Terms and Conditions for Automated Disinfectant System by Organicide LLC
“Agreement” means the Service Agreement and entire content of these Terms and Conditions, together with any exhibits, schedules or attachments thereto or hereto, as the same may be amended and/or restated from time to time.
“Client” means the person, and where applicable, organization ordering the System(s) and/or Service(s) pursuant to one or more Service Agreements.
“Delivery Point” means the location for the shipment of the System as identified in the Service Agreement, unless some other delivery point is agreed to in writing by Organicide and Client.
“Indemnified Party” means all officers, directors, shareholders, employees, agents, affiliates, successors and permitted assigns of Organicide.
“Inspection Period” means the five (5) day period commencing with the initial delivery of the System to the Client.
“Invoice” means an itemized statement of money owed for Systems and/or Services under this Agreement.
“Nonconforming Systems” means that the System shipped is different than identified in the Service Agreement.
“Organicide” means Organicide LLC, a Florida limited liability company.
“Price” means the price set forth in the Service Agreement.
“Service(s)” means service(s) relating to the procurement, installation, repair, or maintenance of the Systems as specified in the applicable Service Agreement.
“Service Agreement” means the document(s) used by Organicide to identify the System(s) and/or Service(s) to be provided by Organicide , which is signed by Client and Organicide, and which is governed by these Terms and Conditions (except in the event of any inconsistency between the Service Agreement and the Terms and Conditions, in which case the terms of the Service Agreement will govern).
“Systems” means the Automated Disinfectant System and related components as specified in the applicable Service Agreement.
“Term” means the term of this Agreement, which commences on the effective date set forth in the Service Agreement and continues for the period set forth in the Service Agreement, unless terminated sooner in accordance with the Agreement.
“Terms and Conditions” means these terms and conditions.
“Third Party Materials” means third party materials which may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the System(s).
1.1 General terms. The Agreement are the only terms that govern the Systems and the Services.
1.2 Choice of law; Jurisdiction. This Agreement and all matters relating to its validity, construction, performance and enforcement, and all claims or disputes relating to or arising out of this Agreement shall be governed in accordance with the laws and regulations of the State of Florida without giving effect to its conflict of law provisions. All disputes arising out of or in connection with this Agreement will be brought in the courts of Broward County, Florida, and the Parties consent to the jurisdiction of such courts.
1.3 Priority. The 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.
1.4 Change of Services. Notwithstanding anything to the contrary contained in this Agreement, Organicide may, from time to time change the Services without the consent of Client, provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Service Agreement.
2. DELIVERY OF SYSTEMS AND PERFORMANCE OF SERVICES
2.1 Time of Delivery. The Systems will be delivered within a reasonable time after the receipt of Client’s executed Service Agreement and deposits and acceptance by Organicide. Multiple System orders may be longer. Organicide will not be liable for any delays, loss or damage in transit.
2.2 Title and Risk of Loss. Title and risk of loss to the System(s) passes to Client upon delivery of the Systems at the Delivery Point.
2.3 Client’s Acts or Omissions. If Organicide’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants or employees, Organicide will not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
2.4 Purchase Money Security Interest. As collateral security for the payment of the Price of the Systems, Client hereby grants to Organicide a lien on and security interest in and to all of the right, title and interest of Client in, to and under the Systems, 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. If the payments due by the Client are not made within the terms established herein, the Client shall pay the default interest at the highest rate legally allowed.
2.5 Accommodation of Services. With respect to the Services, Client will (a) cooperate with Organicide in all matters relating to the Services and provide such access to Client’s premises, and such other facilities as may reasonably be requested by Organicide, for the purposes of performing the Services; (b) keep area safe from harm where Organicide is installing the Automated Disinfectant System or providing maintenance to the Automated Disinfectant System during the installation and/or maintenance process (c) respond promptly to any Organicide request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Organicide to perform Services in accordance with the requirements of this Agreement; and (d) provide such Client materials or information as Organicide may reasonably request and ensure that such Client materials or information are complete and accurate in all material respects. In the event that Organicide is unable to access Client’s premises for purposes of installation or maintenance during an agreed upon time and date of installation/maintenance, then Client shall pay Organicide a $150 fee (the hourly Service Fee) for the expense of Organicide’s time and travel to Client’s location.
