Exhibit A
Colony Display LLC
Terms and Conditions
1. Basis of Sale.
1. Basis of Sale. All products furnished by Colony Display LLC (“Seller”) to the Customer, including, without limitation, pursuant to a quote sheet and/or purchase order, are sold subject to these Terms and Conditions (these “Terms and Conditions”).
2. Precedence.
2. Precedence. These Terms and Conditions shall take precedence over any terms and conditions contained in Customer’s quote sheet, purchase order or other similar form or in any documentation incorporated by reference in Customer’s quote sheet or purchase order. No term or condition of any quote sheet or purchase order additional to, or different from, the terms and conditions set forth herein, shall become part of any agreement between Seller and Customer unless expressly agreed to in writing signed by Seller.
3. Future Purchase Orders.
3. Future Purchase Orders. Customer hereby agrees that, except as set forth in the immediately following sentence, any and all future quote sheets issued by Seller or purchase orders issued by Customer shall be governed by these Terms and Conditions. If Customer is unwilling or unable to comply with any of the terms set forth in these Terms and Conditions, it shall notify Seller within 5 days of receipt of the quote sheet or upon submission of its purchase order.
4. Quotes and Quote Sheets.
4. Quotes and Quote Sheets. All quotes made by Seller on a quote sheet are valid for 30 days from the date of the quote sheet. Prior to acceptance of a quote sheet, it is the Customer’s responsibility to check the fabrication details on such quote sheet, including color and quantity of units, and to confirm all such details are correct.
5. Payments (Deposit and Final Payment).
5. Payments (Deposit and Final Payment). Payment of a deposit of 50% of the quoted total price (“Deposit”) by Customer to Seller is required upon acceptance of any quote sheet and prior to the commencement of any work by Seller. By sending the Deposit to Seller pursuant to the instructions on the quote sheet or purchase order, Customer acknowledges, accepts, and agrees to these Terms and Conditions. The remaining balance of 50% of the quoted total price (“Final Payment”) is due and payable 14 days prior to the projected shipping date of any products. If Final Payment is not received at least 14 days prior to the projected shipping date, the products will be delayed, and a new in-store date will be published once Final Payment is received. Seller accepts direct deposit, cash, check, or credit cards (Visa / Mastercard / American Express) with an extra credit card charge of 3%.
6. Ownership.
6. Ownership. All products remain the property of Seller until Final Payment is received in full, which occurs upon receipt of proof of payment and funds cleared in Seller’s bank account.
7. Cancellation of Order or Customer Delay.
7. Cancellation of Order or Customer Delay. Once Seller commences work on the products ordered pursuant to a quote sheet or purchase order, and in any event at any time after the date that is 30 days following Seller’s receipt of the Deposit, such quote sheet or purchase order (and any products or work pursuant thereto) may not be cancelled, and the Deposit will not be refundable. Customer must inform Seller of any Customer-side delay at least 3 weeks prior to the projected ship date. Failure to provide such 3-week notice of delay will result in a minimum warehousing fee of $500 per week or more (depending on the quantity of products) until shipping occurs.
8. Delivery Date and Projected Ship Date.
8. Delivery Date and Projected Ship Date. Once the Deposit is received, Seller will provide a delivery date and projected ship date. In the event that products are not shipped by the projected ship date, such products will be subject to a storage fee in an amount equal to $2 per square foot per month.
9. Storage.
9. Storage. If Customer plans to store the products upon delivery, then the products should be placed in a climate-controlled environment. No-climate controlled storage can cause damage to the products due to changes in temperature and humidity. Damage due to improper storage will be the responsibility of Customer, and Seller disclaims any warranties against such damage.
10. Delivery Terms.
10. Delivery Terms. Unless otherwise specified, products will be delivered via truck in a 53-foot standard trailer without lift gate (unless specifically requested). Customer shall be solely responsible for offloading the trucks upon delivery. Each truck has a 2-hour offloading window. Seller recommends that Customer rent forklift, hand pallet jack, lull and/or similar implements if a dock is not available. Seller recommends that Customer have at least 4 people available to perform the offloading process. Additional fees will be charged to Customer for any offloading delays (including refusal of delivery). Additional charges incurred for delays (including refusal of delivery) must be paid in full before a new delivery date will be scheduled. Delivery costs are quoted prior to placement of purchase orders, but Seller reserves the right to adjust the delivery charges to reflect the actual cost of delivery on the delivery date. Customer shall indemnify Seller against all claims and liabilities therefore. Delivery dates listed in a quote sheet or purchase order are approximate only, and Seller shall not be liable for any delivery of products in advance of or subsequent to the date quoted for delivery, however caused, and time for delivery is not of the essence.
