Terms & Conditions
TERMS OF SALE & CONDITIONS OF USE
IMPORTANT: Please read the following and the Privacy Statement before accessing and using this website.
Thank you for visiting https://ekkoforklifts.com. We hope that you will find this website helpful and informative.
The following are the terms and conditions ("Terms") that apply to and govern your use of this website ("Site") and the Terms of Sale in the purchase of products on and/or associated with this website. These Terms also incorporate the Privacy Statement. BY CHOOSING TO ACCESS AND USE THIS SITE, YOU ARE EXPRESSLY AGREEING TO BE LEGALLY BOUND BY THESE TERMS.
All quotations by Seller and orders made by Buyer for products are subject to these Terms and Conditions of Sale set forth herein. These Terms and Conditions of Sale supersede any other terms and conditions in any purchase order and other purported agreements or communications in any form from Buyer. Seller’s agreement to any additional or modified or substituted terms and conditions or agreements must be made affirmatively and in writing in a form other than as an acknowledgement of a purchase order to be effective. Seller’s acceptance of a purchase order by written acknowledgement or otherwise (even where such form of written acknowledgement purports to create or modify an agreement between Seller and Buyer) and/or Seller’s failure to object to any additional or conflicting terms and conditions contained in Buyer’s purchase order or other documents created by Buyer shall not be an acceptance of such additional or conflicting terms and conditions nor a waiver or modification of the provisions of this Agreement.
Exclusive Terms: These Terms exclusively govern your access and use of this Site.
Changes to Site: In order to improve its service to you, we reserve the right to make changes in the access, operation, and content of this Site at any time without notice. We also reserve the right to make changes in the Terms and Conditions and the Privacy Statement, so please check before each use for changes.
Typographical & Picture Errors: All data, including descriptions, specifications and pictures are best available at time item is added to the Site and may not accurately reflect final product. Pictures may also contain optional accessories. We use every care and caution when adding items to the Site and for presenting to you as accurately as we are able. Errors and omissions can occur from time to time. NOTE: BEFORE PLACING ORDERS - If you see any discrepancies, potentially incorrect information or have any other questions about the products for sale on this, please contact customer service to confirm via email at info@ekkoforklifts.com
Prices and availability are subject to change without prior notification: If order total or product availability differs from the web site you will be contacted to confirm your acceptance or cancelation of the quote or order. We reserve the right to contact customers to adjust pricing or cancel orders for errors we may make in entering information on the Site or if Ekko Material Handling has provided incorrect pricing or other information about products. It is our goal to provide you the best information about EKKO’s products on this site and we want to correct any incorrect information as quickly as practical. In the event that an EKKO product is mistakenly listed at an incorrect price, or with an incorrect image or incorrect description and specifications, we reserve the right to refuse or cancel any such orders or any such quotes placed for products listed at the incorrect price or with an incorrect image or incorrect description and specifications. We reserve the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is cancelled, we shall issue a credit to your credit card account in the amount of the incorrect price.
Product Suitability: Product information is provided for informational purposes only. It is the Buyer’s responsibility (and their affiliates who use/apply Ekko products) to select the proper products and to test those products at a level that is commensurate with the nature of the application. We do not employ designers or engineers, nor do we make product suggestions for any applications. Therefore, we are unable to recommend any product for any particular or general application. In fact, we are not involved in any way with the application.
Exclusion of Warranties/No Warranties Disclaimer: Buyer acknowledges that Seller is not the manufacturer of the products or goods sold. The implied warranties of merchantability and fitness for a particular purpose and all other warranties, express and implied, are excluded from this transaction and shall not apply to the goods sold. In no event shall Seller be liable to Buyer for indirect, special or consequential damages or for loss of anticipated profits on any claim of any kind resulting from any order hereunder.
Product Manufacturer’s Warranty
Payment Terms: Payment is due at the time of order including payment by Visa, MasterCard, Discovery, American Express, checks and wire transfers.
