TERMS
TERMS AND CONDITIONS OF SALE
All terms and prices are subject to change without notice.
Any invoice, quote, sales estimate, or statement of work submitted with these Terms and Conditions of Sale (collectively, the “Invoice”) and these Terms and Conditions of Sale (collectively with the Invoice, the “Contract”) are between Event Promotion Supply, Inc. d/b/a EPS-Doublet (“EPS-Doublet”) and the customer to which these Terms and Conditions of Sale and any Invoice are delivered (“Buyer”).
1. Agreement. Buyer accepts this Contract by: (a) executing a separate agreement with EPS-Doublet that incorporates these terms and conditions; (b) delivering a purchase order for Products (defined below) with quantities and delivery dates acceptable to EPS-Doublet; (c) accepting delivery of the Products; or (d) paying the price for the Products as set forth in the Invoice, whether prior to delivery or not as agreed to by the parties and/or set forth in the Invoice, whichever of the four acceptance methods comes first. Any purchase offer, whether oral or in writing, any counteroffer or proposed addition to or supplement of, or any material variance from, the material terms and conditions of this Contract are hereby expressly objected to and rejected. If this Contract is responsive to a prior offer by Buyer, then this Contract shall be deemed an acceptance of such offer limited to the material terms and conditions stated in this Contract, and any additional or supplemental terms or any material variance from the terms and conditions of this Contract are expressly objected to and rejected. Any non-material variance from the terms of this Contract proposed by Buyer shall not operate as a rejection of this Contract, and shall be deemed a part of this Contract.
2. Products. Buyer agrees to buy, and EPS-Doublet agrees to sell, the products described in the Invoice (the “Products”) or, if not, pursuant to any acceptable orders placed by Buyer under this Contract. Buyer hereby expressly agrees that any estimate provided to Buyer by EPS-Doublet with respect to the amount of merchandise or other material contemplated to be used in any given application or project is only a rough estimate and shall not, in any event or for any purpose, be deemed to be a representation or warranty that the actual required amount of merchandise or other material will not vary from such estimate. In this regard, Buyer hereby expressly agrees that Buyer shall be responsible to determine, through its own efforts, the amount of merchandise or other material actually needed for such application or project. To the extent Buyer provides any product specifications to EPS-Doublet, Buyer grants EPS-Doublet the right to use any such specifications to fill orders placed by Buyer in connection therewith. If Buyer requests any changes in specifications or designs relating to any Products, delivery schedules shall be revised as necessary and an equitable adjustment shall be made in the price. Prices and delivery of Products for which Buyer furnishes material or equipment are based on these items being received within the agreed time and in the quantities and conditions specified. If defects are found in the material or equipment furnished by Buyer, EPS-Doublet will notify Buyer and charge for all expenses incurred up to the point of discovery of the defective material or equipment. Inspection and corrections of defective material or equipment will be made at Buyer’s expense. If minor repairs can be repaired by EPS-Doublet, then EPS-Doublet reserves the right to make an extra charge to cover repair work. Should EPS-Doublet spoil any material or equipment furnished by Buyer, EPS-Doublet shall assume only the loss of its own work.
3. Price. Prices are described on the Invoice and are effective for the period set forth on the Invoice or, if not specified, until otherwise changed, which may occur at any time without notice to Buyer. Prices exclude all federal, state, or local taxes, and therefore such prices are subject to increase in the amount of any such tax (excluding tax on net income) that EPS-Doublet may be required to collect or pay upon the sale or delivery of the Products. Prices are, and all payments shall be made, in the currency set forth in the quote or, if none, in United States Dollars.