11. Receiving Requirements.
11. Receiving Requirements. A qualified person shall be present upon delivery to accept products on behalf of Customer. Customer shall take photographs of products in the truck immediately after the doors have opened and before any products are offloaded. If there is concern about damage to a particular skid, then a photograph of the skid shall be taken as well as a photograph showing the potential damage. The person receiving the delivery shall inspect the items before signing the bill of lading (“BOL”) and shall also initial the packing list. During the delivery process, Customer takes physical possession and legal ownership of the products delivered. A signature on the BOL upon receipt of the products confirms that the products are received in good condition unless exception is made on the BOL. Inspection of all products must occur at the time of delivery and BOL must be notated with any damages or discrepancies before the delivery driver leaves the delivery location. If the driver leaves before inspection is completed, Customer shall note on the BOL “Possible Concealed Damage Present, which will be the responsibility of the carrier as determined upon inspection of the products.” Full inspection must occur immediately, and Customer must contact Seller within 24 hours of delivery regarding any missing or damaged products or missing or any other failure of the products to meet the specifications of the applicable quote sheet or purchase order. Product delivery shall not be refused by Customer for any reason. Refusal of delivery will result in additional charges to Customer.
12. Inspection.
12. Inspection. Upon receiving the products, Customer shall conduct an inspection to verify the following minimum conditions: (a) the products conform to the purchase order requirements or other relevant documents (e.g., correct model number, description, size, type, color, etc.); (b) the quantity ordered matches the quantity shipped and delivered; (c) no damage or breakage of products; (d) unit of measurement count is correct (e.g., if the unit of measurement on the purchase order is one dozen, then there should be 12 items in the package); (e) delivery documentation (packing list, certifications, etc.) is acceptable; (f) products are operational and functional; and (g) when receiving items from a freight company, the number of packages / skids received matches exactly the number on the freight bill.
13. Acceptance.
13. Acceptance. Customer shall take the following upon delivery: (a) perform inspection in accordance with Section 12 hereof; (b) obtain photos of the interior of the truck upon initial opening; (c) obtain photos of damaged product on skid before unpacking if present; (d) notate missing product (if any) on BOL; (e) notate damaged product (if any) or potential concealed damage (if applicable) on BOL; (f) contact Seller within 24 hours of delivery of products with a failure report if any products are damaged, missing or otherwise fail to meet the specifications of the applicable quote sheet or purchase order. For the avoidance of doubt, the products will be deemed accepted by Customer if no report is made to Seller within 24 hours of delivery, regardless of any failure to perform the actions outlined above, and after such time all missing or damaged products or failure of the products to meet the specifications of the applicable quote sheet or purchase order will become the sole responsibility of Customer.
14. Warranty.
14. Warranty. Seller represents and warrants that the products are in conformance with all applicable specifications and standards of Seller. Except as otherwise set forth in the immediately preceding sentence, the products are sold “as is” and “where is”, and Seller makes no other express or implied warranties to Customer regarding such Products.
THE FOREGOING WARRANTY EXTENDS ONLY TO CUSTOMER, AS THE ORIGINAL PURCHASER, AND, TO THE EXTENT APPLICABLE, IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, TERMS AND CONDITIONS, REPRESENTATIONS, INDEMNITIES, AND GUARANTEES WITH RESPECT TO ANY PRODUCTS SOLD BY SELLER TO CUSTOMER, AND IN LIEU OF ANY OTHER OBLIGATION ON THE PART OF SELLER, EXPRESS OR IMPLIED, OR ARISING BY LAW OR CUSTOM, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
15. Limitation of Liability.
15. Limitation of Liability. UNDER NO CIRCUMSTANCES WHATSOEVER SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, INCLUDING, WITHOUT LIMITATION, DAMAGE OR LOSS OF PROPERTY OR EQUIPMENT, LOSS OF PROFITS OR REVENUE, COST OF CAPITAL, LOST GOODWILL, COST OF PURCHASED OR REPLACEMENT PRODUCTS, CLAIMS FOR SERVICE INTERRUPTIONS, IMPAIRMENT OF OTHER ASSETS, OR OTHERWISE, AND WHETHER ARISING OUT OF BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, MISREPRESENTATION, OR OTHERWISE. IN NO EVENT SHALL SELLER’S LIABILITY EXCEED THE COST OF THE PRODUCTS AT ISSUE.
16. Indemnification.
16. Indemnification. Customer shall indemnify and hold harmless Seller, and shall pay to Seller the monetary value of any losses (including all attorney’s fees and related costs and expenses) arising, directly or indirectly, from or in connection with: (a) Customer’s use of the products; (b) any negligence or willful misconduct of Customer; (c) failure of customer to receive delivery and conduct inspection of the products in accordance with these Terms and Conditions.