Orders and Acceptance: All orders are subject to acceptance by Seller. Unless otherwise agreed to in writing by Seller and Buyer, all sales transactions are expressly limited to the terms and conditions set forth below. ALL TERMS AND CONDITIONS CONTAINED IN ANY PURCHASE ORDERS OF BUYER OR OTHER DOCUMENTS SUBMITTED BY BUYER ARE EXPRESSLY REJECTED AND SHALL NOT BE BINDING ON SELLER UNLESS AGREED TO IN WRITING BY AN OFFICER OF SELLER. BUYER’S ACCEPTANCE OF SHIPMENT AND/OR PAYMENT FOR THE EQUIPMENT CONSTITUTES ACCEPTANCE OF SELLER’S TERMS AND CONDITIONS. NO WAIVER OF THESE TERMS AND CONDITIONS OR ACCEPTANCE OF OTHER TERMS AND CONDITIONS SHALL BE CONSTRUED FROM SELLER’S FAILURE TO OBJECT TO THE SAME.
ALL SALES ARE FINAL. EQUIPMENT CANNOT BE RETURNED WITHOUT SELLER’S PRIOR WRITTEN CONSENT.
2. Quotations: Published Prices and Pricing.
All quotations shall automatically expire (30) days after issuance, and are subject to withdrawal by notice within that period. Seller, at its sole discretion, may extend the effective date of quotations. Prices shown on published price lists and other literature issued by Seller do not represent unconditional offers to sell, and are subject to change without notice. Prices do not include costs or fees associated with installation or final on-site adjustments. Prices also do not include shipping charges. All prices are F.O.B. manufacturer's point of shipment, unless otherwise specifically set forth on the quotation or order acknowledgment. Prices stated are subject to change without notice. No discount will be allowed unless specifically set forth on the face side hereof. Until the purchase price and all other sums due are paid in full, Seller retains a security interest in the materials described on the face hereof (the "Equipment") and in all proceeds of said Equipment.
3. Cancellations: All order cancellations must be approved by Seller.
NOTE: Shipments that have been inspected and packaged are considered "shipped". Cancellations for shipped items are subject to an up to 20% restocking fees and cancellation and return fees by the carrier.
Custom, non-standard, large quantity orders, and some made-to-order products are non-cancelable and non-returnable. Seller, at its sole discretion, reserves the right to change its payment terms on all orders.
4. Returns: If you are not satisfied with a product, contact us within 30 days of receipt. A refund may be arranged excluding freight charges upon inspection. Returned merchandise must be shipped in original packaging, freight prepaid, unused, and in resalable condition, and are subject to 20% restocking fee. Seller will inspect all returns and reserves the right to refuse credits on damaged, misused or non-resalable items. Buyer is responsible for all freight charges and stocking fee where applicable, provided your return is complete with original packaging, all documentation, warranty cards, cables etc. EKKO Material Handling Equipment reserves the right to authorize product returns after 30 days have passed from the invoice date. If the product is accepted after this period, it is subject to a 20% restocking fee and credit will be issued toward future purchases only.
5. Taxes: Prices do not include federal, state, or local taxes, including sales, use, property, import/export, excise, VAT or similar tax payments. Seller shall bill as a separate invoice line item all such taxes and Buyer agrees to pay and/or reimburse Seller for any such applicable taxes.
6. Substitutions: Seller reserves the right to substitute the latest superseding design and manufactured equivalent Equipment, where interchangeability does not materially affect form, fit or function.
7. Order Changes and Cancellation:
(a) Changes requested by Buyer: Changes to orders are subject to Seller’s approval and acceptance. Buyer shall reimburse Seller for all additional costs and expenses related to any such change. Orders will not be subject to cancellation by Buyer, either in whole or in part, without the written consent of Seller, and then only under terms that will reimburse Seller for all costs incurred by it, including, without limitation, preparation costs, costs of purchased materials, engineering costs, total factory costs of the items produced up to the date of acceptance of cancellation including direct labor and overhead, cancellation charges from Seller’s subcontractors and sellers, any other expenses, and an amount equal to Seller’s customary profit, less refund, if any, actually received by Seller on any purchased items which can be returned to vendors.
