CONDITIONS OF SALE
1. DEFINITION OF TERMS: The interpretation of terms throughout these terms and conditions shall be in accordance with the following definitions: SELLER shall mean ELECTRA-MEDIA, INC. (EMI). BUYER shall mean the customer or recipient requesting the goods or services named in this quotation or agreement. Both BUYER and SELLER shall be Parties in this agreement and shall be bound to the conditions below.
2. GENERAL: Unless otherwise specified, all quotations are for immediate acceptance and subject to change after the stated period without further notice. All orders will be subject to approval by Seller’s Credit Department and an authorized official of seller.
3. FORCE MAJEURE: Any delay or failure in the performance by either Party hereunder shall be excused if and to the extent caused by the occurrence of a Force Majeure. For purposes of this Agreement, Force Majeure shall mean a cause or event that is not reasonably foreseeable or otherwise caused by or under the control of the Party claiming Force Majeure, including acts of God, fires, floods, explosions, riots, wars, hurricane, sabotage terrorism, vandalism. accident, restraint of government, governmental acts, injunctions, labor strikes, other than those of Seller or its suppliers, that prevent Seller from furnishing the materials or equipment, and other like events that are beyond the reasonable anticipation and control of the Party affected thereby, despite such Party's reasonable efforts to prevent, avoid, delay, or mitigate the effect of such acts, events or occurrences, and which events or the effects thereof are not attributable to a Party's failure to perform its obligations under this Agreement. Seller’s commitments are contingent on fires, strikes and other causes beyond its control.
4. ACCEPTANCE: Acceptance of customer’s order is expressly made conditional in ascent with the terms and conditions set forth herein and on attachments hereto, and they shall constitute the complete agreement between the parties. These terms and conditions may not be varied or buyer’s order terminated in any manner unless by a written agreement with legal consideration subsequently signed by an officer of the seller. Other representatives of the company are not authorized to vary the conditions herein set forth. Failure to specifically descent to these terms and conditions within a reasonable time or buyer’s acceptance of any goods covered by this acknowledgment shall constitute an acceptance of said terms and conditions and shall be controlling in every case.
5. TERMS AND DISCOUNTS: Seller’s terms are net due upon receipt of product or services or upon installation unless stated differently on the face of this form. A service charge, including interest, of 1 1/2 % per month will be charged after the due date or if buyer cannot accept product on the agreed delivery date.
6. CONTINGENCIES AND EXCEPTIONS: No liability to the seller shall result from delay in performance or non-performance caused by contingencies, happenings, or cause beyond the control of seller, including but not limited to fire, flood, storm, power failure, labor trouble or storage, war, acts of government, accidents, material shortage, equipment failures, or acts of God. Does not include installation in abnormal soil conditions nor costs related to encountering obstructions, water, spoils, toxic or hazardous wastes below the surface, nor costs of any kind incurred as a result of these situations whether related to delays, design changes, additional work and materials, alternate methods, or otherwise. Customer assumes all responsibility for removal, handling &/or disposal of spoils, toxic or hazardous wastes including asbestos. Customer is responsible for all legal services to hold EMI harmless and defend EMI in litigation arising out of or pertaining to discovering, encountering, handling, or exposing toxic or hazardous wastes as described by the U.S. Government.
7. PASSAGE OF TITLE: Title to the display system, advertising signs, devices, illumination facilities, equipment, connections, poles or pipes, structure, and improvements erected or made shall remain with seller until payment of the total purchase price by buyer. Where payment is made by check, title shall remain with seller until the checks are finally paid. Notwithstanding the fact that the same constitute real estate fixtures, the Seller shall have the right to remove said signs, structures, and improvements at any time during the term of the agreement or lease.
8. PARTIAL SHIPMENTS AND DELAY: Seller reserves the right to make delivery in installments, unless otherwise expressly stipulated in the contract for sale, and all such installments shall be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve buyer of his obligation to accept remaining deliveries. Seller, at his option, may cancel this order with respect to any undelivered equipment or extend the delivery date for a period equal to the time lost because of delayed period. Notice of this election shall be given promptly by seller. In the event seller elects to cancel the order, seller shall be released of and from all liability for failure to deliver the products. Seller will refund any down payment to Buyer, less costs incurred. In the event of suit of seller on this agreement on account of buyer’s breach thereof, seller shall be entitled to recover the costs and expenses of such suit, including reasonable attorney’s fees.
9. PERMITS: Includes coordinating and processing City Building Permit & Caltrans approval. A fee (as noted on page 1 of this agreement) is to be paid upon signing to begin the City process. Fee will be applied towards building permit fees when City Permit is approved. If approval denied EMI will refund advanced fee less cost incurred. Actual permit application fees, planning and building permit fees, lighting report fees, City inspection fees, acquisition labor fees, welding inspection fees, and final inspection report fees to be billed separately.
