These Terms and Conditions of Sale (the "Terms") govern your ("Buyer's") purchase of any products (the "Products") or services (the "Services") from Displayit Holdings, LLC, a Delaware limited liability company, with a principal place of business at 4345 Hamilton Mill Rd, Suite 100, Buford, GA 30518 ("Seller"). Buyer's purchase of the Products or Services is limited to the terms and conditions contained herein. If these Terms are first tendered to Buyer before Buyer tenders a purchase order or similar document to Seller, these Terms are in lieu of any terms later submitted by Buyer and Seller rejects all additional or different terms and conditions of Buyer, whether confirmatory or otherwise. If Seller tenders these terms after the tender by Buyer of other terms, whether as part of a purchase order or otherwise, then Seller's acceptance of any offer by Buyer associated with Buyer's terms is expressly conditioned upon Buyer's acceptance of these Terms exclusively and to the exclusion of any pre-offered Buyer terms or conditions, regardless of whether these Terms contain any terms additional to, or different from, any terms pre-offered by Buyer. Buyer's performance, or acceptance of, or payment for, any Products or Services from Seller will constitute Buyer's acceptance of these Terms exclusively. If there is an executed written sales agreement or quotation in effect between the parties (a "Sales Agreement"), these Terms form a part thereof. Waiver by Seller of any breach, remedy or provision of these Terms shall not be construed to be a waiver of any succeeding breach or any other provision or legal remedy of Seller. The section headings of these Terms are for ease of reference only and shall not be admissible in any action to alter, modify or interpret the contents of any section hereof.
2. Price and Payment
2.1 Unless a Sales Agreement between the parties states otherwise, one (1) business day prior to shipment of the Products, Seller shall invoice Buyer for all Products and Services purchased by Buyer. Net payment is due on the date of invoice. Buyer shall pay the full amount of each invoice, without discount, adjustment or set-off, so that such payment is deposited into Seller's account within the agreed upon net payment days. If Buyer disputes the accuracy of any portion of any invoice, Buyer shall promptly notify Seller in writing, specifying the amount in dispute and the reasons therefor. If Buyer fails to notify Seller within ten (10) business days following the date of any invoice, any claims with respect to such invoice shall be deemed to be barred and to have been waived, and the invoice shall be deemed accepted in all respects by Buyer. In the event of a disputed invoice, Buyer shall nevertheless make timely payment of Seller's invoice, and the parties will promptly attempt to resolve the dispute, whereupon, if Seller determines that Buyer is entitled to a refund, Seller shall promptly issue a credit to Buyer or, at Seller's option, a refund any overpayment. Invoices shall be paid by credit card (Visa, MasterCard, Amex or Discover). Seller may charge a surcharge fee of three percent (3%) for credit card payments.
2.2 All prices for Products are subject to change without notice and are therefore considered not binding. In the case of written quotations, such quotations shall be valid for a period of thirty (30) days. Possession of certain price information by any representative or agent of Buyer is not to be construed as an offer to sell Buyer the Products at the particular price set forth therein.
2.3 If Buyer fails to comply with any of the stated payment terms, Seller, without limitation, may: (i) suspend deliveries until all payments are made in full; (ii) reclaim delivered Products; (iii) place Buyer on a cash-in-advance status; (iv) exercise rights of recoupment or setoff with respect to any sums due by Seller or its affiliates to Buyer or its affiliates; and/or (v) initiate legal action to recover sums due and owing. Seller shall have the right to collect interest on all past due amounts at the lower of (a) 1.5% per month (18% per annum) or (b) the maximum rate permitted by applicable law. In the event that Buyer tenders payment to Seller or its agents in a manner purported by Buyer to serve as payment in full of an invoice, Seller or its agent's acceptance of such payment shall not act as an accord and satisfaction and shall be without prejudice to Seller's right to pursue full payment of such invoice, in accordance with applicable law.
The price agreed upon for the Products is exclusive of taxes, duties and other charges that may be levied or due thereon, all of which shall be the responsibility of, and be borne by the Buyer, unless otherwise agreed to in writing by the parties. Buyer agrees to pay sales or use taxes or any other taxes, charges, duties or fees required to be paid by the Buyer or collected by Seller by reason of this sale, or to provide Seller with a valid tax exemption certificate; provided that Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personnel or real or personal property or other assets. Buyer agrees to indemnify and hold Seller harmless from any liability and expense by reason of Buyer's failure to pay any required taxes, duties, charges or fees in respect to the Products sold hereunder.
4. Delivery, Title, Risk of Loss, and Shipping
Unless otherwise agreed by Seller in writing, shipping terms shall be FOB Seller's factory or warehouse. Any shipping date provided by Seller is the Seller's best estimate and will not operate to bind Seller to ship or make deliveries on such date. All shipments shall be subject to Seller's then current shipment terms. If express shipment (non-ground) is requested by Buyer, Buyer may request a refund for the shipping amount in the case the shipment does not meet the delivery date. Ground shipments are not guaranteed. Buyer must inspect the Products at the time of receipt for signs of damage, discrepancies or a shortage. Title to the Products and risk of loss of the Products shall pass from Seller to Buyer upon tender of the Products to the carrier for shipment.
Return of any Product must be authorized by Seller at all times.