(b) Changes by Seller: Seller reserves the right to change or cancel any order: 1) Whenever Seller deems said change necessary to comply with laws, regulations, or other mandatory authority; or 2) events require reallocation of production and/or delivery resources. Seller additionally reserves the right to change materials and/or design of Equipment.
8. Shipping: Equipment shall be shipped F.O.B. Title to & risk of loss/damage to the Equipment passes to Buyer upon delivery to the carrier. Buyer shall make claims for losses or damage directly with carrier. Seller reserves the right to apply its discretion regarding the manner and routing of shipments. Seller shall not be responsible for insuring shipments unless specifically requested by Buyer. Any insurance so requested shall be provided at Buyer's expense. If Seller is obligated to pay freight on shipments, Seller may opt to add to the price of Equipment any increase in freight paid by Seller arising after acceptance of Buyer's order may.
8.1 Packaging: Prices stated are based on Manufacturer's and Seller's standard packaging. Manufacturer and Seller reserve the right to package material in pallets, bulk or individual cartons. Packaging will be standard commercial package acceptable to commercial carrier. Special packaging will be used only when specified at Buyer’s cost.
8.2 Acceptance and Inspection: Upon Buyer’s receipt of shipment, Buyer shall immediately inspect the Equipment. Buyer must note damage/incompleteness of Equipment on the delivery receipt before signing for the Equipment. Unless Buyer provides written notice to Seller of any claim for incompleteness of or damage to the Equipment within 48 hours of receipt, such Equipment shall be deemed finally inspected, checked and accepted by Buyer.
8.3. Delivery/Access: All delivery/performance dates are approximate and shall not be deemed to represent fixed or guaranteed delivery dates. All such dates are contingent upon prompt receipt of all necessary information from Buyer regarding Equipment and/or Services ordered. Seller will use reasonable efforts to meet the indicated delivery/performance dates but shall not be held liable for any loss or damage caused by delay resulting from labor disputes, damage to facilities, failure of contractors, subcontractors, or suppliers to fulfill scheduled deliveries, or any other cause outside Seller’s reasonable control or causes which make Seller’s performance commercially impracticable. In the event of delivery delay caused or requested by Buyer, Seller will store & handle all Equipment ordered at Buyer’s risk and will invoice Buyer for the unpaid portion of the contract price plus storage, insurance & handling charges on or after the date on which the Equipment are ready for delivery. Buyer shall pay such bill within 30 days of the mailing date of the invoice.
SHIPPING (Cont.)- TITLE AND RISK OF LOSS
8.4 Shipping Location and delivery-requirements information: Buyer is responsible for the provision and accuracy of shipping-destination requirements information including: Zip Code, Location Type, Loading Dock/ Forklift Availability, Call Notification Requirements and Availability to receive delivery. If, at the time of delivery, shipping delivery requirements and information is different from the information provided by customer or has changed, customer is responsible for any and all additional delivery charges assessed based on those changes.
Note: Freight carriers reserve the right to assess additional fees to the customer in the event of inaccurate shipping location and delivery requirements information.
For example, if a customer indicated that he/she has a loading dock or forklift at the destination to receive delivery, but at the time of delivery he/she does not, then customer will be subject to additional re-delivery and lift gate fees. If a customer is not available when a delivery is made, but the customer did not indicate needing the Appointment Call requirement, then the customer will be subject to additional re-delivery fees.
In the event that a shipment was unable to be delivered due to customer inaccuracy regarding shipping location and delivery-requirements information, and the issue is not resolved in a timely manner, the customer, in addition to re-delivery fees, may also be subject to additional storage fees assessed by the freight carrier.
Freight class and weight changes can affect actual shipping price at time of shipment: All Best-way FOB quotes, are "quotes" and may not reflect actual shipping cost at time of shipment, and, therefore, are subject to change. Freight classes and weights are provided by product manufacturers and distributors and based on the National Motor Freight Classifications. We use tremendous care and caution when adding product shipping information to the Site. We use information directly from Ekko and present it to the customer as accurately as we are able. However, errors and omissions can and do occur from time to time. If an error or change is identified, we reserve the right to change the Best-way shipping price and the customer will be notified prior to shipping the products.
