Standard Terms and Conditions of Sale
Carts of Colorado, Inc. (the “Seller”) and the company or individual named (the “Buyer”) on the face of any invoice, quote, proposal or other document issued by Seller (“Invoice or Proposal”) agree to the following terms and conditions (these “Terms and Conditions”):
1. NONCONFORMING TERMS. No terms contained in any purchase order or other document received from the Buyer, either prior or subsequent to the date of an Invoice or Proposal, shall be binding upon the Seller unless expressly accepted in writing by an authorized representative of the Seller. Seller’s acceptance of Buyer’s purchase order is expressly limited to and made conditional upon Buyer’s acceptance of these Terms and Conditions contained herein, to the exclusion of any and all other terms and conditions, whether the source of such terms and conditions is Buyer’s standard terms and conditions, any other document of Buyer, any course of dealing, any course of performance, any trade custom or usage, and/or any other source whatsoever.
2. TAXES. Except as otherwise provided on an Invoice or Proposal, the price does not include any applicable sales, use, VAT, excise, or other taxes, duties, assessments, charges, and import or export fees imposed on the products and/or services described on the face of an Invoice or Proposal (the “Products”). The Buyer agrees to pay any and all such taxes. Quoted taxes are subject to change and Gallery reserves the right to adjust taxation at the time of product shipment.
3. SHIPMENT. Unless otherwise set forth in the Invoice or Proposal, the Products shall be delivered FCA (Incoterms 2010) Buyer’s facility location set forth in the Invoice or Proposal (the “Delivery Point”), and risk of loss for the Products shall pass to Buyer upon delivery at the Delivery Point, it being understood and agreed that all of Seller’s prices are based on such delivery terms. Title to the Products shall pass from Seller to Buyer at the later to occur of (i) delivery of the Products at the Delivery Point and (ii) receipt by Seller of Buyer’s payment in full of the purchase price. Buyer is responsible for a daily storage charge from and after the date that is four (4) weeks after delivery of the Products at the Delivery Point.
4. PAYMENT TERMS. Unless otherwise specified by the Seller in writing, the terms of payment shall be 50% of the purchase price with Buyer’s purchase order and prior to procurement of materials, and 50% of the purchase price prior to delivery at the Delivery Point. The Seller reserves the right at any time and in its sole discretion to require payment in full in advance or C.O.D. or to otherwise modify the payment terms. All payments shall be made in immediately available funds in United States Dollars. All payments made by credit card will be charged a 3% fee on the total payment amount. Without prejudice to Seller’s other remedies, past due amounts shall bear interest at the rate of 1.5% per month or the highest rate permitted by law, whichever is less. Seller reserves the right to require a personal guaranty or irrevocable confirmed letter of credit in favor of Seller for 100% of the Product’s value.
5. DELIVERY. Delivery dates are not guaranteed by Seller and are based on normal expectancies only. In most cases, Seller’s delivery lead time is approximately 4-8 weeks from design payoff and Seller’s receipt of the initial progress payment. Rush services are available, but Buyer shall incur any additional costs resulting from such rush service, including any and all vendor costs incurred by Seller. Any Buyer-initiated design changes to the Products accepted by Seller in writing may result in additional charges and longer lead times. Notwithstanding the generality of the foregoing, in no event shall Seller be deemed in default on account of any delay in the performance of any obligation of Seller if the delay is caused directly or indirectly by one or more forces or events beyond the reasonable control of Seller, including, but not limited to, delay caused directly or indirectly: (i) by action or inaction of Buyer, (ii) by failure of any manufacturer, contractor or supplier to timely provide raw materials, parts, tools, tooling, equipment, services, technical information, data or assistance, transportation or any other material or service reasonably necessary for performance by Seller, (iii) by governmental action or inaction, (iv) by strike or other labor disturbance, or (v) by war, armed hostilities, riot, fire, breakage of equipment, explosion, flood, earthquake, or any Act of God. Upon delivery, Buyer shall be responsible for securing the Products on site to prevent rolling and damage to the Products and Seller shall not have any liability or responsibility for any damage to the Products caused by setup or installation performed by Buyer without Seller’s supervision. Buyer is responsible for ensuring that the Products can be properly delivered to the Delivery Point, and that the location intended for use of the Products is suitable for the size, requirements and characteristics of the Products.
