, IF REPAIR OR REPLACEMENT OF SUCH PRODUCTS IS, IN SELLER’S SOLE DISCRETION, IMPRACTICABLE, THEN BUYER’S SOLE AND EXCLUSIVE REMEDY SHALL BE THE REFUND OF THE PURCHASE PRICE OF THE DEFECTIVE PRODUCTS UPON THE RETURN OF THE PRODUCTS TO SELLER.

13. Compliance with Law. Buyer shall at all times comply with all laws applicable to the operation of its business, this Agreement, Buyer's performance of its obligations hereunder, and Buyer's use of the Goods. Without limiting the generality of the foregoing, Buyer shall (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase or use of the Goods and (b) not engage in any activity or transaction involving the Goods, by way of shipment, use, or otherwise, that violates any law.

14. Third-Party Data Sharing. Seller may share personal data with third parties only as necessary to fulfill its obligations under this Agreement or as required by law. Such sharing may include, but is not limited to, sharing with shipping providers for delivery purposes, payment processors for transaction processing, and cloud service providers for data storage. Seller shall ensure that any third party receiving personal data is bound by appropriate confidentiality and data protection obligations.

15. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement, and such failure continues for five (5) business days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

16. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement by Seller operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by Seller precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by Seller.

17. Confidential Information. All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain through no fault of the buyer; (b) known to Buyer at the time of disclosure as evidenced by written records; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party who did not owe the Seller a duty or obligation of confidentiality.

18. Force Majeure. Seller shall not be liable, nor in breach or default of its obligations under this Agreement, for any delays, interruption, or failure to perform under this Agreement, where such delay, interruption or failure is caused, in whole or in part, directly or indirectly, by a Force Majeure Event. If Seller’s performance is delayed, impacted, or prevented by a Force Majeure Event or its continued effects, Seller will be excused from performance or, at Seller’s option, entitled to complete performance and extend any relevant completion date or scheduled milestone by the amount of time that Seller was delayed as a result of the Force Majeure Event, plus such additional time as may be reasonably necessary to overcome the effect of the delay. To the extent that the Force Majeure Event directly or indirectly increases Seller’s cost to perform, Buyer shall reimburse Seller for such increased costs, including, without limitation, costs incurred by Seller for additional labor, inventory storage, expedited shipping fees, trailer and equipment rental fees, subcontractor fees, compliance with government requirements, or other costs and expenses incurred by Seller in connection with the Force Majeure Event. As used herein, a “Force Majeure Event” is a condition or event that is beyond the reasonable control of Seller, whether foreseeable or unforeseeable, including but not limited to the following: acts of God or natural disasters, acts or omissions of any governmental authority (including, without limitation, change of any applicable law or regulation), disease or public health risks and/or responses thereto, strikes, labor disputes, an increase of 5% or more as a result of Trade Restrictions or other excise taxes for materials to be used on the project, fires, explosions or other casualties, thefts, vandalism, civil disturbances, riots, war or other armed conflict (or the serious threat of same), acts of terrorism, electrical power outages, interruptions or degradations in telecommunications, computer, network, or electronic communications systems, cyber-attacks, or unavailability or shortage of parts, materials, supplies, or transportation.

19. Assignment. Buyer's rights, interests, or obligations hereunder may not be assigned, transferred, or delegated by Buyer without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

20. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

21. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

22. Governing Law; Jurisdiction. This Agreement is governed by, and construed in accordance with the laws of the State of New York without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction. All legal proceedings shall be instituted in the state or federal courts in the County of Wayne in the State of New York. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts.

23. Notices. All notices shall be in writing and addressed to the parties at the addresses set forth on the face of the Order Confirmation or to such other address for either party as that party may designate by written notice. All notices must be delivered by nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested).

24. Severability; Construction. If any term or provision of this Agreement is determined to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. The headings contained in these Terms are for convenience of reference only and are not intended to have any substantive significance in interpreting this document. These Terms shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared these terms and conditions of sale and any uncertainty or ambiguity shall not be interpreted against any one party.

25. Miscellaneous. The rights and remedies under this Agreement are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.