Freight classes are determined by the National Motor Freight Traffic Association and are applied to commodities by freight carriers, who reserve the right to reclassify commodities based on their characteristics on a per-shipment basis. This means that the actual cost of shipping can vary from Best-way Shipping quotes. According to the NMFTA "Commodities are grouped into one of 18 classes—from a low of class 50 to a high of class 500—based on an evaluation of four transportation characteristics: density, handling, stow ability and liability." The NMFTA continuously reviews the transportability of freight classes and has and will re-class commodities according to their characteristics. Shipping class re-classifications has and will directly affect Best-way shipping quotes.
8.5 Free Shipping: Free shipping is offered for "Dock-to-Dock" commercial locations with a loading dock or fork lift, within the contiguous 48 United States only and does NOT include Residential, Lift Gate Service, Military Base, Limited Access, Inside Delivery, or any other required services. Locations that require additional services are subject to extra charges. Buyer owns goods in transit. Risk of damage, loss and title for such items pass to buyer upon Manufacturer/Distributor’s delivery of items to the freight carrier, i.e., loaded for delivery & buyer files claims (if any) directly with the carrier.
Acceptance and Inspection Is the Buyer’s Responsibility: All items are inspected prior to delivery. Ownership of items, risk of damages and/or loss of items belong to Buyer once items have been inspected loaded and accepted for delivery by the freight carrier.
It is the Buyer’s responsibility to inspect all items (inside and outside of packaging) PRIOR to agreeing to receive items and PRIOR to signing delivery receipt.
Damaged Shipments, Risk of Loss: Freight Carriers will not accept claims if damage is not noted at the time of delivery on the delivery receipt. If damage has occurred, Buyer must note the extent of the damage on the delivery receipt and call the delivery company immediately.
9. Security Interest & Repossession: Until Seller is fully paid for Equipment shipped, Buyer will grant Seller a purchase money security interest in the Equipment. Equipment will remain personal property. Buyer shall execute & deliver to Seller security agreements & financing statements evidencing Seller’s security interest. Buyer authorizes Seller to file financing statements relating to the Equipment without Buyer’s signature as Seller deems appropriate. Buyer appoints Seller as Buyer’s attorney-in-fact for the limited purposes of executing financing statements in Buyer’s name & performing other acts Seller deems necessary to perfect its security interest & to preserve and protect the goods.
10. Default: Upon submitting this instrument to an attorney to collect past due payments or repossess the Equipment, Buyer shall reimburse Seller for attorney’s fees, court costs, & other expenses incurred by Seller to enforce the terms & conditions stated herein.
11. Warranty: (a) Limited Warranty Applied to Equipment. Seller warrants to Buyer that on the date of delivery to the carrier, the Equipment is free from defects in material and workmanship. Seller’s product specific Limited Warranty applies to the Equipment for a period indicated in said Limited Warranty.
(b) Buyer’s Exclusive Remedy: If the Equipment does not meet its warranty standard, Seller will apply the appropriate Limited Warranty (see part 13(a) above). Seller may, at its sole option, either: (1) repair or replace any defective Equipment; or (2) refund the amount received by Seller for defective Equipment, if, after the Equipment is returned to Seller, Seller determines repair or replacement is not feasible. The foregoing is contingent upon Seller receiving Buyer’s written notice in accordance with the terms of the appropriate Limited Warranty and, at Seller’s request, return of the defective Equipment (F.O.B. Seller’s point of shipment) at Buyer’s cost. The warranty set forth herein does not extend to any Equipment or Service (including Other Sellers’ product and service) which has been misused, modified, repaired, improperly installed or otherwise abused.