6. CANCELLATION AND CHANGE. Orders are subject to cancellation, partial cancellation or change only with the consent of the Seller and only upon such terms as the Seller may impose, including, without limitation, forfeiture of deposit or payment of a cancellation charge. Should Buyer terminate, cancel, or stop its order, in whole or in part without Seller’s consent, such termination, cancellation, or stoppage shall constitute a breach by Buyer, for which Seller shall be entitled to all damages of Seller related to such breach, including, without limitation, the amount of Seller’s cancellation costs and damages, including expenditures on materials, labor, overhead, and payments to subcontractors, direct costs incurred by Seller in settling claims with subcontractors or suppliers, reasonable profits on the work performed including work in process on the terminated portion of the order prior to Seller’s receipt of the Buyer’s termination, cancellation, or stoppage notice, which amount shall be calculated at not less than Seller’s profit margin on the entire project multiplied by the cost of the total work performed prior to Seller’s receipt of the Buyer’s termination. Prices are set on the basis of the total quantity ordered, even though shipment may be in stages. Cancellation of a portion of an order after an earlier portion has been shipped and invoiced will result in an adjustment to the purchase price and an additional charge to the Buyer.
7. USE; COMPLIANCE WITH LAWS. Buyer shall be responsible for complying with all laws, rules and regulations applicable to Buyer’s possession and use of the Products, including, without limitation, building codes, vending codes, local health and safety codes, and fire codes, and Seller shall not be responsible for, and Buyer shall hold Seller harmless from, any non-compliance by the Products with respect to such laws, rules and regulations.
8. LIMITED WARRANTY. When assembly of a Product is required, Seller’s Limited Warranty is valid only when a Seller representative supervises Buyer’s assembly of the Products. The Seller warrants that at the time of delivery at the Delivery Point all Products will be free from defects in Seller-supplied materials and Seller-supplied workmanship for a period of one (1) year after the date of delivery at the Delivery Point; provided, however, that the foregoing warranty shall not cover, and Buyer acknowledges that Seller has made no warranty (and that Seller does not make any warranty) with respect to any of the following: (a) parts, materials, assemblies, or other items provided directly or indirectly by Buyer, if any, (b) parts, materials, assemblies, or other items obtained directly or indirectly from the original equipment manufacturer or from any other source, if any, it being understood and agreed that Seller hereby assigns to Buyer any assignable warranties given by the original equipment manufacturer or other source, or (c) any design aspect of the Products supplied by Buyer (the “Limited Warranty”). Seller’s sole liability, and Buyer’s exclusive remedy, for Seller’s breach of the Limited Warranty shall be the repair or replacement of the Products, at Seller’s election, of the defective Products shown to Seller’s reasonable satisfaction to have been defective at the time of delivery. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE LIMITED WARRANTY, OR IN ANY AGREEMENT BETWEEN BUYER AND SELLER PERTAINING TO THE PRODUCTS, OR AT LAW OR IN EQUITY: THE WARRANTIES, OBLIGATIONS, AND LIABILITIES OF SELLER, AND THE REMEDIES OF BUYER SET OUT IN THIS SECTION 8, ARE SOLE AND EXCLUSIVE, AND ARE MADE AND ACCEPTED BY BUYER IN LIEU OF, AND BUYER WAIVES AND RELEASES, ALL OTHER WARRANTIES, OBLIGATIONS, AND LIABILITIES OF SELLER, AND ALL OTHER CLAIMS AND REMEDIES OF BUYER, EXPRESS OR IMPLIED, ARISING BY STATUTE OR OTHERWISE, WITH RESPECT TO ANY DEFECT IN THE PRODUCTS OR ANY DEFECT IN THE SELLER-SUPPLIED WORKMANSHIP OR ANY DEFECT IN ANY SELLER-SUPPLIED MATERIALS PERTAINING TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO THE WAIVER AND RELEASE BY BUYER OF THE FOLLOWING: (i) ANY STATUTORY OR IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PURPOSE, (ii) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND (iii) ANY OTHER RIGHT, CLAIM, OR REMEDY WHATSOEVER OF BUYER OR OF ANY PERSON OR ENTITY CLAIMING BY, THROUGH, OR UNDER BUYER AGAINST SELLER, WHETHER ARISING PURSUANT TO THE LIMITED WARRANTY, PURSUANT TO ANY AGREEMENT PERTAINING TO THE PRODUCTS, OR IN CONTRACT, IN INDEMNITY, IN TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), IN PRODUCTS LIABILITY, IN STRICT LIABILITY, OR OTHERWISE. BY ACCEPTING OR USING THE PRODUCTS, BUYER FURTHER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT NO STATEMENT OR REPRESENTATION HAS BEEN MADE BY SELLER, OR RELIED UPON BY BUYER, THAT IS INCONSISTENT WITH THE LIMITED WARRANTY.
