Terms and Conditions of Sale

Virfex, INC

Terms and Conditions of Sale

Version Date: November 16, 2020

  1. General. All products and services offered for sale by Virfex, INC (“Virfex”) are sold subject to acceptance of the terms and conditions stated herein (the “Agreement”), unless a Distribution Agreement, Sales Agreement, Master Purchase Agreement, or similar signed Agreement exists between Virfex and the original buyer (“Buyer”) of a Virfex product or service, in which case the terms of that other agreement shall take precedence over any similar or contradictory terms contained herein, and are incorporated herein by reference.  Any order placed by Buyer shall be deemed an acceptance of an offer to sell by Virfex under these terms and conditions, and any proposal by Buyer, whether contained on Buyer’s purchase order or any document submitted by Buyer, for additional or different terms, or any attempt by Buyer to vary in any degree any of these terms and conditions is hereby objected to and rejected.
  2. Prices, Taxes, and Payment; Remedies. Virfex reserves the right to change the prices and specification for its products at any time without notice.  Product prices will be set out in a separate price list, which may be updated by Virfex from time to time and for the purpose of determining the price to be paid by Buyer to Virfex in respect of an order.  Any tax, duty, custom, or other fee of any nature imposed upon this transaction by any federal, state, or local government authority shall be paid by Buyer in addition to the price quoted or invoiced.  In the event Virfex is required to prepay any such tax, Buyer will reimburse Virfex for such amounts.  Payment terms shall be net thirty (30) days from the date of delivery (with approved credit), without any right of set-off.  In the event Buyer’s credit is not approved by Virfex, Buyer shall pay for each purchase of product by prepaid wire transfer or such other terms as Virfex shall provide from time to time.  Invoices not paid in full when due will incur interest at a rate of one and one-half percent (1.5%) per month finance charge assessed against the unpaid balance from the date of invoice until the date of payment.  Virfex may also refuse to sell to any person or company until overdue accounts are paid in full.  In the event of litigation or arbitration arising out of or relating in any way to this Agreement or any Virfex sale of products to a Buyer, Virfex shall be entitled to an award of its reasonable attorneys’ fees and costs.  Under no circumstances shall Buyer be entitled to any award of attorneys’ fees or costs.
  3. Purchase Orders. Buyer shall order product via electronic or written purchase order to Virfex.  Each purchase order shall specify the purchase order number, order date, Buyer name and address, shipping method, shipping name and address, customer item number, Virfex item number, description of item, Buyer requested delivery date, quantity, unit price, total item price, and total purchase order price.  All orders must be placed in batch quantities, as stipulated by Virfex.  Any orders not placed in specific batch quantities will be charged a per unit fee to satisfy batch quantity in full.  Virfex may reject any such order in whole or in part, all in its sole discretion.
  4. Delivery and Shipment. Virfex will make every effort to ship the products or provide the services hereunder in accordance with the requested delivery date, provided that Virfex accepts no liability for any losses or for general, incidental, special or consequential damages arising out of delays in, or failures of, delivery.  All requests for expedited delivery shall be subject to additional fees at Virfex’s discretion.
  5. Risk and Title of Shipments. Risk of loss and title in any shipment of the products shall pass to Buyer on an FOB (Incoterms 2020) basis (for shipments by vessel) or EXW (Incoterms 200) basis from Virfex’s facilities.  All shipment costs shall be paid by Buyer, and if prepaid by Virfex, the amount thereof shall be reimbursed to Virfex.
  6. Exports. Buyer agrees to comply fully with all applicable laws and regulations of Buyer’s country and of the United States pertaining to the export of any hardware, software, defense service, information or technical data provided by, through or with the cooperation of Buyer in the performance of work under any order subject to these terms and conditions.  Any order subject to these terms and conditions may involve information or items that are subject to the International Traffic in Arms Regulations (ITAR) or Export Administration Regulations (EAR) and that may not be released to “Foreign Persons” inside or outside the United States without the proper export authority.  The ITAR defines a “Foreign Person” as any person who is not a U.S. citizen, a lawful permanent resident as defined by 8 USC 1101(a)(20), or a protected individual as defined by 8 USC 1324b(a)(3).  “Foreign Person” is also defined as a corporation, a business, an association, a partnership, or any other entity that is not incorporated or organized to do business in the United States and as international organizations, foreign governments, and any agency or subdivision of foreign governments (e.g., diplomatic missions).  