(c) Disclaimer of Implied Warranties: Sole Remedy. EXCEPT AS PROVIDED IN THIS SECTION, SELLER MAKES NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED. ALL WARRANTIES OF MERCHANTABILITY & FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXPRESSLY DISCLAIMED. THIS WARRANTY CONTAINS SELLER’S SOLE LIABILITY AND BUYER’S SOLE AND EXCLUSIVE REMEDIES AND IS EXPRESSLY IN LIEU OF ALL OTHER REMEDIES BASED IN LAW OR EQUITY
12. Intellectual Property/Drawings and Confidentiality: (a) All specifications, drawings, designs, data, information, ideas, methods, patterns and/or inventions made, conceived, developed, or acquired by Seller incident to procuring and/or carrying out an order shall vest in and remain the property of Seller. (b) Should it be necessary during the performance of an order for Seller to supply technical information to Buyer, then Buyer agrees (i) that the disclosure of such information is in confidence; (ii) such information is the sole and exclusive property of Seller and is subject to return upon demand; and (iii) such information is not to be used by Buyer, its employees or agents, nor copied or disclosed to third parties without the express written consent of Seller, except that prohibitions against disclosure shall not apply to information which is or becomes publicly available or is or becomes available to Buyer from a third party through no fault of Buyer. Similar undertakings shall exist on the part of Seller for confidential information received by Seller from Buyer.
13. Compliance with Standards: Buyer is solely responsible for identifying and complying with laws, regulations, ordinances, national standards incorporated into law or regulation, and all other authority applied to the Equipment where it is used.
14. Limitation of Liability: SELLER SHALL NOT BE LIABLE FOR ANY LOSS, CLAIM, EXPENSE OR DAMAGE CAUSED BY, CONTRIBUTED TO, OR ARISING OUT OF THE ACTS OR OMISSIONS OF BUYER OR THIRD PARTIES, WHETHER NEGLIGENT OR OTHERWISE. IN NO EVENT, SHALL SELLER’S LIABILITY FOR ANY CAUSE OF ACTION WHATSOEVER EXCEED THE COST OF THE EQUIPMENT GIVING RISE TO THE CLAIM, WHETHER BASED IN CONTRACT, WARRANTY, INDEMNITY OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. IN NO EVENT, SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER SUCH INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUES, PROFITS OR OPPORTUNITIES), WHETHER ARISING OUT OF OR AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
15. Force Majeure: Delivery dates are approximate and are subject to confirmation. Seller shall not be responsible for excusable delays, nor shall Buyer refuse to accept delivery because of any such delays. "Excusable delays" include, without limitation, delays resulting from accidents, acts of God, strikes, fire, floods, weather disturbances, acts of terrorism, governmental controls, inability to obtain materials from sellers, failure of materials correctly ordered by Seller to meet specifications, or other causes reasonably beyond Seller’s control, including any delay attributable to the carrier or third-party seller. If Buyer delays shipment, Buyer will accept title to the Equipment, the Equipment will be invoiced and payment in full nevertheless shall be due thirty (30) days after the date of such invoice and the Equipment shall be held at Buyer's risk and subject to reasonable storage charges. Any delays caused by Buyer will not extend the stated start-up or warranty period.
16. Waiver: No condoning, excusing or waiver by any party of any default, breach or nonobservance by any other party, at any time or times with respect to any covenants or conditions set forth herein shall operate as a waiver of that party's rights with respect to any continuing or subsequent default, breach or nonobservance, and no waiver shall be inferred from or implied by any failure to exercise any rights by the party having those rights. 20. Severability: Should any provision of these terms and conditions be declared invalid or unenforceable, the remaining provisions shall not be affected thereby, it being the intent of the parties that they would have executed the remaining portion without including any such part or portion which may for reason be declared invalid.
17. Registration Process, Authorized Access and Registered Users: Portions of this Site are exclusively reserved for the use of persons who have completed the registration process and who have been granted authorization for access. No other persons other than authorized users may access secured portions of this Site. Passwords and registration are non-transferable. You are solely responsible and liable to maintain the security and confidentiality of this password and accordingly, are liable for all activities on this Site that may arise from use of this password, even if such unauthorized users have not been specifically authorized by you or who have fraudulently or in error obtained this password. We cannot verify that any user accessing this site with a password is the individual authorized to do so, and therefore, through accessing this Site and providing a password, we are solely relying on your representation of authenticity. Should you become aware that your name, account, registration, or password is being used or attempted to be used on this site or otherwise by an unauthorized person, or in the event of any other possible misuse or fraud, it is your responsibility to inform Us immediately by calling 845-391-3500 so it may take appropriate action. We reserve the right in our sole judgment and discretion to terminate any user's access to and use of secured portions of the Site at any time, and without notice, for any reason, including but not limited to any possible or alleged misuse, fraud, or misconduct by any person accessing or using the Site under your user name and password.