9. DEFECTIVE PRODUCTS AND TESTING. If the Buyer believes that a Product is defective, it must notify the Seller immediately in writing. The Product shall not be returned to the Seller without the prior written authorization of the Seller. If the Buyer wishes to conduct tests to determine whether the goods are conforming, it must notify the Seller prior to conducting the tests, endeavor to reach agreement with the Seller on testing procedures and provide the Seller with an opportunity to witness such tests. Buyer shall take reasonable measures to ensure that any damage to any Product, no matter the cause, is not allowed to become more extensive.
10. INDEMNITY. Buyer shall defend, indemnify, and hold Seller and its affiliated companies, and their respective shareholders, members, directors, officers, employees, agents, and representatives, harmless from and against any and all costs (including attorneys fees and costs of litigation), losses, damages, liabilities, penalties, settlements, or judgments, howsoever arising from, in connection with, or on account of a breach by Buyer of any obligation imposed by these Terms and Conditions, any Invoice or Proposal, applicable rule of law, or on account of the Buyer’s or any third party’s use or possession of the Products.
11. INTELLECTUAL PROPERTY. Buyer acknowledges and agrees that Intellectual Property pertaining to the Products shall be owned solely and exclusively by Seller. For purposes of this Section 11, “Intellectual Property” means the following, whether now or hereafter existing: all rights of intellectual and/or industrial property anywhere in the world, including for the avoidance of doubt, patents (including patents of importation, patents of confirmation, patents of improvement, patents and certificates of addition and utility models, as well as divisions, reissues, continuations, continuations-in-part, renewals and extensions of any of the foregoing), data, information, inventions, ideas, discoveries, improvements, know-how (including information comprised in or derived from formulae, designs, specifications, processes, techniques, drawings, parts lists, product documentation, manuals, instructions, and planning documents, each in whatever form held), work product, copyrights, trade secrets, trade and services marks, industrial property, and including all registrations and applications for the same, and the right to apply for any of the same, and all like rights, and all other forms whatsoever of intellectual property, whether or not patentable.
12. DEFAULT. In the event the Buyer fails to make payment in the amounts and at the time required by the Seller pursuant to an Invoice or Proposal or is in default under any other provisions of an Invoice or Proposal or any sales order, invoice or other agreement between the Buyer and the Seller, or in the event of any proceedings, voluntary, in bankruptcy or insolvency by or against the Buyer, the inability of the Buyer to meet its debts as they come due or the appointment, with or without the Buyer’s consent, of an assignee for the benefit of creditors or a receiver, then the Seller shall have the right, in addition to all the other rights it may possess at any time, to withhold shipments, in whole or in part, and to recall goods in transit, retake same and repossess all goods which may be stored with the Seller for the Buyer’s account, without the necessity of instituting any other proceedings. The Buyer agrees that all goods so recalled, retaken of repossessed shall become the absolute property of the Seller, provided that the Buyer is given full credit therefor. The Seller shall also have all of the rights and remedies available to it under the Uniform Commercial Codes and other laws in effect.
