All Sales of Breathing Color Products are Governed by our Terms and Conditions of Sale, set forth as follows:
1. PRICE: There
shall be added to the prices shown, the amount of any sales, use, or other taxes however designated, levied or based on such prices or on this Agreement or the sale or use of the property sold hereunder (hereafter the "equipment"), including state and local privilege or excise taxes based on gross revenue and any taxes or amounts in lieu thereof paid or payable by Seller in respect of the foregoing, exclusive however of taxes based on net income. Any personal property taxes assessable on the equipment from the date of acceptance of this Agreement shall be borne by the Customer. Seller reserves right to charge 1.5% interest per month on all invoices unpaid after the Due Date.
2. TITLE AND SECURITY INTEREST: Seller hereby retains title to the equipment until the Customer performs all of the obligations hereunder including, without limitation, payment in full of the purchase price. In addition, Seller retains a security interest in the equipment, including all accessories and replacements thereto and the proceeds thereof to secure performance of all such obligations of Customer. Customer agrees to execute any and all documents as may be required by Seller to perfect its security interest, and agrees to pay all filing fees.
3. RETURNS: It is the Customer's responsibility to assure compliance to specification of all goods received. Returned Material Authorization (RMA) must be granted for all returned goods. Such goods are subject to restocking fee which may include return freight to vendor. No returns will be accepted after 30 days from invoice. Credits expire after 6 months if unused.
4. RISK OF LOSS AND INSURANCE: All sales to customer are FOB shipment origin. All risk of loss and destruction of or damage to all the equipment by reason of theft, fire, water or any other cause shall pass to Customer upon shipment of the equipment to the Customer, and the occurrence of any such casualty shall not relieve the Customer from making payment of the balance of the purchase price. It shall be the obligation of the Customer to obtain and maintain
sufficient insurance to cover the value of the equipment against loss, destruction or damage by reason of any cause, and to name Seller as an additional insured on said policy in order that Seller shall obtain the proceeds of any claim for such loss, damage or destruction to the extent of its outstanding balance with the Customer.
5. INSTALLATION AND DELIVERY: Unless a specific fee is set forth on the face hereof, all items are sold without installation or delivery. If an installation fee is charged, the Customer is to provide a suitable installation environment as specified by Seller. Customer shall not move the equipment from the address set forth on invoice without written consent of Seller, or payment in full of all balances are due.
6. SOFTWARE AND EQUIPMENT: All of the terms and conditions herein apply equally to software and equipment. All software and equipment is sold "as is" without any warranty except as may be provided by the manufacturer, seller does not warrant and specifically disclaims any warranty of merchantability, fitness for a particular purpose or otherwise with respect to any modification or configuration of software or equipment as may be requested by customer.
Manufacturer's warranties are sole responsibility of manufacturer.
7. DISCLAIMER AND LIMITATIONS OF LIABILITY:
A. Sellers liability to the customer for any loss, damage or expense of any kind, resulting from, but not necessarily limited to, the equipment, or by any defect therein, the use, maintenance thereof, any servicing, or adjustment thereto, response time, repair time, repeated machine malfunction, negligence, or any other cause whatsoever, regardless of the form of action, whether in tort or in contract, shall be limited to the actual charge listed on the face of this agreement without interest. All product guarantees/warranties are administered directly by the manufacturers and Seller has no responsibility for any
servicing or adjustment thereto, response time, repair time, repeated malfunction, negligence, or any other related cause.
B. Sellers will in no event be liable for lost profits or other consequential damages even if seller or its representatives have been advised of the possibility of such damages or for any claim against the customer by any other party.
C. Seller will in no event be liable for any loss, damage, or expense of any kind resulting from seller or any of its employees, representatives or sales persons rendering technical or other advice or representation in connection with the performance of any computer hardware, computer software or any combinations thereof unless it is specifically contained in this agreement.
D. No action, regardless of form, arising out of this agreement may be
brought by either party more than 1 year after the cause of action has
E. Seller makes no claim or warranties on longevity or integrity of any
ink or media from itself and/or any manufacturer, or application
thereof. Seller will in no event be liable for the quality of prints
produced or any other aspect of print quality, image longevity,
lightfastness, water fastness or any application related problems.
