The sale of products and services (“Products”) by ESP Safety, Inc. and its divisions, subsidiaries, and affiliates (“ESP”) to a customer (“Customer”) are subject to these terms and conditions (“Agreement”) regardless of other terms or conditions in any purchase order, document, or other communication of Customer (“Order”). ESP objects to such other terms. This Agreement may only be modified in writing signed by authorized representatives of both ESP and Customer.

  1. ORDERS. Unless otherwise stated on the quote, ESP quotes are subject to change at any time without notice. All Orders are subject to acceptance by ESP. Contracts between Customer and ESP are formed upon ESPs written acceptance, Electronic Data Interchange acknowledgment or execution of Customer’s Order and are subject to this Agreement. All Orders for Products are non-cancelable, non-returnable, and non-reschedulable. Customer may not change, cancel, or reschedule Orders for non-standard or non-NCNR Products without ESP’s consent. ESP reserves the right to allocate the sale of Products among its customers.
  2. PRICES. Unless otherwise stated on ESP’s proposal, quote or invoice, prices are for Products only and do not include taxes, freight, duties, tariffs or any other charges or fees for additional services or expenses, including but not limited to inventory financing charges, increased freight charges, increased operating expenses, and costs incurred in holding customer inventory more than 30 days beyond the scheduled delivery date (collectively, “Additional Fees”). Unless otherwise stated on ESP’s proposal, quote or invoice, Customer is responsible for any and all Additional Fees. Prices are subject to change due to a supplier’s price increase, change in exchange rate or quoting errors. The price of Products shipped on or after the effective date of any price increase will be at the price in effect at the time of shipment.
  3. TERMS OF PAYMENT. Payment is due as stated on ESP’s invoice without offset or any deduction for withholding taxes or any other reason. On any past due invoice, ESP may charge interest from the payment due date to the date of payment at eighteen percent (18) percent per annum or the maximum amount allowed by applicable law, plus reasonable attorneys’ fees and collection costs, with a minimum fee of forty (40) Euros for sales in the European Union as required by the applicable law. At any time, ESP may change the terms of Customer’s credit. ESP  may apply payments to any of Customer’s accounts. ESP reserves the right to modify any payment terms prior to shipment, require payment in advance, or delay, reschedule or cancel any shipment or order for any reason (including Customer’s creditworthiness). If Customer defaults on any payment, ESP may declare all outstanding invoices due and payable immediately. Unless otherwise provided by applicable law, Customer credits provided by ESP will expire if unused within twelve (12) months.
  4. DELIVERY. Unless otherwise stated by ESP in writing, all ESP deliveries from the USA are FCA ESP’s warehouse (INCOTERMS 2020). ESP’s delivery dates are estimates only and subject to ESP’s timely receipt of supplies. ESP shall not be responsible or liable for any costs, losses or damages arising out of or related to: (i) any failure to deliver Products within the time prescribed therefor; (ii) delay in delivery; (iii) partial delivery; or (iv) early delivery. Customer shall accept Products notwithstanding delayed, partial or early delivery. Customer may not cancel any other Orders based on delayed delivery of any part of an Order.
  5. TITLE. As a form of payment security, title shall pass to Customer upon payment in full for the Product by Customer. In case of an onwards sale, Customer assigns all rights in the related receivables to ESP until Customer has made payment in full.

A. ESP warrants and represents that the Products sold to Customer shall be delivered with good title free of any rightful third party claim of infringement of any patent, copyright, trademark, trade secret or other intellectual property right recognized or registered within the United States. If a Product or part thereof is held to constitute an infringement and its intended use is enjoined, ESP shall at its option procure for Customer the right to continue using the Product or part, replace it with a non-infringing Product or part, or modify it to become non-infringing, or remove it and refund its purchase price (less depreciation and amortization). THIS IS ESP’S SOLE LIABILITY AND CUSTOMER’S SOLE REMEDY FOR INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT. This Section does not apply to (a) any product or part not supplied by ESP; (b) any Product or part supplied by ESP which is changed, modified, adapted or refitted without ESP’s express written approval; (c) any Product or part not in ESP’s standard inventory but purchased by it at Customer’s direction; (d) any Product or part manufactured to Customer’s design or (e) any claim of infringement arising from the use of any Product in combination with any other product not furnished by ESP.

B. The Products may be covered by the limited warranties in effect at the time the Products are delivered, on standard terms and conditions supplied with each product shipped and which are incorporated under Product Specification. Should Customer resell Products to any entity other than an end-user approved by ESP, and Products are further resold, the final end-user may not receive any ESP warranties.


