Terms of sales
ARTICLE 1 - APPLICABILITY
(a) These terms and conditions of sale (these “Terms”) govern the sale of the Products (“Products”) by Flowstop Industries Inc. a Delaware corporation (“Seller” or “Flowstop”) to any purchaser (“Buyer”) (each a “Party” and together, the “Parties”). The accompanying signed quotation (the “Sales Confirmation”), any invoice for the Products, 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.
(b) Notwithstanding the foregoing, if a written contract signed by both Parties is in effect covering the sale of the Products, that expressly states it supersedes the Agreement, the provisions of that contract shall prevail solely to the extent of any inconsistency with the Agreement. In all other cases, the Agreement shall govern.
(c) These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend the Agreement.
ARTICLE 2 - PRODUCTS
All Products are custom-made to order. The following terms apply to the production process:
(a) Measurement Requirements. The Buyer is responsible for accurately measuring the dimensions of each opening to within 3/8 inch (0.375 inches). Precise measurements are essential to ensure the proper fit and functionality of the Product. At Buyer’s request, Seller’s authorized sales representatives may provide measurements for Buyer’s convenience. Buyer acknowledges and agrees that any measurements taken by Seller’s representatives are based solely on information available at the site at the time and do not guarantee proper fit or performance. Buyer remains solely responsible for verifying and approving all measurements prior to Production. Seller shall not be liable for any errors, omissions, or inaccuracies in such measurements.
(b) Verification of Installation Conditions. The Buyer is responsible for verifying the installation conditions at the site, including, without limitation:
(i) Confirming that the available height for each opening is sufficient.
(iii) Identifying potential obstacles such as door handles, doorbells, or other fixtures that may impede installation.
(iii) Confirming that the available height are appropriate in light of historical or anticipated flood levels in the surrounding area.
Seller shall have no liability for delays, additional costs, or performance issues arising from inadequate or inaccurate site conditions.
(c) Sales Confirmation Review and Validation. The Buyer shall review and validate the Sales Confirmation, which includes the following details:
(i) The total number of openings in the primary residence and any ancillary structures; and
(ii) The quantities and dimensions of the materials to be produced correspond to the openings requiring protection.
Buyer’s approval of the Sales Confirmation shall be deemed conclusive evidence that all quantities, dimensions, and specifications are accurate and sufficient for Buyer’s intended use.
(d) Submission of Signed Sales Confirmation and Payment. To confirm an order, the Buyer must return the signed Sales Confirmation and the corresponding invoice payment. Orders are not binding on the Seller until both are received.
(e) Production and Sales Confirmation. Production will commence only after the signed Sales Confirmation and payment of the corresponding invoice are received by Flowstop. The Products will be manufactured strictly in accordance with the specifications outlined in the validated Sales Confirmation.
(f) Modification or Cancellation. Upon commencement of the production of Products pursuant to a Sales Confirmation, the Buyer may not cancel or modify the order without Seller’s prior written consent, and Buyer shall be responsible for all costs and losses incurred by the Seller due to such cancellation or modification.
ARTICLE 3 - SHIPPING & DELIVERY
(a) Seller shall make delivery in accordance with the terms on the face of the Sales Confirmation
(b) Seller shall make commercially reasonable efforts to deliver the Products within 90 days after receipt of Buyer’s signed Sales Confirmation and corresponding payment. Delivery dates are estimates only. Seller shall arrange and pay for transport and shall bear all risks of loss or damage during transit. However, Seller shall not be liable for any losses, damages or expenses resulting from resulting from delayed delivery, whether direct, indirect, consequential, or incidental, arising from causes beyond its reasonable control, including those caused by a Force Majeure Event, as defined in these Terms.
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(c) Unless otherwise agreed in writing by the Parties, Seller shall deliver the Products to the address listed in the Sales Confirmation (the “Delivery Address”) using Seller’s standard methods for packaging and shipping such Products. Buyer shall take delivery of the Products at the Delivery Address and shall coordinate with Seller to facilitate timely delivery.
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(d) Seller may, in its sole discretion, and without liability or penalty, make one or more partial shipments of Products to Buyer, each of which shall be considered a separate delivery under these Terms.
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(e) If for any reason Buyer fails to accept delivery of any of the Products, or if Seller is unable to deliver the Products at the Delivery Address because Buyer has not provided appropriate instructions, documents, or authorizations: (i) risk of loss shall pass to Buyer at the time Flowstop is ready to deliver; (ii) the Products shall be deemed to have been delivered for all purposes; and (iii) Seller may, at its option, store the Products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
ARTICLE 4 -
ACCESSORIES & INSTRUCTIONS
(a) Inflation Pump. Each set of one to five Products contains one manual inflation pump.