F: Seller is not responsible for keeping Customer informed or up to
date on software or firmware upgrades or enhancements. It is Customer’s
responsibility to check manufacturer’s web sites for the latest
software and firmware drivers and upgrades, as well as to understand
the details of manufacturer’s upgrade policies.
Customer shall indemnify Seller
against and hold Seller harmless from any and all claims, actions,
proceedings, expenses, damages or liabilities including attorney's
fees, arising in connection with the equipment, including, without
limitation, its manufacture, selection, purchase, delivery, possession,
use, operation, or return and the recover of claims under insurance
9. REMEDIES UPON DEFAULT:
Failure of Customer to
perform its obligations hereunder including, without limitation payment
in full of the purchase price for the equipment or the insolvency,
bankruptcy, assignment for the benefit of creditors, or dissolution,
liquidation, or winding up of the business of Customer shall constitute
a default under this Agreement, and shall afford to Seller the right to
immediately recover the equipment without notice by the Customer in
addition to all the remedies of a secured party under the Uniform
Commercial Code of the State of Texas. Upon request by the Seller
after default, Customer shall assemble the equipment at the time, date
and place of Seller's choosing within the State of Texas for
retaking by Seller. Seller shall have the right upon default by
Customer to enter upon Seller's premises or any other place where the
equipment may be located, whether or not locked or secured, in order to
repossess the subject equipment so long as this may be accomplished
without a breach of the peace. Upon Seller's remarketing of the
equipment in a commercially reasonable manner, Seller shall be entitled
to recover the deficiency on its original contract with Customer if any
from Customer hereunder in addition to any other remedy available
hereunder or at law or equity.
10. GOVERNING LAW:
This Agreement will be
governed by the laws of the State of Texas, and any action brought
pursuant to this agreement shall be brought in Austin,
11. PLACE OF PAYMENT: All payments
to be made by Customer to Seller under the terms of this contract are
to be made at the Seller's place of business as set forth on the face
of this document, or such other place as the Seller shall direct.
12. ATTORNEY'S FEES AND COSTS OF REPOSSESSION: In the event it becomes necessary for Seller to enforce the terms and
conditions of this Agreement, including Seller's disclaimers and
limitations of liability, Seller shall be entitled to recover all of
its costs including all costs of repossession, and actual attorney's
fees in all manner of collection and in trial and appellate levels.
13. INABILITY TO PERFORM: Seller shall not be
required to perform its obligations under this Agreement, or be liable
for its failure to perform, if nonperformance is caused by any Act of
God, war, civil disturbance, strike, work stoppage, transportation,
unavailability of equipment, contingencies, power failures, laws,
regulations, ordinances, acts or orders of any governmental agency or
official thereof, or any cause not within the control of Seller.
14. LIQUIDATED DAMAGES: All payments and
deposits made by customer as set forth in this agreement are
non-refundable and shall constitute liquidated damages in the event of
a customer's default, since the amount of damages is incapable of being
15. VALIDITY OF AGREEMENT: If any provision or
provisions of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired
16. CUSTOMER: Understands and agrees that neither
Seller nor any of its salespersons or employees are agents for any
finance company utilized by the Customer in the purchase or lease of
the property listed on the face hereof.
17. AGREEMENT: This Agreement contains the
entire Agreement between the parties hereto with respect to products
purchased. No promise, representation, warranty or covenant not
included in Agreement has been or is relied on by either party. Each
party has relied on its own examination of this Agreement and the
provisions hereof and the counsel of its own advisors. The failure or
refusal of either party to inspect the agreement or other documents or
the failure to obtain legal or other advice relevant to this
transaction constitutes a waiver of any objections, contentions, claims
that might have been based upon such reading, inspection or advice. No
modification or amendment to this Agreement shall be of any force or
effect unless in writing executed by the Customer and authorized
representative(s) of Seller. This Agreement is not assignable by
Customer without the prior written consent of Seller. The placement of
order with , or the delivery or acceptance of products or service from
Seller constitutes acceptance of above terms.