    1. Customer may return Products to ESP only with a return material authorization (“RMA”) number issued by ESP.
    2. An RMA shall be issued by ESP subject to the following:
      1. Returns for Visual Defect: ESP Receipt of written notice of any damage to outer packaging, damage to Products, shortage of Products, or other discrepancy (“Visual Defect”) within three (3) business days after receipt of the shipment; otherwise, Customer is deemed to have accepted the Products;
      2. Returns for Product Warranty: ESP receipt of written notice stating the specific Product defect within the warranty period;
      3. the defect notified under (i) or (ii) was caused solely by ESP or the original manufacturer;
      4. the defect notified under (i) or (ii) is not damage, shortage, or other discrepancy created by Customer, a carrier, a freight provider or any third party;
      5. Customer must return the Products to ESP in compliance with instructions in the RMA provided by ESP; and
      6. ESP’s assessment of returned Products confirms eligibility for return under this section.
    3. ESP may return Products not eligible for return under this section to Customer on a freight collect basis or hold such Products for Customer’s collection and account at Customer’s expense.
  2. LIMITATION OF LIABILITY.In any action under or relating to this Agreement, whether based in contract, warranty, tort (including negligence) or any other legal theory, ESP shall not be liable for any indirect, special, incidental, punitive or consequential damages, including loss of profits, loss of revenue, loss of data, loss of use, rework, repair, manufacturing expense, costs of product recall, injury to reputation or loss of customers even if ESP has been advised of the possibility of such damages and notwithstanding the failure of essential purpose of any remedy in this Agreement. In no event shall ESP’s liability arising out of or in connection with this Agreement exceed the total amount paid to ESP for the specific Products at issue. To the extent ESP cannot lawfully disclaim any implied or statutory warranties, Customer’s statutory warranty rights are not affected by this limitation of liability.
  3. FORCES BEYOND ESP’S CONTROL. ESP will not be in breach of this Agreement and will not be liable for failure to fulfill its obligations under this Agreement, if any such failure or delay is due to or arising out of any legal theory of force majeure, an act of nature, act or omission of Customer, act of a governmental authority, including laws, regulations, orders or decrees, operational disruptions, man-made or natural disaster, epidemic, pandemic, shortage of labor, energy, fuel, materials or Products, strike, labor action, criminal act, war, terrorism, civil unrest, delay in delivery or transportation, inability to obtain labor, materials or Products through regular sources, communication or power failures, Act of God, or any cause beyond its reasonable control.
  4. USE OF PRODUCTS. Customer shall comply with the manufacturer’s Product specifications. If Customer uses or sells the Products for use in not specified applications, Customer acknowledges that such use, sale, or non-compliance is at Customer’s sole risk. Customer shall indemnify, defend and hold ESP harmless from any claims resulting from or arising out of: (i) ESP’s compliance with Customer’s designs, specifications, or instructions; (ii) modification of any Product by a party other than ESP; (iii) use of Products in combination with other products; (iv) use of Products not authorized as described above.
  5. EXPORT CONTROL.Customer  shall comply with all United States export control regulations, licensing or other legal requirements applicable to the Products or the transactions contemplated hereunder, including import regulations within the Territory. Customer shall not do business with any person or firm identified by the U.S. government as being denied the right to receive any U.S. product.

A. GOVERNING LAW; ARBITRATION; VENUE. This Agreement will be governed by and construed in accordance with the laws of the State of California, USA applicable to agreements entered into, and to be performed entirely, within California between California residents, without reference to conflict of law principles. The parties expressly exclude the application of the 1980 United Convention on Contracts for the International Sale of Goods if otherwise applicable. Any dispute or claim arising out of this Agreement will be resolved by binding arbitration in the city of San Jose and county of Santa Clara in accordance with the complex commercial litigation rules of the American Arbitration Association. The arbitrator will have the power to grant any form of relief, including preliminary and permanent injunctive relief, which a judge in California with jurisdiction could fashion, and judgment on any award may be entered in any court in California with jurisdiction. Nonetheless, the parties may seek temporary or permanent injunctive relief from any court in California with jurisdiction without breaching this Section or otherwise abridging the authority of the arbitrator.

Customer hereby consents to the exercise of jurisdiction by the court of California, in connection with any dispute arising out of this Agreement which is not capable of being submitted to arbitration.

B. SEVERABILITY. If any provision of this Agreement shall be declared void, invalid, or illegal, the validity or legality of all other provisions of the Agreement shall not be affected thereby.

C. ASSIGNABILITY Customer shall not assign or transfer this Agreement without ESP’s prior written consent, upon which this Agreement shall bind and inure to the benefit of the assigns. ESP may assign this Agreement to its affiliate upon written notice to Customer.

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