18. Copyright Notice: You acknowledge that, unless otherwise specifically designated, Ekko Forklifts USA is the sole owner of all intellectual property rights to this Site and its contents, including but not limited to copyright protection for all content, including the design, layout, graphics, photos, format, and other visual elements of the Site.
19. User Conduct: For the convenience of our users, some areas on this Site may allow for interactive communication, some of which may be conducted in "real time". You agree not to post any content which is or may be, in whole or in part: false, unlawful, criminal, fraudulent, misleading, infringing, libelous, slanderous, defamatory, profane, racist, sexist, threatening, inflammatory, obscene, invasive of personal or privacy rights, advertising, promoting or soliciting for commercial purposes, containing any known viruses or bugs, or which is otherwise harmful, offensive, inappropriate, or unprofessional. We have no obligation to monitor, screen, filter or edit any information, communication, or content that is directly posted by or shared by users on the Site, however we may at our discretion from time-to-time monitor use of the Site, and we reserve the right to delete or edit any objectionable content posted or submitted by authorized users, terminate the user's access to the Site, deny future access, or take any other action we deem appropriate under the circumstances. Please report any such violations to info@ekkoforklifts.com We will handle any personally identifiable data or information posted by you in accordance with our Privacy Statement, however, any third-party liability or usage which may arise from your posting will be solely at your own risk. Information obtained through monitoring this Site may also be used for duly authorized law enforcement investigations. We also reserve the right to identify and investigate inquiries to the extent required to comply with applicable laws and regulations, including but not limited to U.S. export control laws and executive orders. We will have no liability for any content posted by users on any Site (including Secured Sites).
20. Compliance with all Laws: You agree that your use of this Site will be in compliance with all relevant and applicable laws and regulations, which shall include but not be limited to U.S. export control laws and executive orders. The information provided on and through this Site or any Secured Site may be deemed in some cases to be controlled technology and subject to the export control restrictions of the United States. IT IS YOUR OBLIGATION TO VERIFY AND COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS OF THE UNITED STATES PERTAINING TO ANY POTENTIAL ACCESS, TRANSFER AND USE OF ANY INFORMATION HEREIN WHICH MAY BE DEEMED TO BE "CONTROLLED" AS DEFINED BY LAW. This Site may not be accessed or used by any national of certain countries or groups against which the United States has instituted sanctions (including Iran, Libya, Iraq, Cuba, the Sudan, and members of some Angolan and Serbian groups), Specially Designated Nationals, and other proscribed persons who are listed on the Denied Parties list. Due to technical uncertainties preventing verification of the identity and ultimate point of access by any person attempting to access or use the Site, including any Secured Site, your access of the Site, including the presentment of any authorized user ID and password, constitutes your express representation that (1) the person attempting access thereunder is not a national of any such sanctioned country or group or a Specially Designated National, and (2) is not included on such Denied Parties list, and (3) that, if an Authorized User, you have not disclosed or provided such password and user ID to any such person for use under your registration. Users shall be fully liable and subject to prosecution to the full extent of the law for any violations of this paragraph, and SUCH USER HEREBY AGREES TO DEFEND, INDEMNIFY AND HOLD EKKO FORKLIFTS USA HARMLESS FROM AND AGAINST ANY AND ALL SUCH DAMAGES AND LIABILITY.