5.1 Returns for warranty reasons are subject to the terms and conditions in Section 7. Seller will solely determine if the Product qualifies as a return for warranty reasons. If Product does qualify for the Warranty, Seller will pay all return freight costs to ship Product to Seller's facility.
5.2 Within thirty (30) days from delivery of a Product, Buyer may return a Product that does not qualify for the Warranty for a refund less a fifteen percent (15%) restocking fee. Any applicable shipping and service charges (e.g. graphic design) associated with the original purchase will not be refunded. The Buyer is responsible for all return freight costs to ship Product to Seller's facility. The refund shall be processed within ten (10) business days from the date of arrival of the return at Seller's facility. Clearance items, discontinued items, bulk orders, custom orders and graphic only orders are not eligible for return.
6. Obligations of Buyer
If Seller's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
7.1. Seller agrees to use commercially reasonable efforts to comply with all material applicable laws and regulations including, but not limited to, those laws and regulations governing the manufacturing, packaging, labeling, shipping and safety of the Products. Seller further warrants to Buyer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
7.2 As Buyer's sole and exclusive remedy and Seller's entire liability for any breach of the foregoing warranty, Seller will, at its sole option and expense, either refund the purchase price paid or replace the Product which fails to meet this warranty upon return of the nonconforming Product, or re-perform the non-conforming services; provided Buyer notifies Seller of such noncompliance in writing and within the time period and subject to the conditions specified in this Agreement.
7.3 IT IS EXPRESSLY AGREED THAT THE WARRANTIES IN THIS SECTION ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND THAT SUCH OTHER WARRANTIES ARE EXPRESSLY EXCLUDED. SELLER ASSUMES NO LIABILITY FOR DIRECT OR INDIRECT DAMAGES, LOST PROFITS, OR ANY OTHER CONSEQUENTIAL DAMAGES.
Any claims for any reason, shall be made by Buyer in writing, with supporting documentation, to Seller: (i) relating to the Services, within ten (10) days after performance of the Service; (ii) relating to the return of the Products not qualifying for the limited Warranty described in Section 7, within thirty (30) days from the delivery of the Product; (iii) relating to the Products qualifying for the limited Warranty described in Section 7, within one (1) year from the delivery of the Product. If a claim is not made within such time period, such claim shall be deemed to be barred and to have been waived, and the Products and/or Services shall be deemed accepted. In the event of a dispute regarding the quality of any Products or Services delivered under this Agreement, Seller shall be afforded the opportunity to investigate, identify the questioned Products and/or Services, recommend curative action and take such other steps as may be reasonable to correct the alleged issue in compliance with this Agreement. If Seller determines, in its sole discretion, that it is not commercially feasible to replace the non-compliant Products or re-perform the non-compliant Services, it may issue a refund of the amounts paid for such Products and/or Services at the pro-rata contract or list price. At no time may Buyer withhold payment for invoices from other lots, shipments or orders due to a dispute on another lot, shipment or order of the Products. THE REMEDIES SET FORTH IN THIS SECTION 8 SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 7.
9. Intellectual Property
All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product, and other materials that are delivered to Buyer under this Agreement or prepared by or on behalf of Seller in the course of performing the Services, including any items identified as such in any order confirmation (collectively, the "Deliverables") shall be owned by Seller, with the exception of any of Buyer's Confidential Information which may be incorporated therein. Seller hereby grants Buyer a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Buyer to make reasonable use of the Deliverables and/or Services.
10. Limitation of Liability
IN NO EVENT WILL SELLER BE LIABLE TO BUYER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, DELAY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF DIRECT OR INDIRECT PROFITS, REVENUE, OR USE, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, EVEN IF BUYER OR ANY OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SELLER'S AGGREGATE LIABILITY TO BUYER EXCEED ALL AMOUNTS ACTUALLY PAID BY BUYER TO SELLER IN THE SIX MONTHS PRECEDING THE INCIDENT GIVING RISE TO SUCH LIABILITY OR ONE HUNDRED THOUSAND (100,000) DOLLARS, WHICHEVER IS LESS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF THE LIMITED REMEDY SET FORTH IN SECTION 8.
Buyer will not disclose to third persons any proprietary or confidential information ("Confidential Information") of Seller concerning its business and operations, including without limitation, pricing information, for a period of one (1) year from the date such confidential information was learned. The obligations of confidentiality in this Section 11 do not apply to Confidential Information to the extent that the Confidential Information becomes readily ascertainable by proper means by the public other than through breach of this Section 11 by Buyer.
In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement and such failure continues for thirty (30) days after Buyer's receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses designated by the parties in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), certified or registered mail (in each case, return receipt requested, postage prepaid), or by electronic communication (with confirmation of transmission). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
4345 Hamilton Mill Road
Buford, GA 30518
14. Choice of Law
These Terms and all accepted orders shall be construed in accordance with the laws of the State of Georgia, United States of America without regard to its conflict of law principles. Buyer agrees that any and all disputes with Seller, including contract and tort claims, shall be resolved in the state and federal courts situated in Georgia, and that these courts shall have the exclusive jurisdiction over all such disputes and Buyer consents to the personal jurisdiction in these courts. Any action brought by Buyer against Seller shall be within sixty (60) days after the cause of action arises or it shall be deemed forever waived.