2.6 Recommendations. As part of this Agreement (and subject to the warranty provisions in Section 8) Organicide may provide recommendations and advice to Client concerning the type of Systems needed, the preferred location of the Systems within the Client’s premises, and other matters related to the Systems and Services. In giving such recommendations and advice, Organicide relies on Client’s accurate representations concerning the Client’s facilities and operations. Client further acknowledges that, even in the absence of any defects, the performance of the Systems may vary based on external factors outside of Organicide’s knowledge or control, including, without limitation, Client’s use of premises. Organicide will not be responsible for any loss or any defect in the performance of the Systems that resulted from Client’s inaccurate information or from external factors outside of Organicide’s control.
2.7 Use of System. In order to use the System, Client must be subscribed to receive Services from Organicide. Client hereby acknowledges that upon termination of the Services, Client will no longer be able to operate the System.
3. INSPECTION AND REJECTION OF NONCONFORMING SYSTEMS
3.1 Inspection Period. Client will inspect the Systems within the Inspection Period. Client will be deemed to have accepted the Systems unless it notifies Organicide in writing of any Nonconforming Systems during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Organicide.
3.2 Nonconforming Systems. If Client timely notifies Organicide of any Nonconforming Systems, Organicide will, in its sole discretion, (a) replace such Nonconforming Systems with conforming Systems, or (b) credit or refund the Price for such Nonconforming Systems, together with any reasonable shipping and handling expenses incurred by Client in connection therewith. If Organicide exercises its option to replace Nonconforming Systems, Organicide will, after receiving Client’s shipment of Nonconforming Systems, ship to Client, at Client’s expense and risk of loss, the replaced Systems to the Delivery Point.
3.3 Remedies. Client acknowledges and agrees that the remedies set forth in Section 3.2 are Client’s exclusive remedies for the delivery of Nonconforming Systems. Except as provided under Section 3.2, all sales of Systems to Client are made on a one-way basis and Client has no right to return Systems purchased under this Agreement to Organicide.
4.1 Price. Client will purchase the System(s) and/or Service(e) from Organicide at the Price. The Price for the Service(s) is based on the projected monthly chemical use and is the minimum monthly charge to Client if chemical volume is less than projected. If actual chemical use exceeds the projected monthly chemical use, the Client will be invoiced for the increased volume of chemical based on Price level specified in the Service Agreement.
4.2 Taxes. 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. Taxes that are applicable to the Client will be the responsibility of the Client for payment and may be collected by Organicide if required by a governmental agency.
5. PAYMENT TERMS
5.1 Payment Terms. Organicide invoices are due upon receipt, unless otherwise specified in the Service Agreement. Deposits are required for Installation Services.
5.2 Interest. Client will pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Client will reimburse Organicide for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under the Agreement or at law (which Organicide does not waive by the exercise of any rights hereunder), Organicide will be entitled to suspend the delivery of any Systems or performance of any Services if Client fails to pay any amounts when due hereunder.
5.3 Disputes. Client will notify Organicide in writing or by email within five (5) days of receiving an invoice if Client disputes any entry on that invoice or the amount invoiced. In the absence of any such written objections within five (5) days, Client will be deemed to have accepted and acknowledged the invoice as correct.
5.4 No Withholding. Client will not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Organicide, whether relating to Organicide’s breach, bankruptcy or otherwise. Retainage of any kind is unacceptable.
6. CHANGE ORDERS
In the event that Client causes or requests (i) changes to be made which affect delivery, installation, specifications, completion dates or otherwise or (ii) Services or shipment of Systems to be delayed, whether directly or by other contracts or because the facilities, including utilities, electrical hookup, site preparation, governmental permits, approvals or licenses, apparatus, or other conditions to be provided or arranged by Client are lacking or insufficient, Client will reimburse Organicide for any expense incurred by Organicide in respect of or resulting from each such change or delay upon presentation by Organicide of a simple invoice. Any additional services or equipment not specifically set forth herein shall be at Client’s additional expense.