Buyer further agrees that it will not export or re-export, directly or indirectly, any hardware, software, defense service, information or technical data provided by, through or with the cooperation of the Seller to any “Foreign Person”, including persons employed by or associated with, or under contract with the Buyer or Buyer’s lower-tier suppliers without the prior written consent of the Seller and without first obtaining any required export license or other approval. In addition, should Buyer participate in the performance of this Order at Seller’s facilities, Buyer shall inform Seller in advance in writing of the country of citizenship (or countries, in the case of dual citizenship) of each Foreign Person employee, agent, or representative of Buyer or of Buyer’s suppliers prior to such person being allowed access to Seller’s facilities. The Foreign Person employees, agents, or representatives of Buyer or Buyer’s suppliers shall not participate in the performance of any work under any order subject to these terms and conditions at Seller’s facilities without Seller’s written consent.  Buyer shall comply with the registration requirements of the International Traffic in Arms Regulations at 22 CFR §122.1 and elsewhere, as applicable.  Buyer shall indemnify and hold Seller harmless against all claims, demands, damages, costs, fines, penalties, attorneys’ fees, and other expenses arising or resulting from Buyer’s failure to comply with this clause.
  7. Compliance with Laws. If so permitted by Virfex, Buyer shall be responsible for obtaining any necessary import licenses or permits necessary for entry of the product into the country of the shipping destination and for any and all customs duties, clearance charges, taxes, brokers’ fees and other amounts payable in connection with any importation of the product.  Notwithstanding any other provision of this Agreement, Virfex shall not be required to honor any purchase order if such performance will or is likely to result in a breach of any law or obligation.  Buyer shall comply with 1) all applicable laws, rules, and regulations, including but not limited to the International Traffic in Arms Regulations (ITAR), 2) all terms and conditions of this Agreement, and 3) appropriate ethical standards.  
  8. Inspection. Buyer shall be responsible for inspecting all products shipped hereunder prior to acceptance, provided that if Buyer shall not have given Virfex written notice of rejection within 20 days following shipment to Buyer, the products shall be deemed to have been accepted by Buyer.
  9. Warranty. The products shall be covered by the then-applicable Virfex express limited warranty issued from time to time by Virfex, as applicable to the relevant product, which is incorporated herein in its entirety by reference.  Any prospective Buyer should review this warranty before purchasing any Virfex product or service.  The current version of this warranty is entitled “Express Limited Warranty, Limitation and Release of Liability, and Assumption of the Risk (“Warranty”), dated November 2020.  The Warranty is the sole and exclusive warranty made by Virfex with respect to its products. The express limited warranty does not cover defects or damage caused to product by Buyer or any third party, or any product that has been purposefully modified in any way by Buyer.  As set forth in the Warranty:  VIRFEX MAKES NO OTHER WARRANTIES – EXPRESS, IMPLIED, OR STATUTORY – INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, OR NON-INFRINGEMENT.  Additionally:  FAILURE TO CLOSELY FOLLOW ALL WARNINGS AND INSTRUCTIONS WILL VOID ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY BALLISTIC PERFORMANCE WARRANTY AND COULD LEAD TO SERIOUS INJURY OR DEATH.
  10. Returned Goods. Any request to return products will be governed by the applicable Virfex express limited warranty issued from time to time by Virfex.  A Return Materials Authorization (“RMA”) number must be obtained from Virfex, under the terms and conditions laid out in the Warranty or as the Buyer is otherwise advised by Virfex, prior to returning any product. Any approved RMA is subject to a restocking fee at Virfex’s discretion.  Return shipment costs shall be paid by the Buyer.
  11. Cancellation Prior to Shipment. In the event Buyer requests that an order for products or services which it has placed with Virfex be cancelled prior to shipment, and with which request Virfex agrees, Buyer shall be liable to Virfex for all costs incurred by Virfex as a result of such cancellation, including but not limited to, cost of any finished goods or work in process and the raw materials thereof, cancellation costs to suppliers and unreimbursed advances on goods, if any, together with any specifically identifiable incidental and consequential expenses.
  12. Resale. Buyer represents and warrants that its purchase of any products is for the purpose of sales to or use by customers previously approved by Virfex.  Buyer shall not make any statements as to the quality or manufacture of the product or make any promises or guarantees with reference to the product other than those expressly set forth in any promotional material supplied by Virfex or as otherwise approved by Virfex.  Buyer agrees that any use of Virfex’s logos, trademarks or trade names must be expressly authorized in writing by Virfex prior to usage.  If such authorization is given, Buyer agrees to abide by all terms of Virfex’s brand guidelines.