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(b) User Manual. Each Product includes a User Manual.
(c) Online Tutorials. Buyers can access online video tutorials on the Flowstop website under the "Tutorials & FAQ" section.
(d) Disclaimer. The User Manual, tutorials, and any other instructional materials are provided for guidance only. Buyer is solely responsible for proper use of the Products. Seller makes no warranty and assumes no liability arising from the use of these materials.
ARTICLE 5 -
STORAGE REQUIREMENTS
(a) The Buyer shall store all FlowStop barriers in a location where the temperature does not exceed 140 degrees Fahrenheit. Exposure to temperatures above this threshold may adversely affect the materials, performance, and warranty of the Products. FlowStop barriers should be stored in a dry place, away from direct sunlight and heat sources. Long term outdoor storage is strictly prohibited. Failure to adhere to these storage conditions may result in the loss of warranty coverage and increased risk of damage, for which the Seller shall bear no liability.
(b) The Buyer remains solely responsible for ensuring compliance with these storage requirements at all times. The Seller shall not be liable for any defects, damages, or nonconformance resulting from improper storage conditions.
ARTICLE 6 - TITLE & RISK OF LOSS
Title and risk of loss pass to the Buyer upon delivery of the Products at the Delivery Address, or if Buyer fails to accept delivery or does not provide appropriate instructions, documentation, or authorizations, at the time Seller is ready to deliver the Products. In such cases, the Products shall be deemed delivered for all purposes, and Buyer shall bear all associated risks, including loss, damage, storage, and insurance costs
ARTICLE 7 - AMENDMENT & MODIFICATION
Seller may update or amend these Terms from time to time, for example to reflect changes in its business, products, services, or applicable laws. Where the changes are material, Seller will provide notice by posting the updated terms on our website. The updated Terms and Conditions will apply to all orders placed after the effective date specified in the notice. Orders for Products placed before the effective date of any update will continue to be governed by the Terms in place at the time the Products were initially purchased.
ARTICLE 8 - INSPECTION & REJECTION OF NONCONFORMING PRODUCTS
(a) Buyer shall inspect and test the Products within 30 days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Products” means only the following: (i) the Product delivered does not match the Product type, model, quantity, or specifications set forth in the Sales Confirmation; or (ii) the Product fails to hold its charge when installed, used, and inflated in accordance with the Product’s User Manual for three (3) consecutive days.
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(b) If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the Price for such Nonconforming Products, including any reasonable shipping and handling expenses incurred by Buyer in connection therewith.
Buyer shall return the Nonconforming Products to Seller’s facility in Tampa, Florida, using a shipping method reasonably approved by Seller, at Seller’s expense and with risk of loss borne by Seller during transit. If Seller elects to replace the Nonconforming Products, Seller shall, upon receipt of Buyer’s returned shipment, ship to Buyer, deliver the replacement Products to Buyer at the Delivery Address, at Seller’s expense and risk of loss.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 8(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided under Section 8(b), all sales of Products to Buyer are final, and Buyer has no right to return Products purchased under the Agreement to Seller.
ARTICLE 9 - PRICE
(a) Buyer shall purchase the Products from Seller at the price (the “Price”) listed in the Sales Confirmation​
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(b) All Prices are exclusive of all sales, use, and excise taxes and any other similar taxes, duties, or charges imposed by any governmental authority on amounts payable by the Buyer, except for import duties, customs charges, or other governmental fees related to the importation of the Products, which are included in the Price and are the responsibility of the Seller. 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.
ARTICLE 10 - PAYMENT TERMS
(a) Unless otherwise stated on the Sales Confirmation, Buyer shall pay all invoiced amounts due to Seller at the same time it returns the signed Sales Confirmation. Buyer shall make all payments hereunder through an authorized payment processing third-party provider.
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(b) All amounts not paid when due per the terms of the Sales Confirmation shall accrue interest at the lesser of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
(c) 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.
ARTICLE 11 - LIMITED WARRANTY
(a) Seller warrants to Buyer that for a period of 5 years from the date of shipment of the Products (”Warranty Period”), such Products will materially conform to their specifications as set forth in the Sales Confirmation, provided the Products are installed, used, and inflated in accordance with the Product’s User Manual. For purposes of this limited warranty, material conformity means (i) the Products maintain their shape and size while inflated; and (ii) the Products retain a pressure of 15 psi over a continuous period of thirty (30) days,​
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(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (iii) 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.