7. SERVICE AGREEMENT
7.1 The Price of Organicide Automated Disinfectant System includes ongoing maintenance and monitoring of the Systems under normal wear & tear and replenishment of chemicals based on use for the Term. Service visits are scheduled monthly, bi-monthly or quarterly depending on chemical use. As stated in 4.1 chemical use above projected volume will be invoiced accordingly. Any System damage or misuse caused by the Client, electrical issues, fire, water, terrorism, vandalism, force majeure or other will not be covered by the Service Agreement and will be additional costs to the Client. Plus any costs for materials, parts and time for additional visits or service requested by Client.
7.2 Service Performance Dates. Organicide shall provide either monthly, bi-monthly or quarterly site visits for the Term of to inspect the functioning and performance of the Systems system and provide ongoing systems maintenance, and other ongoing maintenance items related to the Systems System. The visits shall consist of the following: (a) startup (b) operational maintenance to ensure the Automated Disinfectant System is operating correctly and properly functioning (c) fail safe systems are operational and (d) replenishment of chemicals. Organicide and Client shall agree in advance on the scheduled service visits. All services related to the Service Agreement shall be conducted in accordance with Section 2 of this Agreement.
7.3 Materials. The Service Agreement (or additional visits requested by Client which are not through the Service Agreement) does not cover additional materials required to service the System beyond normal use. The cost and expense of any additional materials and/or parts shall be the sole cost and responsibility of the Client.
8. LIMITED WARRANTY
8.1 Warranty Period. The System(s) are warranted for the term of the Service Agreement. The warranty covers defects in material and workmanship and includes labor for on-site assistance. The warranty does not include travel expenses for on-site assistance. Organicide warrants that it shall perform any Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
8.2 Limitations. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 8.1 (if applicable), ORGANICIDE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY, (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) WARRANTY OF TITLE, OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
8.3 Third-Party Materials. Third Party Materials are not covered by the warranty in Section 8.1. For the avoidance of doubt, ORGANICIDE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY MATERIALS , INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY, (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
8.4 Breach of Warranties Notice Requirement. Organicide will not be liable for a breach of the warranties set forth in Sections 8.1 (if applicable) and unless: (a) Client gives written notice of the defective Systems or Services, as the case may be, reasonably described, to Organicide within 10 days of the time when Client discovers or ought to have discovered the defect; (b) if applicable, Organicide is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 8.1 (if applicable) to examine such Systems and Client (if requested to do so by Organicide) returns such Systems to Organicide’s place of business at Organicide’s cost for the examination to take place there; and (c) Organicide reasonably verifies Client’s claim that the Systems or Services are defective.
8.5 Exclusions. Organicide will not be liable for a breach of the warranties set forth in Section 8.1 (if applicable) if: (a) Client makes any further use of such Systems after giving such notice; (b) the defect arises because Client failed to follow Organicide’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Systems; (c) Client alters or repairs such Systems without the prior written consent of Organicide; (d) the defects or other problems in the Systems and/or Services arose due to inaccurate information provided by Client to Organicide; or (e) the defects or other problems in the Systems and/or Services arose due to external factors outside of Organicide’s knowledge or control, including, without limitation, Client’s use of facilities where the Systems are located.
8.6 Repairs and Refunds. Subject to Sections 8.1 through 8.5, with respect to any such Systems during the Warranty Period, Organicide will, in its sole discretion, either: (a) repair or replace such Systems (or the defective part) or (b) credit or refund the Price of such System(s) at the pro rata contract rate (less installation costs and additional service costs requested by Client) provided that, if Organicide so requests, Client will, at Organicide’s expense, return such Systems to Organicide. Subject to Sections 8.1 through
8.5, with respect to any Services subject to a claim under the warranty set forth in 8.1, Organicide will, in its sole discretion, (a) repair or re-perform the applicable Services or (b) credit or refund the Price of such at the pro rata contract rate.