21. No Warranties Provided: The information on this Site is provided for general information purposes only. While we strive to provide timely, accurate and complete information, you may discover some inadvertent typographical, technical, factual, or other errors or omissions in the information provided. Please bring them to our attention at info@ekkoforklifts.com
Since such mistakes may occur EKKO FORKLIFTS USA MAKES NO GUARANTEES, WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, CONCERNING THE SECURITY, TIMELINESS, RELEVANCY, SUFFICIENCY, ACCURACY, RELIABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR COMPLETENESS OF ANY DATA, INFORMATION, OR SERVICES FURNISHED TO YOU ON OR THROUGH THIS SITE, OR CONCERNING THE INFORMATION YOU PROVIDE TO US. WE ARE PROVIDING THE INFORMATION AND OTHER CONTENT CONTAINED HEREIN ON AN "AS IS, WHERE IS, AS AVAILABLE" BASIS, AND ALL WARRANTIES (EXPRESS OR IMPLIED) ARE DISCLAIMED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
22. Site Security: So that this Site remains to the extent possible open and available to all users, we have mechanisms in place to identify unauthorized attempts to gain access to Secured Sites, upload or change information or any image, inject any harmful elements, or otherwise cause damage. Regardless, even though we strive to keep these mechanisms up to date, due to the technical uncertainties, we are unable to make any representation or warranty that the content, information, or links in this Site are secure and free of data-processing errors, technical glitches, operational problems, interruptions, errors, bugs, worms, viruses, unauthorized third-party access, or any other harmful elements. YOU REMAIN SOLELY RESPONSIBLE FOR THE SECURITY AND PROTECTION OF YOUR SYSTEMS WHEN USING THIS SITE. Unauthorized attempts to upload, insert, or change any information or image on this Site or cause harm are strictly prohibited and may be punishable to the full extent of the law, including the Computer Fraud and Abuse Act and the National Information Infrastructure Protection Act.
23. Outside Links: For your information or convenience, this Site may contain direct links or hyperlinks to websites that are maintained by third parties. When clicking on such a link, you are leaving this Site. Therefore, we have no control over, do not endorse, and are not liable for, the quality, operation, reliability, compliance with laws, ethics, business practices, nor content of such third-party websites, or for any product or service advertised or provided therein. Any transactions with such third parties, including provision of your personal information, are strictly at your own risk. We expressly disclaim all liability arising from your access of and for the content contained within or through any such third-party website.
24. Access Outside United States: If you are accessing this Site from outside the United States, you are doing so at your own risk, and you remain fully responsible and liable for familiarity and compliance with these Terms as well as with the laws, regulations, directives, codes, and rules of the United States, including its export compliance laws and regulations, as well those of the jurisdiction from which you are accessing the Site, and any other applicable jurisdiction which may be involved in the access, transmission, routing, receipt, disclosure, storage or use of information on this Site, or any commercial transactions conducted on or through this Site.
25. Privacy: The use of your personal information given to this website during your visit is governed by our Privacy Statement, which is posted on this Site and incorporated into these terms
26. LIMITATION OF LIABILITY AND INDEMNIFICATION: Ekko Forklifts USA CONDUCTS AND PROCESSES ALL TRANSACTIONS VIA THIS WEBSITE. YOU AGREE THAT IT AND ITS AFFILIATES AND DIVISIONS, CUSTOMERS, PARTNERS, AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, CONTRACTORS, VENDORS, SUPPLIERS, LICENSORS, ASSIGNEES, SUCCESSORS, INSURERS AND AGENTS, ARE NOT LIABLE IN ANY RESPECT FOR ANY DAMAGES (INCLUDING FOR ANY SPECIAL, INDIRECT, ECONOMIC, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES) OR LOSS OF ANY NATURE WHICH MAY OCCUR AS A RESULT OF YOUR ACCESS & USE OF THIS SITE, AND ANY PURCHASE MADE WITH EKKO FORKLIFTS USA.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS EKKO FORKLIFTS USA AND ITS AFFILIATES AND DIVISIONS, ITS CUSTOMERS AND JOINT VENTURE PARTNERS, AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, CONTRACTORS, VENDORS, ASSIGNEES, AND AGENTS, FOR ANY COSTS, CLAIMS, DAMAGES, LOSSES, OR OTHER LIABILITIES ARISING FROM YOUR PURCHASE WITH EKKO FORKLIFTS USA AND YOUR ACCESS AND USE OF THE SITE IN BREACH OF THESE TERMS OR IN VIOLATION OF LAW.
