ORDER. Creative and Customer agree that orders for equipment, goods, materials and supplies (together “Merchandise”), and Services shall be placed by Customer or its agents by signed writing or, in the sole discretion of Creative, orally, in which case the Merchandise or Services may be delivered, installed or performed without obtaining the signature or other written acknowledgment of Customer. A credit application is required for all Customers.
DEPOSIT. A 50% deposit is required on all orders.
INVOICING, PAYMENT AND INTEREST. Merchandise will be invoiced upon delivery to Customer’s site. Services will be invoiced upon substantial completion of the performance of the Services. Payment terms are Net 30 Days from date of invoice. Customer understands that all sales on credit are due and payable within these credit terms and agrees to pay interest at the rate of 1½% per month (18% per annum) or the highest lawful rate, whichever is lower, on all past due amounts and a twenty-dollar ($20) fee on all returned checks. Open account privileges may be suspended if delinquency occurs. Customer agrees to pay all costs of collection, including, without limitation, attorney’s fees and court costs. In the event of open punch list items, the Buyer agrees to withhold no more than 10% of invoice total, payable upon completion of punch list items. Partial Deliveries: No payment shall be withheld on any invoice because of partial delivery of the entire order unless special terms are negotiated in writing prior to order placement.
PURCHASE MONEY SECURITY INTEREST. Customer agrees to grant to Creative a purchase money security interest in any and all Merchandise ordered pursuant to this Credit Application and Agreement or any other sales agreement in order to secure the payment of the sales price and any other costs or charges under the terms of the applicable agreement. Customer shall sign and deliver to Creative such security agreements and financing statements as Creative may reasonably request to perfect its security interest.
CHANGES IN STATUS, NOTICE. Customer agrees to notify Creative in writing within seven (7) days of any material change in the ownership or form of Customer’s business or in its financial position. Failure to provide notice hereunder shall constitute an event of default, and, at the option of Creative, all sums due hereunder or under any other related agreement between the parties shall become immediately due and payable.
LIMITED WARRANTY/EXCLUSIVE REMEDY. CREATIVE WARRANTS THAT THE TITLE OF MERCHANDISE SOLD IS GOOD AND TRANSFER IS RIGHTFUL. CREATIVE WILL, IF REQUESTED AND ABLE, ASSIGN TO CUSTOMER ANY WARRANTIES SUPPLIED OR FURNISHED BY THE MANUFACTURER OF ANY GOODS PURCHASED BY CUSTOMER. CREATIVE DISCLAIMS ANY OTHER WARRANTY OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO OTHER WARRANTIES, EXCEPT AS MAY BE AGREED IN WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF CREATIVE. CUSTOMER’S EXCLUSIVE REMEDY FOR CREATIVE’S BREACH OF THESE TERMS AND CONDITIONS SHALL BE REPAIR AND REPLACEMENT OF NON-CONFORMING MERCHANDISE AND SHALL UNDER NO CIRCUMSTANCES INCLUDE INCIDENTAL OR CONSEQUENTIAL DAMAGES. Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Merchandise. For the avoidance of doubt, CREATIVE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; or (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
LIMITATION OF LIABILITY. LIMITATION OF LIABILITY. IN NO EVENT SHALL CREATIVE BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL CREATIVE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO CREATIVE FOR THE MERCHANDISE SOLD HEREUNDER.
INDEMNITY. Customer agrees to indemnify and save harmless Creative from any and all loss or claims for loss or damage to persons or property caused by Customer’s misuse or Customer’s defective installation of the Merchandise. Acts beyond reasonable control: Seller shall be excused from is inability to perform as a result of any prohibition, failure, interruption or delay in manufacture or delivery which may be occasioned by sabotage, fire, flood, explosion, labor disputes, strike, work stoppage, insurrection, war, Act of God, shortage of supplies or other cause beyond Seller’s control. In the event of any such prohibition failure, interruption or delay, Seller may, at its option extend the anticipated delivery schedule of terminate this Agreement, in whole or in part IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGE OR CLAIMS RESULTING FROM FAILURE OR DELAY IN DELIVERY OF THE GOODS.
DELIVERY BY CREATIVE NOT REQUIRED. In the event that delivery by Creative is not required, title to the Merchandise, and the risk of loss, shall pass to Customer, and the Merchandise shall be deemed for all purposes to have been delivered to Customer, when the Merchandise is delivered by Creative to a common carrier for transportation to Customer.
DELIVERY BY CREATIVE REQUIRED. In the event that delivery by Creative is required, the following provisions shall apply
• Risk of Loss. Subject to the provisions of “Storage” below, title to the Merchandise, and the risk of loss, shall pass to Customer upon delivery of the Merchandise inside the curb or property line of the delivery site whether or not further installation is required.