  13. Governing Law. This Agreement shall be governed by the laws of The Commonwealth of Massachusetts (a/k/a the State of Massachusetts), U.S.A., without giving effect to any conflict of law provision that would cause the application of the laws of any other jurisdiction.  Both parties disclaim the application of the UN Convention on Contracts for the International Sale of Goods. Disputes relating to this Agreement will be resolved exclusively in the relevant courts in Boston, Massachusetts, and the parties to this Agreement hereby expressly consent to jurisdiction and venue in any such court.
  14. Limitation of Liability. In no event shall Virfex (including its affiliates, related companies, and subsidiaries) be liable for anticipated or lost profits or for special, punitive, indirect, incidental, or consequential damages.  Virfex’s total liability for any claim of any kind whatsoever for loss or damage arising out of or in connection with or resulting from this Agreement or from the performance or breach thereof shall in no case exceed the price allocable to the products or services which give rise to claim.
  15. Confidentiality. “Confidential Information” as used in these terms shall mean any and all confidential or proprietary knowledge, data, or information, in any form whatsoever, whether provided by either party prior to the execution of this Agreement or subsequently.  During the course of business transactions and at all times thereafter, each party and its representatives will hold and maintain the other party’s Confidential Information strictly confidential, and will protect the other party’s confidential information from unauthorized disclosure or dissemination to, and use by, any third party without the prior written consent of the owner.
  16. Assignment. Buyer may not assign its rights or its obligations under this Agreement without the written consent of Virfex.  Any such purported assignment without the written consent of Virfex shall be null and void and of no legal effect.
  17. Force Majeure. Virfex’s performance shall be excused or its time for performance extended, in Virfex’s discretion, in the event its performance is prevented or delayed by any of the following:  strikes; accidents; fire; lightning; earthquake; enemy action; unusually adverse weather; act of God or similar catastrophe; disease; pandemic (including the ongoing Coronavirus/COVID-19 pandemic); epidemic; health emergencies; quarantine; travel restrictions; social distancing advisory; unavailability (with the exercise of due diligence) of labor and/or materials, including but not limited to unavailability as a result of any public health emergency, epidemic or pandemic; any governmental restrictions in respect of labor or materials in connection with any public health emergency, epidemic or pandemic;  any governmental restrictions with respect to labor or materials; any declaration of a state of emergency by any governmental entity, including but not limited to any state or territory of the United States, the United States federal government, or any other national or local government; actual or potential impacts of exposure to concealed conditions or hazardous materials; governmental delays not due to fault of Virfex or anyone else for whom Virfex is responsible; or any other matter beyond Virfex’s reasonable control.  Virfex shall make reasonable efforts to timely notify Buyer in writing upon discovery or knowledge of any facts that give rise to Virfex’s invocation of this Paragraph 17.
  18. Indemnification. Buyer agrees, at its own cost, to indemnify, defend and hold harmless Virfex, its affiliates, related companies and respective officers, directors, employees, and agents from and against all actions, proceedings, losses, damages, liabilities, claims, costs and expenses, including without limitation fines, penalties, legal and other professional fees and expenses, arising out of or resulting from acts or omissions or deemed acts or omissions of Buyer, including without limitation the sale of products to Buyer’s customers or Buyer’s violation of any laws, regulations, or orders of any governmental body whatsoever, including but not limited to acts and omissions related to violations of Paragraphs 6 or 7 above.
  19. General Provisions. The failure of Virfex to enforce at any time any of the provisions of this Agreement, to exercise any election or option provided herein, or to require at any time performance by Buyer of any of the provisions herewith shall in no way be constructed to be a waiver of any such provision.  This Agreement contains the complete and exclusive statement of the agreement between the parties in connection with the subject products and/or services and supersedes any previous understandings, communications, commitments, or agreements, oral or written.   With respect to the terms, conditions or performance of this Agreement the parties are independent contractors; neither is an agent or employee of the other or has any authority to assume or create any obligation or liability of any kind on behalf of the other.  Any provision of this Agreement that is invalid or unenforceable under applicable laws with respect to a particular party or circumstance will be served from this Agreement with respect to such party or circumstance without invalidating the remainder of this Agreement or the application of such provision to other persons or circumstances. The headings used in this Agreement are for organizational purposes only and have no legal effect.