4. Payment Terms. Buyer shall pay EPS-Doublet the prices as set forth on the Invoice. EPS-Doublet requires pre-payment of orders unless otherwise agreed to in a writing signed by both parties. All past due payments are subject to a monthly finance charge equal to the lesser of (i) one and one-half percent (1.5%) of the outstanding amount due, and (ii) the highest maximum rate permitted by applicable law. Buyer shall make all payments irrespective of whether Buyer has made or may make any inspection of any of the Products. If Buyer fails to make any payment when due, EPS-Doublet may cancel or reschedule deliveries of the Products. Further, if Buyer fails to make any payment when due, EPS-Doublet may (a) take possession of the Products wherever found (and, for this purpose, enter upon any property occupied or in the control of Buyer); and (b) sell, lease, or otherwise dispose of any or all of the Products. The proceeds of such sale, after deducting EPS-Doublet’s expenses in taking, storing and selling the Products shall be applied to the payment of Buyer’s obligations hereunder and any remaining surplus shall be paid to Buyer. If a deficiency exists between the net proceeds from the sale of the Products and Buyer’s obligations hereunder, then Buyer, upon demand, shall promptly pay the amount of such deficiency to EPS-Doublet. EPS-Doublet’s rights under this section shall be in addition to all other rights and remedies available to EPS-Doublet upon Buyer’s default. Buyer shall be liable for all expenses attendant to collection of past due amounts, including attorney’s fees. Deposits are not refundable.
5. Delivery Terms. Unless otherwise stated in a writing signed by an authorized EPS-Doublet representative, (a) all domestic deliveries shall be made F.O.B. EPS-Doublet’s warehouse in Denver, Colorado, USA and risk of loss of such Products shall transfer to Buyer upon delivery to the freight carrier; and (b) all international deliveries shall be made EXW EPS-Doublet’s warehouse in Denver, Colorado (Incoterms 2010), EPS-Doublet shall present the Products to the carrier, and risk of loss of such Products shall transfer to Buyer upon presentation. EPS-Doublet shall attempt to meet the requirements of Buyer’s delivery schedule but EPS-Doublet shall not be in default of performance due to a delay of reasonable duration resulting from any cause. Buyer shall pay, or reimburse EPS-Doublet for, all amounts due for import and export licenses and permits, custom charges and duties, penalties, freight insurance, and all other shipping expenses. Buyer shall comply with the provisions of the United States Government’s Export Administration regulations and related documentation requirements and internal control procedures. Unless otherwise instructed, selection of carrier and routing of all shipments shall be at EPS-Doublet’s sole discretion. Shipment dates for export sales are approximate and are subject to receipt of all necessary Buyer information, and all necessary licenses, permits and other documents. If a shipment of Products is delayed beyond the originally scheduled shipping date because of (a) a request from the Buyer, (b) the lack of shipping instructions from the Buyer, or (c) the non-receipt of material to be supplied by the Buyer, then Buyer shall reimburse EPS-Doublet for any and all expenses incurred by EPS-Doublet as a result of such delay. In such event, Buyer also agrees to pay EPS-Doublet a deferral fee equal to 1.5% of the amount of the order per month. Delivery dates are estimates made in good faith and are predicated on conditions existing at this time. Estimated delivery dates are approximate and cannot be guaranteed. Any deviation from the estimated delivery dates will not impose any liability on EPS-Doublet.
6. Inspection and Acceptance. Buyer shall immediately inspect the Products upon delivery and report any product claims of any nature, including shortages, within seventy-two (72) hours of delivery, or else the Products shall be deemed irrevocably accepted and such claims shall be deemed waived. In the event of source inspection by Buyer, EPS-Doublet reserves the right to designate the place within the facility where inspection may be performed and to deny access to areas and processes considered proprietary to EPS-Doublet. Buyer shall report claims for any problems with billing statements and invoices in writing within ten (10) days of the date of the statement or invoice, as applicable, or else such claims shall be deemed waived.
7. Returns. Buyer may only return (a) regularly stocked, non-customized items in their original, saleable condition and (b) items that are damaged or contain errors and have been reported as such by Buyer within seventy-two (72) hours of Buyer’s receipt of the Products. Unless expressly authorized by EPS-Doublet, Buyer may not return any customized or special orders or any clearance, discontinued, or other similar items. Buyer shall initiate all returns within fifteen (15) days of Buyer’s receipt of the Products. Buyer shall arrange and pay for all return shipping in the original product containers, even if the return is rejected by EPS-Doublet. Returns not in compliance with this Section will be rejected, and, notwithstanding anything contained herein to the contrary, EPS-Doublet may reject any return in its sole discretion. For all returns of undamaged items, Buyer shall pay a 15% restocking fee.
