Seller means Canvas In Stock, a Florida corporation. “Buyer” means the person, firm or entity to which this quotation is directed. This quotation, any order resulting therefrom, and any acceptance of such order shall together constitute the “Agreement” as that term is used herein. The only terms and conditions upon which Seller will accept orders in response to the quotation are those set forth herein, and any order resulting from this quotation shall be accepted by Seller on the condition that the order is subject to these terms and conditions, which will become a part of the Agreement upon its formation.
- FORMATION. The Agreement will be formed only upon Seller’s written acceptance of Buyer’s order at Seller’s headquarters.
- PRICE; PAYMENT. Unless otherwise stated, prices quoted are F.O.B., Tucker, GA, USA, in US dollars, and payment is due upon receipt of Seller’s invoice. Each payment, which is due from Buyer, shall be made strictly in accordance with the terms set forth in the Agreement. Time of payment is of the essence of the Agreement. In the event that any payment is not made when due, seller shall be entitled to terminate the Agreement and to seek any and all remedies to which Seller may be entitled. Buyer agrees that Seller shall be entitled to recover from Buyer all of the reasonable costs and expenses of collection, including attorney’s fees, which may be incurred by Seller in enforcing any obligation due under the Agreement, including payment. Buyer shall not be entitled to set off, recoup or withhold any payment, or any portion thereof, which is due.
3.DELIVERY; INSPECTION. Unless indicated by language such as “firm” or ” no later than” appearing in Seller’s quotation, all delivery periods are estimates only. Upon formation of the Agreement, Buyer and Seller will attempt to establish a firm delivery date or schedule. In no event, however, shall Seller be responsible or liable for any damage or loss resulting from failure or delay of performance, including delivery, if such failure or delay arises out of any act of God, weather condition, war, strike, emergency, disruption of services or labor, work stoppage, delay of any supplier to Seller, or other occurrence beyond the direct control of Seller alone. All delivery periods shall be adjusted and extended by any such occurrence, and by the actions of Buyer, including receipt of order and /or deposit from Buyer. If no inspection of goods is specified, or if such inspection is not made by Buyer as specified, such inspection shall be waived and delivery or tender of delivery by Seller shall constitute acceptance of goods by Buyer. If no time is specified, Buyer must make such inspection and notify Seller of any shortages, improper material, apparent defects or damage within three (3) days of receipt, and any failure to so notify Seller shall be a waiver of any such claims by Buyer. Any failure by Buyer to timely notify Seller of any claim that any of the goods are defective or nonconforming shall be waived, and such failure to give notice shall constitute an unqualified acceptance of the goods. Buyer agrees to pay Seller reasonable storage charges in the event that Seller is unable to deliver goods as a result of any action or omission of Buyer. All freight charges and customs duties are solely for Buyer’s account irrespective of Seller’s role in arranging delivery.
- TITLE; RISK OF LOSS; CONFIDENTIALITY. Title and risk of loss to goods shall pass to Buyer upon loading of goods by transporter at Seller’s facility, subject to liens or charges in favor of Seller for unpaid purchase price and /or taxes. Seller’s drawings, blueprints, computer codes, technical information, intellectual property and know-how shall be the exclusive property of Seller, and Buyer shall have no right, title or interest therein. Buyer shall maintain in confidence, and shall not disclose to any third party, or use for any purpose other than that for which it was supplied, any information or property of Seller which is designated by Seller as confidential, secret or proprietary information of Seller.
- TAXES. Any and all sales, use, excise or similar tax or charge, and all penalties and/or interest thereon, imposed by any and taxing authority upon the goods, services or activities which are the subject of the Agreement are not included in any price quoted, shall be added to the price quoted, and shall be promptly paid or reimbursed by Buyer.
- PERFORMANCE ESTIMATES. Any statement or estimate by Seller, or any of its agents, regarding production, capacity, performance or durability of the goods or services which are the subject of the Agreement are not representations or guarantees of the same unless specifically set forth in the quotation from Seller. Any such statements or estimates which are not set forth in the quotation from Seller may be based upon past performance of similar goods in conjunction with various types of equipment, systems or facilities which may have operated under various conditions. The results experienced by such equipment, systems or facilities may vary for many reasons, including environmental and work piece conditions. Buyer expressly acknowledges and agrees that the conditions, design and operation of any equipment, machine, system or facility in which the goods provided by seller may be used is not the responsibility of Seller, and that such condition, design and operation may have a material effect upon results achieved.
- BUYER’S ASSUMPTION OF RISK. Buyer expressly acknowledges and agrees that Buyer has selected the goods which are the subject of the agreement, and that Buyer is assuming all risks and liabilities arising out of a) the choice of such goods by Buyer and b) the use by Buyer or others of such goods in any machine, equipment, process or system.
- SOLE AND EXCLUSIVE WARRANTY. Seller warrants to Buyer that the goods provided by Seller will be free from material defects in material and workmanship when delivered to Buyer. THE FOREGOING WARRANTY SHALL NOT APPLY TO DAMAGE OR DEFECTS CAUSED BY DELIVERY, STORAGE, INSTALLATION, OPERATION OR MAINTENANCE BY ANY PERSON, OR BY ORDINARY WEAR AND TEAR, AND IS THE SOLE AND EXCLUSIVE WARRANTY BY SELLER IN LIEU OF ALL OTHER WARRANTIES WHETHER WRITTEN, ORAL OR IMPLIED. SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS AND EXCLUDES ANY WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
- LIMITATION OF LIABILITY; NO CONSEQUENTIAL DAMAGES. IT IS UNDERSTOOD AND AGREED THAT SELLER’S LIABILITY WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE SHALL NOT EXCEED THE RETURN OF THE AMOUNT OF THE PURCHASE PRICE PAID BY BUYER AND UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR SPECIAL, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES. THE PRICE STATED IN THE AGREEMENT IS A CONSIDERATION IN LIMITING SELLER’S LIABILITY.
- PATENT INDEMNITY. Buyer warrants to Seller that neither any design, specification, drawing or pattern provided by Buyer or Buyer’s representatives, nor any use contemplated by Buyer of the goods supplied by Seller, infringes any patent, copyright, trade secret or other intellectual property rights, and Buyer agrees to defend, indemnify and hold Seller completely harmless from any claim of infringement.
- ENTIRE AGREEMENT. The Agreement sets forth the entire agreement between Seller and Buyer with respect to the subject matter thereof. There are no promises, representations, warranties or understandings, express or implied, which are not set forth in the Agreement. Any modification or alteration of the Agreement shall be effective only if set forth in a writing duly executed by authorized representatives of each party.
- GOVERNING LAW; FORUM SELECTION. The Agreement shall be construed and enforced in accordance with the internal laws of the State of Georgia, applicable to businesses operating wholly within that state. Any and all claims, actions or proceedings arising out of the Agreement shall be brought only in a court having a situs within, or jurisdiction over, the City of Tucker, Georgia, and Buyer hereby irrevocably submits to the jurisdiction and venue of any such court, and waives all objections to venue and convenience therein.