 

By purchasing from Virfex, you agree to be bound by these terms and conditions (“Terms & Conditions”); furthermore, you represent, warrant, and confirm the following:

-  You are at least 18 years of age and the age of majority in your state, province, or territory of residence at the time of purchase;

-  You are not a felon;

-  You are not legally barred from purchasing, possessing, or using the item(s) purchased;

-  You are legally allowed to possess and use the item(s) in your state;

-  Your purchase does not violate any local, state, or federal laws;

-  You are not purchasing the item(s) for criminal or amoral purposes;

-  You will only use the item(s) purchased for lawful purposes;

-  You are purchasing the item(s) on your own behalf and not on behalf someone else in order to avoid complying with these Terms and Conditions;

-  You assume all risk of use (or misuse) of the item(s) purchased;

-  You understand that body armor is not bullet proof—IT IS ONLY BULLET RESISTANT, and if a bullet strikes you there is always a risk you will be injured or killed; and that plate carriers sold by Virfex are made from NON-ballistic material.

- You are smart enough to know better than to test body armor by wearing it and being shot with a firearm--any video submitted to us showing such behavior will not be promoted in any way, and, if posted publicly (e.g., YouTube), could be used against you in criminal prosecution; and

-  You agree, for yourself and your heirs, assigns, and agents, to fully and completely release, never bring any action in any court of law against, and to indemnify, defend, and hold harmless Virfex for any and all liability stemming from your purchase, possession, or use of the item(s).

Illegally purchasing, possessing, or using body armor or other items sold by Virfex may result in severe legal consequences for you, up to and including incarceration.  Virfex will fully cooperate with all criminal investigations. 

Non-law enforcement residents of Connecticut are prohibited from purchasing body armor. 

Virfex assumes NO LIABILITY for your use or misuse of any item(s) sold or donated, including without limitation any incidental or consequential liability.  ALL WARRANTIES, INCLUDING THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, ARE HEREBY EXCLUDED.  NO ORAL AGREEMENT OR WARRANTY OF ANY KIND SHALL BE BINDING UNLESS IN WRITING AND SIGNED BY VIRFEX.  Statements, images, or descriptions are informational only, and not made or given as a warranty in any way.  Virfex specifically disavows any other representation, warranty, or liability related to the condition or use of the items sold.  Virfex does not cover any consequential damages, and its liability is limited to repairing or replacing defective items.  Every item is sold "AS IS" and "WITH ALL FAULTS".  The entire risk as to the quality and performance of the product is with the buyer.  

Trademarks
Certain trademarks, trade names, service marks and logos used or displayed on this Web Site are registered and unregistered trademarks, trade names and service marks in the U.S. and other countries of us and our affiliates. Other trademarks, trade names and service marks used or displayed on this Web Site are the registered and unregistered trademarks, trade names and service marks of their respective owners. Nothing contained on this Web Site grants or should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademarks, trade names, service marks or logos displayed on this Web Site without our written permission or the written permission of such third party owner.