8.7 Remedies. The remedies set forth in Sections 8.6 are the Client’s sole and exclusive remedy and Organicide’s entire liability for any breach of the limited warranties set forth in Sections 8.1 (if applicable).
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL ORGANICIDE BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT ORGANICIDE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL ORGANICIDE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO ORGANICIDE FOR THE GOODS AND SERVICES SOLD HEREUNDER, AS REFLECTED IN THE SERVICE AGREEMENT.
To the fullest extent permitted by law, Client shall indemnify, defend and hold harmless Organicide and the Indemnified Party against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees, the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers) resulting from any claim of a third party or Organicide arising out of or occurring in connection with (a) the Systems or Services purchased from Organicide, or (b) Client’s negligence, willful misconduct or breach of this Agreement. Client shall not enter into any settlement without Organicide’s or Indemnified Party’s prior written consent. This indemnification provision shall not apply to claims resulting directly from Organicide’s gross negligence or intentional misconduct.
11. COMPLIANCE WITH LAW
Client will comply with all applicable laws, regulations and ordinances. Client will maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
12.1 Termination. Except as otherwise provided in the Service Agreement, either party may terminate this Agreement with immediate effect upon written notice to other party at any time or for any reason.
12.2 Effect of Termination. The Term’s expiration or earlier termination does not affect any rights or obligations that are to survive the expiration or earlier termination of this Agreement (including full payment for any System(s) and Services for the full term of the Service Agreement(regardless of termination date); provided that all indebtedness of Client to Organicide of any kind is immediately due and payable on the effective date of the Term’s expiration or earlier termination, without further notice to Client.
13. CONFIDENTIAL INFORMATION
13.1 Confidential Information. All non-public, confidential or proprietary information of Organicide, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, Client lists, pricing, discounts or rebates, disclosed by Organicide to Client, 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 Organicide in writing. Upon Organicide’s request, Client will promptly return all documents and other materials received from Organicide. Organicide will 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; (b) known to Client at the time of disclosure; or (c) rightfully obtained by Client on a non-confidential basis from a third party.
13.2 Proprietary Components and Software. The Systems contain components and software that are proprietary to Organicide and its licensors. Client agrees that Client will not try to reverse-engineer, decompile, disassemble, tamper with or modify, any software or hardware contained within any System. Such actions are strictly prohibited and may result in the disconnection of the Services and/or legal action.
14. FORCE MAJEURE
Organicide will not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Organicide including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic (including Covid-19), quarantine, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage.
In the event that at any time Client is in default under any terms of any order arising out of this Agreement or any other order, Organicide reserves the right to withhold delivery of the Systems or performance of the Services and to cancel and terminate any or all orders and to hold Client liable for any damages and expenses incurred by Organicide. Organicide also reserves the right to declare all charges and accounts to be immediately due and payable.
16.1 Assignment. Client will not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Organicide. Any purported assignment or delegation in violation of this section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.
16.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement may 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 has authority to contract for nor bind the other party in any manner whatsoever.
16.3 No Third-Party Beneficiaries. 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 will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under this Agreement.
16.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “notice”) must be in writing and addressed to the parties at the addresses set forth on the face of the quotation, purchase order, order acknowledgment, or to such other address that may be designated by the receiving party in writing. All notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), verified email (with confirmation of transmission), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the notice has complied with the requirements of this Section.
16.5 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
16.6 Survival. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Limited Warranty, Limitation of Liability, Indemnification, Relationship of the Parties, No Third-Party Beneficiaries, Notices, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction, and Survival.
16.7 Amendment. These Terms and Conditions may be modified at any time and from time to time by Organicide It is Client’s responsibility to check these Terms and Conditions available at https://www.organicide.co/products-and-service periodically for changes. The Service Agreement may not be modified except in a writing signed by Organicide and Client.
16.8 Clerical Errors. Organicide reserves the right to unilaterally correct clerical, arithmetical, or stenographic errors or omissions in quotations, order acknowledgements, invoices, or other documents.
Organicide, LLC Terms & Conditions 9.23.20 rv.5