10. ELECTRICAL CONNECT PHONE LINE / DSL AND REINFORCEMENT: Due to the uncertainty of existing electrical power source, and phone / communication equipment, the following are to be furnished by the buyer unless otherwise specified on the front of this agreement: labor and material for primary disconnects primary circuits trenching conduits, phone line / DSL communication and associated equipment to the display’s load centers and control cabinet. Buyer agrees to pay for all electrical energy used by display system. Any reinforcements or alterations to the building or sign structure necessary for the installation of any part of the display system shall be furnished by buyer with all costs being approved by Buyer prior to commencement of reinforcement or alteration.
11. INSTALLATION: Does not include installation in abnormal soil conditions.
12. CANCELLATION: This sale agreement cannot be cancelled by the buyer except in Seller’s nonperformance of contract (acts which are not categorized in Section 3). Seller can cancel agreement with a 5 day advanced written notice to Buyer. Upon Seller’s cancellation, all payments made by Buyer will be refunded less cost incurred by Seller.
13. CARRIERS: Shipment will be FOB seller’s plant or place of business unless stated differently on the face of this form. Shipments will be by UPS whenever possible; motor freight will be used for larger items. Air freight will be used upon buyer request.
14. RISK OF LOSS: Risk of loss shall pass after delivery has been tendered to the buyer at the agreed point of delivery, or after installation of the display system if installation is included in this agreement. From the time risk of loss passes to the buyer, all loss or damage to said property or any part thereof occasioned by fire or in any other manner whatsoever shall be borne by the buyer. The seller shall cooperate fully with the buyer with respect to the buyers obtaining insurance protection for the display system.
15. INSPECTION: The buyer shall inspect the display system immediately on the arrival thereof at the agreed point of delivery or upon installation if installation is included in this agreement and shall, within five days from such inspection, give written notice to the seller of any matter or thing by reason whereof he may allege that the display system is not in accordance with this agreement. If the buyer shall fail to give such notice, the display system and any services shall be deemed to be in all respects in accordance with this agreement, and the buyers shall be bound to accept and pay for the same as set forth in this agreement.
16. WARRANTY: As specified on the front of this agreement. Seller warrants to buyer that products and any services furnished hereunder will be free from defects in material, workmanship and title and will be of the kind and quality specified in seller’s written quotation. The warranties and remedies set forth herein are conditioned upon (a) proper storage, installation, use and maintenance, and conformance with any applicable recommendations of seller and (b) buyer promptly notifying seller of any defects and, if required, promptly making the product available for correction. Seller is not responsible for damage or operating defects resulting from buyer’s neglect or abuse nor for damage resulting from lightning, earthquakes, storms or other natural disasters. If any product or service fails to meet the foregoing warranties (except title) within 30 days of shipment or installation if installation is included in this agreement, seller shall correct any such failure either its option, (i) by repairing or replacing any defective or damaged part or parts of the products, or (ii) by making available, F.O.B. seller’s plant or other point of shipment, any necessary repaired or replacement parts. Where a failure cannot be corrected by seller’s reasonable efforts, the parties will negotiate an equitable adjustment in price. The preceding terms set forth the exclusive remedies for claims (except as to title) based on defect in or failure of products or services, whether the claim is in contract, indemnity, warranty, tort (including seller’s negligence), strict liability or otherwise and however instituted. Upon the expiration of the warranty period, all such liability shall terminate and buyer shall have a reasonable time, within ten days after the warranty period, to give written notice of any defects which appeared during the warranty period. The foregoing warranties are exclusive and in lieu of all other warranties, whether written, oral, implied or statutory. No implied statutory warranty of merchantability or fitness for particular purpose shall apply. Seller does not warrant any products or services which buyer has designated.
17. PAYMENTS AND FINANCIAL CONDITION: Unless otherwise specified by the seller in its quotation or this agreement, pro rata payments shall become due without setoff as shipments are made or as work is completed at the customer’s premises. If the seller agrees to delay shipments after completion of any work, payment shall become due on the date when the seller is prepared to make shipment or complete a project phase. If the work to be performed hereunder is delayed by the buyer, payments shall be made based on the purchase price and the percentage of completion. Equipment held for the buyer shall be at the risk and expense of the buyer. If the buyer’s financial condition at any time does not justify continuance of the work to be performed by the seller hereunder on the agreed terms of payment, seller may require full or partial payment in advance. In the event of buyer’s bankruptcy or insolvency or in the event any proceeding is brought against buyer, voluntarily or involuntarily, under the bankruptcy or insolvency laws, seller shall be entitled to cancel any order then outstanding at any time during the period allowed for filing claims against the estate and shall receive reimbursement for its proper cancellation charges. The seller at its option may retain possession of equipment or products installed, repaired, modified, inspected, tested, maintained or serviced under this contract until its charges for such product or services are paid. If such charges are not paid within 60 days following completion of the work and invoicing the buyer, the seller may, upon not less than 7 days written notice by certified mail to the buyer at the buyer’s last known address, sell the equipment or products at public or private sale and apply the net proceeds to the seller’s charges. Seller’s rights under the article are in addition to all rights available to it at law or in equity.