8. Title. Title to the Products shall stay with EPS-Doublet until EPS-Doublet receives payment in full for such Products. Until then, EPS-Doublet reserves the right to reclaim possession of the Products, but neither the reservation of that right, nor the passage of title, will affect Buyer’s obligation to make timely payment as provided for herein. Buyer hereby recognizes that EPS-Doublet retains all right, title and interest in (a) all intellectual property rights in and to the Products, (b) all processes, methods, formula, ingredients, designs, procedures and other practices used by EPS-Doublet or relating to the manufacture and sale of the Products, including all intellectual property rights therein, (c) all of EPS-Doublet’s equipment and tooling used in the manufacture and sale of the Products, including all intellectual property rights therein (collectively, the “EPS-Doublet Technology”). Buyer hereby assigns to EPS-Doublet all right (including, without limitation, intellectual property rights), title and interest it may now or hereafter possess in and to the EPS-Doublet Technology and in any derivative works of and improvements to the Products and agrees to execute all documents, and take all actions, that may be necessary to effect such assignment. EPS-Doublet is under no obligation to disclose any of the EPS-Doublet Technology to Buyer for any reason.
9. Warranty Disclaimer. If, within fifteen (15) days of Buyer’s receipt of a Product to which a claim may relate, or such shorter period specified on the Invoice, if any, Buyer can prove to EPS-Doublet’s reasonable satisfaction that such Product was defective (subject to the terms of EPS-Doublet’s applicable warranty, a copy of which will be furnished to Buyer upon request), EPS-Doublet may, in its sole discretion and at its sole option, replace the defective Product or refund to Buyer the purchase price paid by Buyer for the defective Product. This is Buyer’s sole and exclusive remedy, and EPS-Doublet’s sole liability for any breach of the foregoing warranty. All defective Products returned which are replaced or for which a refund is given to Buyer shall become EPS-Doublet’s property. If EPS-Doublet determines that the original Products were not defective, Buyer shall reimburse EPS-Doublet for all costs of handling, transportation and repairs at EPS-Doublet’s prevailing rates. THE WARRANTY SET FORTH IN THIS SECTION 9 IS IN LIEU OF ALL OTHER WARRNATIES AND EPS-DOUBLET EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, AND FITNESS FOR PARTICULAR USE. Any repair or attempt to repair Products by anyone other than an authorized representative of EPS-Doublet automatically voids any warranty on those Products.
10. Indemnification. Buyer shall indemnify and hold harmless EPS-Doublet, its affiliates, and each of their stockholders, officers, directors, managers, members, employees, and agents (collectively, the “EPS-Doublet Parties”) from all losses, claims, damages, expenses, or liabilities of any kind (including attorneys’ fees and court costs), arising out of or resulting from any use by Buyer of the Products, or any sale or other transfer by Buyer of the Products.
11. LIMITATION OF LIABILITY. The EPS-Doublet Parties shall not be liable for any loss or damage caused by delay in furnishing the Products. UNDER NO CIRCUMSTANCES SHALL ANY OF THE EPS-DOUBLET PARTIES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, COLLATERAL, SPECIAL, PUNITIVE, TREBLE, EXEMPLARY, OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS DATA OR CONTENT, BUSINESS INTERRUPTION, OR LOSS OF GOODWILL) WHETHER SUCH CLAIM IS BASED ON CONTRACT, NEGLIGENCE, TORT, WARRANTY OR ANY OTHER BASIS UNDER OR AS A RESULT OF THIS CONTRACT OR THE PRODUCTS, IRRESPECTIVE OF WHETHER EPS-DOUBLET HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. IN NO EVENT SHALL EPS-DOUBLET’S AGGREGATE LIABILITY UNDER OR AS A RESULT OF THIS CONTRACT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY BUYER FOR THE PRODUCTS PURCHASED UNDER THIS CONTRACT. The parties hereby agree that the limitations on liability set forth herein are independent of any exclusive or limited remedies and shall survive and apply even if such remedies are found to have failed of their essential purpose. No action, regardless of form, arising out of the transactions under this Contract may be brought by Buyer more than one (1) year after the events which gave rise to the cause of action occurred.