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(c) Products manufactured by a third Party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with the Products. Third Party Products are not covered by the warranty in Section 11(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) 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.
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(d) The Seller shall not be liable for a breach of the warranty set forth in Section 11(a) unless: (i) Buyer gives written notice describing the defect to Seller within 14 days of the time when Buyer discovers or reasonably should have discovered the defect; (ii) Seller, including an authorized representative thereof, is given a reasonable opportunity after receiving the notice to examine the Products and Buyer (if so requested by Seller) returns such Products to Seller’s place of business at Seller’s cost for inspection; and (iii) Seller reasonably verifies that the Products are defective.
(e) The Seller shall not be liable for a breach of the warranty set forth in Section 11(a) if: (i) Buyer makes any further use of such Products after giving such notice; (ii) the defect arises because Buyer failed to follow instructions regarding installation, storage, use or maintenance of the Products, as provided by Seller in the User Manual; or (iii) Buyer alters or repairs such Products without the prior written consent of Seller. Buyer expressly acknowledges that the Products are designed to provide flood protection only when used, installed, and maintained in accordance with the Product’s User Manual. Except as expressly provided in Section 11(a) (Limited Warranty), the Seller shall not be liable for any damage, flooding, or loss arising from misuse, punctures, physical damage, unauthorized modifications, or any other external causes beyond Seller’s control.
(f) Subject to Section 11(d) and Section 11(e) above, Seller may in its sole discretion, either: (i) repair or replace defective Products (or the defective part(s) thereof) or (ii) credit or refund the Price of such Product(s) to Buyer.
(g) THE REMEDIES SET FORTH IN SECTION 11(F) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(A).
ARTICLE 12 - LIMITATION OF LIABILITY
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER 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 SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S 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 SELLER FOR THE PRODUCTS SOLD HEREUNDER.
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(c) The limitation of liability set forth in Section 12(b) above shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.
ARTICLE 13 - AUTHORIZED REPRESENTATIONS
Authorized Representations. Buyer acknowledges that all statements, representations, and guarantees regarding the Products are set forth exclusively in the Company’s User Manual and the Agreement. No employee, agent, contractor, distributor, or salesperson acting on behalf of the Company has authority to make any representations, warranties, or promises regarding the Products beyond those expressly set forth in such documents. Buyer agrees that the Company shall not be liable for any statements, promises, or representations made by any such individual that exceed or conflict with the official Product specifications, instructions, or warranties.
ARTICLE 14 - COMPLIANCE WITH LAW
Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Agreement.
ARTICLE 15 - TERMINATION
In addition to any remedies that may be provided under these Terms, Seller may terminate the Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under the Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; (iii) becomes insolvent, files for bankruptcy, or has a bankruptcy petition filed against it that is not dismissed within 60 days; or (iv) ceases or threatens to cease business operations.
ARTICLE 16 - WAIVER
No waiver by Seller of any of the provisions of the 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 the Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
ARTICLE 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, Seller’s 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 the Agreement shall be considered “Confidential Information” solely for the use of performing the Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Confidential Information does not include information (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief in the event of any actual or threatened breach of this Section.
Buyer’s obligations under this Section shall survive for a period of five (5) years following termination or expiration of the Agreement for any reason; provided, however, that with respect to any Confidential Information constituting a trade secret under applicable law, such obligations shall survive for so long as such Confidential Information remains a trade secret
ARTICLE 18 -
FORCE MAJEURE
The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller 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, lockouts, widespread 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 (generally, a “Force Majeure Event”), provided that, if the event in question continues for a continuous period in excess of 60 days, Buyer shall be entitled to give notice in writing to Seller to terminate the Agreement.
ARTICLE 19 - ASSIGNMENT; NO BENEFICIARIES
Buyer shall not assign any of its rights or delegate any of its obligations under the Agreement 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 the Agreement. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, and nothing herein grants any rights or remedies to any other person or entity.
ARTICLE 20 - GOVERNING LAW
All matters arising out of or relating to the Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware.
ARTICLE 21 -
SUBMISSION TO JURISDICTION
Any legal suit, action or proceeding arising out of or relating to the Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Delaware in each case located in the City of Wilmington and County of New Castle, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
ARTICLE 22 - NOTICES
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the Party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), certified or registered mail (in each case, return receipt requested, postage prepaid), or email, provided that sender does not receive a delivery failure notification. Except as otherwise provided in the 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.
ARTICLE 23 - SEVERABILITY
If any term or provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
ARTICLE 24 - SURVIVAL
Provisions of the Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.