18. LIMITATION OF LIABILITY: In no event, whether as a result of breach of contract, indemnity, warranty, tort (including seller’s negligence), strict liability or otherwise, shall seller or its suppliers be liable for any special, consequential, incidental or penal damages including, but not limited to, loss of profit or revenues, loss of use of the products or any associated equipment, damage to associated equipment, cost of capital, cost of substitute products, facilities, services or replacement power, downtime costs, or claims of buyer’s customers for such damages. The seller’s liability to buyer or its insurers on any claim of any kind (including negligence) for any loss or damage arising out of, or resulting from this agreement, or from the performance or breach thereof, or from the products or services furnished hereunder, shall in no case exceed the price of the specific part, product or service which gives rise to the claim. All such liability shall terminate upon the expiration of the warranty period.
19. INDEMIFICATION. Seller shall fully indemnify, hold harmless and defend (collectively “indemnify” and “indemnification”) Buyer and its directors, officers, employees, agents, stockholders and Affiliates (collectively, “Indemnified Parties”) from and against all claims, demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney’s fees and costs), whether or not involving a third party claim, which arise out of or relate to (1) any breach of any representation or warranty of Seller contained in this Agreement, (2) any breach or violation of any covenant or other obligation or duty of Company under this Agreement or under applicable law, in each case whether or not caused by the negligence of Buyer or any other Indemnified Party and whether or not the relevant Claim has merit.
20. INSURANCE: Seller shall maintain adequate insurance covering all his employees. At all times during the fulfillment of Product Description, the Seller shall maintain Worker’s Compensation and disability benefits for all employees, laborer’s and other persons in the performance of each and every state of Product Description fulfillment, in accordance with the provisions of the Worker’s Compensation laws. At all times during the term of the Product Description fulfillment, Seller shall, at its own cost and expense, carry Broad Form Commercial Liability with insurance companies rated no less than A-X in the Best Guide, and authorized to do business in the State of California which will indemnify and insure the Seller and the Buyer against all liabilities, including injuries and death to persons and damage to property, which may be occasioned directly or indirectly as a result of the performance of this Agreement by the Seller within the limits of two million dollars ($2,000,000) for injury and for death of any one person, and not less than two million dollars ($2,000,000) for damage to any one property. Seller shall furnish Buyer with Certificates of Insurance for workers compensation and broad commercial liability. An appropriate Certificate of Insurance, stating that such Insurance is in full force and effect and stating that Seller’s policies shall be primary and Buyer policies will be non-contributing. All policies, certificates and endorsements shall be delivered to the Buyer within 30 days of signing this Agreement. Buyer to provide all additional insured entities to Seller for fulfillment of Insurance clause.
21. TAXES: In addition to any price specified herein, buyer shall pay the gross amount of any present or future sales, use, excise, value-added, or other similar tax applicable to the price (above and beyond the taxes included in agreement price on page of 1 of this agreement) sale or delivery of any products or services furnished hereunder or to their use by seller or buyer, or buyer shall furnish seller with evidence of exemption acceptable to the taxing authorities.
22. ASSIGNMENT: The delegation or assignment by buyer of any or all of its duties or rights hereunder without the prior written consent of the seller shall be void. Seller consent shall not be unreasonably withheld or delayed.
23. RETURNED GOODS: Goods may not be returned without the prior written consent of the seller.
24. CLAIMS AND FREIGHT DAMAGE: It is the buyer’s responsibility to inspect packing and contents for evidence of damage during shipment. If damage is evident, file a claim with the carrier.
25. DISCLOSURE OF INFORMATION: Any information, suggestions or ideas transmitted by buyer to seller in connection with performance hereunder are not to be regarded as secret or submitted in confidence except as may be otherwise provided in a writing signed by a duly authorized representative of seller.
26. CLERICAL ERRORS: Stenographic and clerical errors are subject to correction.
27. INTERPRETATION: This writing is intended by the parties as a final expression of their agreement and as a complete and exclusive statement of the terms thereof. No course of prior dealings between the parties and no usage of trade shall be relevant or admissible to supplement, explain, or vary any of the terms of this agreement. Acceptance of, or acquiescence in a course of performance rendered under this or any prior agreement shall not be relevant or admissible to determine the meaning of this agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and an opportunity to make objection. No representations, understandings, or agreements have been made or relied upon in the making of this agreement other than those specifically set forth herein. This agreement can be modified only in writing signed by the parties hereof, or their duty authorized agents. This agreement is effective from the date it is accepted by an officer of the seller.
28. COUNTERPART ORIGINALS: This Agreement may be signed in one or more counterparts. Each counterpart will be deemed to be an original. All counterparts when taken together will constitute the same agreement.
EMI Sale Terms – 10/10/16