13. WAIVER. No waiver of any provision of an Invoice or Proposal or these Terms and Conditions by the Seller shall be valid unless in writing and signed by an authorized representative of the Seller. No delay on the part of the Seller in exercising any right of remedy available to it shall be valid unless in writing and signed by an authorized representative of the Seller. No delay on the part of the Seller in exercising any right or remedy available to it shall operate as a waiver of such right or remedy.
14. GOVERNING LAW. These Terms and Conditions, any Invoice or Proposal, and the sale of the Products shall be governed by the laws (excluding conflicts of law principles) of the State of Colorado. The United Nations Convention on Contracts for the International Sales of Goods shall not apply to the sale of the Products. Any litigation pertaining to any Invoice or Proposal or these Terms and Conditions may only be brought in, and Buyer submits to the jurisdiction of and waives any objection to venue in, the federal and state courts located in Denver, Colorado.
15. ATTORNEYS’ FEES. In the event of litigation between Seller and Buyer to enforce any Invoice or Proposal or these Terms and Conditions, or for damages or any other remedy for breach thereof or hereof, the prevailing party shall be awarded reasonable attorneys’ fees to be taxed as costs in addition to any other remedy or judgment awarded pursuant to the litigation.
16. COUNTERPARTS. This Agreement may be executed in duplicate counterparts, which shall constitute one and the same instrument.
17. SEVERABILITY. In the event that any provision, term or condition of any Invoice or Proposal or these Terms and Conditions is declared void, unenforceable, or against public policy, then said provision, term or condition shall be construed as though it did not exist and shall not affect the remaining provisions, terms, or conditions of such Invoice or Proposal or these Terms and Conditions, and the same shall be interpreted as far as possible to give effect to the parties’ intent.
18. ENTIRE AGREEMENT. The provisions of these Terms and Conditions, including any Invoice or Proposal incorporating therein these Terms and Conditions, constitute the entire agreement between Seller and Buyer with regard to the Products and, except as set out in these Terms and Conditions, including such Invoice or Proposal, there are no other agreements, representations, warranties, or other understandings whatsoever between Seller and Buyer with regard thereto.
19. LIMITATION OF LIABILITY. WITHOUT PREJUDICE TO ANY OTHER PROVISION OF THESE TERMS AND CONDITIONS, SELLER SHALL NOT HAVE ANY OBLIGATION OR LIABILITY, AND BUYER ACKNOWLEDGES THAT SELLER SHALL NOT HAVE ANY OBLIGATION OR LIABILITY WHATSOEVER, TO BUYER, OR TO ANY PERSON OR ENTITY CLAIMING BY, THROUGH, OR UNDER BUYER, WHETHER ARISING PURSUANT TO THE LIMITED WARRANTY, PURSUANT TO ANY AGREEMENT PERTAINING TO THE PRODUCTS, OR IN CONTRACT, IN INDEMNITY, IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), IN PRODUCTS LIABILITY, IN STRICT LIABILITY, OR OTHERWISE, FOR ANY EXEMPLARY OR PUNITIVE DAMAGES OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (EVEN THOUGH SUCH DAMAGES MAY BE FORESEEABLE) INCLUDING, BUT NOT LIMITED TO: LOSS OF PROFITS OR REVENUES; LOSS OF USE OF EQUIPMENT; COST OF CAPITAL; COST OF SUBSTITUTE EQUIPMENT, REPAIRS, OR FACILITIES; COST OF DOWNTIME; COST OF PURCHASED OR REPLACEMENT PRODUCTS OR PARTS; COST OF TRANSPORTATION; COST OF FREIGHT, INSPECTION, INSTALLATION, REMOVAL OR REINSTALLATION WITH RESPECT TO THE PRODUCTS; OR CLAIMS OF ANY CUSTOMERS OF BUYER FOR ANY SUCH DAMAGES.
20. PRICING. Any price quoted by Seller to Buyer is valid for a period of 30 days from the date of such quote. The pricing terms on any Invoice or Proposal is valid for a period of 90 days from the date of such Invoice or Proposal, it being understood and agreed by Buyer that if payment is not received by Seller pursuant to these Terms and Conditions, such pricing is subject to adjustment in Seller’s sole discretion.