SHOULD THE ABOVE PROVISIONS BE HELD TO BE UNENFORCEABLE FOR ANY REASON, IN WHOLE OR IN PART, COMPANY'S AGGREGATE LIABILITY TO YOU FOR ANY REASON CONNECTED TO YOUR PURCHASE WITH EKKO FORKLIFTS USA AND YOUR USE OF THIS SITE WILL IN NO EVENT EXCEED THE SUM OF $100.00. ALL OTHER TERMS AND CONDITIONS HEREIN WILL REMAIN IN EFFECT IN THE EVENT ANY PROVISION SHOULD BE FOUND UNENFORCEABLE.
Applicable Law and Dispute Resolution: You agree that these Terms, including placing orders and refunds will be interpreted under the laws of the State of New Jersey, regardless of any conflicts of laws rules, and regardless of the laws of any other jurisdiction which may be asserted. Any dispute or claim which you may have ("Claim") arising from your access or use of the Site shall be first submitted in writing to EKKO FORKLIFTS USA within one month (30 days) from the occurrence of the event upon which such Claim is alleged to be based, or such Claim shall be deemed waived. Any Claim which has been properly submitted to EKKO FORKLIFTS USA which has not been resolved within a reasonable period time not to exceed six (6) months may be submitted to binding arbitration as an exclusive alternative to litigation. YOU EXPRESSLY WAIVE ANY RIGHT TO BRING ANY LITIGATION IN ANY JURISDICTION AGAINST EKKO FORKLIFTS USA BASED ON YOUR ACCESS OR USE OF THIS SITE OR UNDER THESE TERMS. ANY ARBITRATION WILL BE ADMINESTERED BY THE AMERICAN ARBITRATION ASSOCIATION IN VOORHEES, NEW JERSEY, IN ACCORDANCE WITH ITS APPLICABLE COMMERCIAL RULES AND PROCEDURES. ANY ARBITRAL AWARD WILL SPECIFICALLY EXCLUDE ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES.
27. Entire Agreement/Amendment: Seller and Buyer agree that the terms and conditions set forth herein constitute their complete and exclusive agreement regarding the subject matter of Buyer’s order and supersede any prior communications, representations or agreements of the parties, whether oral or written and cannot be altered, amended, or modified except in writing executed by an authorized representative of each party.
28. Assignability: Neither party may sell, assign, or transfer its rights, duties, or obligations under this Agreement without the prior written consent of the other; provided, however, that Seller reserves the right to (a) assign its rights, duties and obligations to any party purchasing substantially all of Seller’ assets and (b) subcontract the manufacture of Equipment. To the extent that assignment is permitted, this Agreement shall inure to the benefit of and be binding upon each party and its permitted successors and assigns.
29. Headings: Captions or headings are inserted only for convenience and shall not be construed as part of the foregoing terms and conditions or as a limitation upon the scope of the section to which they refer.
30. Buyer’s Default: If Buyer defaults in any payment of performance hereunder or becomes subject to any insolvency, receivership or bankruptcy proceeding or makes an assignment for the benefit of creditors or, without Seller’s consent, voluntarily or involuntarily sells, transfers, leases or permits any lien or attachment on the Equipment and/or parts delivered hereunder, Seller may terminate the order with Buyer and treat all amounts then or thereafter that Buyer owes hereunder to be immediately due and payable (subject only to credits required by law) or Seller, at its option, without prejudice to any other lawful remedies, may defer delivery or cancel any order then outstanding or repossess said equipment and/or parts by any means available by law. Seller shall be entitled to receive reimbursement for its reasonable and proper cancellation charges, plus, in any proceeding or action relating to a default by Buyer, Seller shall be reimbursed by Buyer for Seller’s attorney's fees and cost incurred by Seller in respect thereof.
31. Assignability: No assignment of this order by Buyer without the consent of Seller in writing shall be binding. Seller reserves the right to (a) assign its rights, duties and obligations to any party purchasing substantially all of Seller assets and (b) subcontract the manufacture of Equipment. To the extent that assignment is permitted, this Agreement shall inure to the benefit of and be binding upon each party and its permitted successors and assigns.
32. Errors: Any clerical errors, typos are subject to correction.
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Effective May 2021