• Condition of Job Site. Customer shall be responsible for providing a job site which is safe, accessible, clean, clear and free of debris prior to installation. For installation of electronic equipment, the installation site must be clean, dust free, low humidity, protected from water, and temperature controlled. Failure to provide the proper environment could delay installation. Electronic Equipment not properly protected, exposed to dirt, dust, extreme heat/cold, or any other damaging environmental condition, may void the manufacturer Creative warranty. Customer is responsible for bringing power and network devices.
• Job Site Services. Electric current, heat, hoisting and/or elevator service shall be furnished by Customer. Adequate facilities for off-loading, staging, moving and handling of Merchandise shall be provided by Customer.
• Delivery During Normal Business Hours. Delivery and installation shall be made during normal working hours. Additional labor costs resulting from work at other times (overtime work) which is performed at Customer’s request will be billed at Creative’s standard rates and shall be paid by Customer.
• Delays. If the Merchandise cannot be installed on the installation date by reason of the unavailability of premises, causes beyond the control of Creative, or delays caused by Customer, then Creative (i) shall have a reasonable time to install the Merchandise after the premises are available or after any other causes of delay beyond the control of Creative have been eliminated, and (ii) the Merchandise shall, at Creative’s option, be stored by Customer or by Creative in its warehouse according to the provisions of “Storage” below until installation can be resumed. Any delay as described above shall not extend or otherwise affect the payment terms as provided herein.
• Erection and Assembly. Unless otherwise stated in writing, Creative’s sales price assumes that all on-site labor to erect and/or install any Merchandise or labor to provide any service will be performed by non-union personnel at other than prevailing wages.
• Protection of Delivered Goods. Once delivered, Buyer is responsible for security and protection of goods at the job site. Any loss of damage by weather, other trades such as painting or plastering, fire, theft, or other elements out of the control of the Buyer and/or harmless from loss for such reason.
• Installation Cancellation Fees. A minimum of 4 hours/travel per man cancellation fee will be charged in the event Buyer cancels installation on date of install or after installation crew has arrived at the job site.
STORAGE. Creative will coordinate shipments with installation dates. Should Customer be unable to accept Merchandise and storage at Creative be required, Customer agrees to pay labor and storage at Creative’s standard published rates. If no storage charge is paid, risk of loss to the Merchandise shall be deemed to have passed to Customer. Merchandise priced as a drop shipment and not received by Customer as such will be subject to a special handling and redelivery fee.
ACCEPTANCE. Promptly following either (i) receipt of the Merchandise if installation is not required or (ii) completion of installation by Creative or its agent if installation is required, Customer shall inspect the Merchandise and shall, within five (5) business days thereafter give written notice to Creative of any defect or other reason Customer believes the Merchandise is not in accordance with the terms of this or another applicable sales agreement. If Customer shall fail to give such notice within such time period, it shall be deemed to have accepted the Merchandise.
CANCELLATION AND RETURNS. An order cannot be canceled or returned except by mutual written consent between Customer and Creative. All canceled orders and returned Merchandise are subject to restocking, cancellation and handling charges.
TAX EXEMPT SALES. Customer understands that an actual copy of its tax exemption certificate is required to process tax exempt sales.
GOVERNING LAW/CONSENT TO JURISDICTION. This Agreement and all transactions between Creative and Customer shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia without regard to conflict of laws principles. Creative and Customer agree that any action or proceeding regarding any agreement or transaction between the parties shall be commenced and maintained in any appropriate court in Hanover County, Virginia, and Customer waives any rights to have such action brought in any other jurisdiction. Service of process may be made at the address listed on the front of this Credit Application and Agreement unless changed in writing. Customer waives its right to a trial by jury. Any provision of this or any other agreement between Creative and Customer which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction. The parties agree that, at the option of Creative, any dispute under this application or any agreement between the parties shall be subject to mediation or binding arbitration according to the commercial rules of the Uniform Arbitration Act, in Richmond, Virginia. Arbitration, if elected by Creative, shall not be a condition precedent to litigation and the election to arbitrate by Creative shall in no way preclude Creative from seeking and obtaining any prejudgment remedy against Applicant.
ASSIGNMENT. This Credit Application and Agreement shall be binding upon Creative’s and Customer’s successors, assigns, heirs, estates and affiliated companies; provided however, Customer may not assign its rights hereunder and any such attempted assignment shall be void and of no force or effect.
MODIFICATION/TERMINATION, ETC. Customer understands that Creative’s sales personnel are not authorized to negotiate, alter, amend or modify any credit terms for payment of any amount after delivery is complete. These Terms and Conditions may not be modified except in writing signed by both Customer and Creative and shall supersede any prior oral or written proposals or agreements, with respect to the subject matter contained herein. Addenda may be attached to these Terms and Conditions to address specific and unique transactions. Such addenda will be signed by Creative and Customer and be incorporated into this agreement.
LEGAL FEES. Should either party incur any expense in enforcing any terms, covenants, conditions, representations or warranties of this agreement, the party in default will pay all expenses so incurred including reasonable attorney’s fees.