17. Regulatory/Legal Responsibility.
17. Regulatory/Legal Responsibility. Notwithstanding anything to the contrary contained herein or any information provided to Seller by Customer as it relates to the products, Customer shall remain responsible for making any and all legal and regulatory decisions as it relates to its use of the products, and Customer will remain responsible for compliance with any and all laws and regulations in Customer’s jurisdiction as it relates to the products.
18. Force Majeure.
18. Force Majeure. Seller shall be excused from performing in the event of acts of God, strikes, riots, fires, war, revolution, civil commotion, acts of a public enemy, acts of terror, assertions by third parties of infringement claims, late or non-delivery by suppliers to Seller, lack of adequate production capacity, failure or delay in plant start-up, breakdown of machinery or shortages of raw materials, power, equipment, field, transportation, containers, local, federal, or foreign governmental prohibitions or limitations on performance, any act, law or regulation of any government with jurisdiction over Seller, and all other contingencies beyond the reasonable control of the party claiming excuse which render performance by such party impractical. In the event of shortage of production or supply of products for any reason, Seller reserves the right to allocate its supplies of products to itself as well as to unaffiliated customers, as it deems equitable.
19. Assignment.
19. Assignment. Customer shall not assign its rights under any transactions contemplated by these terms and conditions without the express prior written consent of Seller.
20. Amendment.
20. Amendment. These Terms and Conditions may be amended or supplemented only by a separate, signed agreement expressly amending or supplementing one or more of these terms and conditions and signed by a duly authorized representative of Seller and Customer.
21. Severability.
21. Severability. In the event any of the terms and conditions contained herein is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other term or condition.
22. Waiver.
22. Waiver. Any claim or right of Seller arising out of a breach of these terms and conditions or the transactions contemplated hereunder can be discharged in whole or in part by a waiver or renunciation of the claim or right only if such waiver or renunciation is supported by consideration and is in writing signed by a duly authorized representative of Seller. The waiver by Seller of a breach of any provision of these terms and conditions or any of the transactions contemplated hereunder shall not constitute a waiver of any other breach, or a subsequent breach of such provision for the same or any other cause. No waiver shall be effective unless it is in writing and signed by a duly authorized representative of Seller.
23. Notice.
23. Notice. All notices required or permitted to be sent to Seller or Customer shall be given in writing, and shall be deemed duly delivered when received via: (a) e-mail, provided that a written copy of such notice is promptly delivered thereafter; (b) facsimile, provided that a written copy of such notice is promptly delivered thereafter; or (c) an internationally recognized commercial overnight courier service. All such notices shall be sent to the parties at such addresses as set forth in the applicable quote sheet or purchase order.
24. Intellectual Property.
24. Intellectual Property. Seller shall retain sole ownership of all right, title, and interest in and to all of its intellectual property, including, without limitation, content and materials on its website, ideas, methods, trademarks, service marks, trade names, symbols, logos, copyrights, patents, trade secrets, and know-how (collectively, the “Intellectual Property”), and no licenses to any Intellectual Property are created hereunder.
25. Confidential Information.
25. Confidential Information. All Intellectual Property, specifications, drawings, documents, designs, data, information, computer software, technical matter, samples, and/or inventions acquired, made, conceived, or developed by Seller (including, without limitation, if acquired, made, conceived, or developed in cooperation with Customer), incident to procuring or carrying out the transactions contemplated by these terms and conditions (collectively, the “Confidential Information”) is and shall be the property of Seller and shall be disclosed to Customer only to assist Customer, and such disclosure shall be made only on a confidential basis and in no way shall impair the confidential nature thereof. Without the express prior written consent of Seller, Customer shall not at any time disclose, or cause or permit any employee, agent or affiliated, controlled, or controlling entity of Customer to disclose to any person, firm, corporation, or other entity, or use for its own or their benefit, or reproduce, the Confidential Information, or any information concerning the business affairs of Seller. Confidential information shall not include any information which is: (i) otherwise in the public domain or (ii) disclosed without violation of these terms and conditions or any other agreement between Customer and Seller relating to the transactions contemplated by these terms and conditions. The Confidential Information is provided by Seller with the express understanding that such Confidential Information is owned exclusively by Seller, and Customer shall acquire no right, title or interest in or to the Confidential Information.
26. Governing Law/Limitations.
26. Governing Law/Limitations. All transactions to which these terms and conditions apply shall be governed by and construed in accordance with the laws of the State of Illinois, without reference to any choice of law provision that would cause the application of the laws of any jurisdiction other than the laws of Illinois. Any dispute or claim arising out of or relating to these Terms and Conditions or any quote sheet, purchase order or product shall be brought exclusively in the federal or state courts located in Cook County, Illinois, and each of Customer and Seller waive any right to challenge jurisdiction or venue in such courts with regard to any suit, action, or proceeding under or in connection with these Terms and Conditions or any quote sheet, purchase order or product.