 

Use of this Web Site
The Web Site design and all text, graphics, information, designs, logos, content, and other material displayed on or that can be downloaded from this Web Site are either the property of, or used with permission by, VIRFEX,LLC and are protected by U.S. and International copyright, trademark and other laws and may not be used except with the prior written permission of the owner of such material. You may not modify the information or materials located on this Web Site in any way or reproduce or publicly display, perform, or distribute or otherwise use any such materials for any public or commercial purpose. All software used on this site is the property of VIRFEX,LLC or our software suppliers and is protected by U.S. and International copyright laws. Any unauthorized use of any such information or materials may violate copyright laws, trademark laws, laws of privacy and publicity, and other laws and regulations. You are responsible for maintaining the confidentiality of your account information and password and for restricting access to such information and to your computer. You agree to accept responsibility for all activities that occur under your account or password.

 

Linking to this Web Site
Creating or maintaining any link from another Web site to any page on this Web Site without our prior written permission is prohibited. Running or displaying this Web Site or any material displayed on this Web Site in frames or through similar means on another Web site without our prior written permission is prohibited. Any permitted links to this Web Site must comply with the Terms and Conditions of our permission as well as all applicable laws, rules and regulations

 

Limitations of Liability
We assume no responsibility, and shall not be liable for, any damages to, or viruses that may infect, your computer, telecommunication equipment, or other property caused by or arising from your access to, use of, or browsing this Web Site or your downloading of any materials, from this Web Site.

IN NO EVENT WILL WE, OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, PARENT CORPORATIONS, AGENTS, SUCCESSORS, ASSIGNS, RETAIL PARTNERS NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THIS WEB SITE BE LIABLE TO ANY PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THIS WEB SITE, ANY WEB SITES LINKED TO THIS WEB SITE, OR THE MATERIALS, INFORMATION OR SERVICES CONTAINED AT ANY OR ALL SUCH WEB SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.

 

Revisions to these Terms and Conditions.

We may revise these Terms and Conditions at any time and from time to time by updating this posting. You should visit this page from time to time to review the then current Terms and Conditions because they are binding on you. Certain provisions of these Terms and Conditions may be superseded by expressly designated legal notices or terms located on particular pages at this Web Site.

 

Choice of Law; Jurisdiction 

These Terms and Conditions supersede any other agreement between you and VIRFEX to the extent necessary to resolve any inconsistency or ambiguity between them. These Terms and Conditions will be governed by and construed in accordance with the State and Federal laws of the State of Massachusetts, without giving effect to any principles of conflicts of laws. A printed version of these Terms and Conditions shall be admissible in judicial and administrative proceedings based upon or relating to these Terms and Conditions to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

 

Indemnification

You agree to defend, indemnify and hold VIRFEX.LLC harmless from and against any and all claims, damages, costs and expenses, including attorneys’ fees, arising from or related to your use of the Site.

 

Termination
You or we may suspend or terminate your account or your use of this Web Site at any time, for any reason or for no reason. You are personally liable for any orders that you place or charges that you incur prior to termination. We reserve the right to change, suspend, or discontinue all or any aspect of this Web Site at any time without notice.

 

International Traffic in Arms Regulations (ITAR) / Export Regulations

Level IV rifle rated body armor (Rifle Plates), ceramic or composite, fall under the jurisdiction of the International Traffic in Arms Regulations (ITAR), and are subject to the export control laws of the U.S. Government. Export or retransfer of Level IV Rifle Plates by any means to any foreign end user, or for any other end use, whether in the U.S. or abroad, without the written approval of the U.S. Department of State, is prohibited.

Level III rifle rated plates are now under the control of the Commerce Department’s Bureau of Industry and Security (BIS)and administered under the Export Administration Regulations (EAR) and remain subject to the export controls laws of the U.S. Government. Export or retransfer of Level III Rifle Plates by any means to any foreign end user, or for any other end user, whether in the U.S, or abroad, without the written approval of the U.S. Department of Commerce, is prohibited.

The sale, transfer, transportation, or shipment outside of the U.S. of any product prohibited or restricted for export without complying with U.S. export control laws and regulations, including proper export licensing, documentation or authorization, is strictly prohibited and may result in civil penalties and/or constitute a federal crime. Virfex will not engage in any transaction that requires the illegal export of any products and will not assist directly or indirectly with the illegal export or re-export of any products.

We do not ship to APOs due to BIS and ITAR regulations and the nature of our products.

These Terms & Conditions may be updated, revised, or changed without prior notice.