12. Termination/Cancellation. EPS-Doublet may terminate this Contract or any orders placed hereunder with notice to Buyer prior to shipment at any time. Buyer may not cancel all or any portion of an order for which the Products have been shipped.
13. Intellectual Property Warranty. Buyer hereby represents and warrants that it has the requisite right, title, and interest to, or otherwise has the full right and authority to permit the use of, all artwork, graphics, images, trade names, logos, trademarks, service marks, marks, insignia, and any other representations or items of copyrightable subject matter (collectively, “Intellectual Property”) submitted to EPS-Doublet, and that use of the Intellectual Property does not and will not infringe upon the intellectual property rights of any third party. Buyer shall comply with the terms and conditions of any licensing agreements which govern the use of third party materials.
14. Proprietary Information. Buyer hereby agrees that all non-public information furnished to Buyer by EPS-Doublet, including, but not limited to, any variations in pricing from EPS-Doublet’s standard prices for the Products is proprietary to EPS-Doublet and such information shall be held in confidence and shall not be used or disclosed by Buyer without EPS-Doublet’s prior written consent, which consent may be withheld in EPS-Doublet’s sole discretion. Buyer shall enforce against its employees and agents these obligations of confidentiality. Buyer shall return such information to EPS-Doublet upon request.
15. Installment. EPS-Doublet’s failure to deliver, or nonconformity of, any installment under any installment agreement or blanket order form with Buyer shall not be a breach of this entire Contract.
16. Force Majeure. EPS-Doublet shall not be liable for any delays in the delivery or shipment of the Products, for non-delivery or for any damages suffered by Buyer as a result of any delay or non-delivery, due in whole or in part, directly or indirectly, to fire, act of God, strike, shortage of raw materials, supplies or components, retooling, upgrading of technology, delays of carriers, embargo, government order or directive, terrorism or any other circumstance beyond EPS-Doublet‘s reasonable control.
17. Governing Law; Venue. The Contract shall be governed by and construed in accordance with the laws of the State of Colorado, without regard to any conflict of law principles. The parties expressly waive the application of the United Nations Convention on Contracts for the International Sale of Goods to this Contract. Any action at law, suit in equity, or judicial proceeding of any kind arising directly, indirectly, or otherwise in connection with, out of, related to or from this Contract or the relationship between the parties shall be litigated only in the federal courts located in the City and County of Denver, Colorado or a State Court located in the city of Aurora, Adams County, Colorado and the parties waive any right they may have to challenge the jurisdiction of such court or seek to bring any action in any other forum, whether originally or by transfer, removal, or change of venue.
18. Miscellaneous. This Contract and any other agreement or document entered into by the parties which incorporate these Terms and Conditions by reference, constitute the final, complete, exclusive, and entire agreement between the parties and supersede all prior or contemporaneous negotiations, agreements, and understandings, written or oral, regarding the subject matter of this Contract. The failure of EPS-Doublet to enforce at any time any of the provisions of this Contract shall not be construed to be a waiver of such provisions nor the right of EPS-Doublet to enforce such provisions in the future. Buyer may not assign any rights under this Contract or this Contract in whole or in part without the prior written consent of EPS-Doublet, which consent may be withheld in EPS-Doublet’s sole discretion. Any prohibited assignment shall be null and void. The Contract shall inure to the benefit of the parties’ successors in interest and permitted assigns. EPS-Doublet may subcontract any of its obligations hereunder. If any provision of this Contract is found to be invalid or unenforceable in any respect, the validity and enforceability of the remaining provisions shall not be affected. The parties may only modify this Contract in a writing signed by both parties. The rights and remedies reserved herein to EPS-Doublet shall be cumulative and additional to any other or further rights or remedies provided by law or in equity. EPS-Doublet may enforce any one or more of its rights or remedies successively or concurrently.