Applicability of Terms
These General Terms and Conditions (the “Terms and Conditions”) are the only terms which govern the sale of the equipment and any related software (“Products”) contained in the accompanying audiovisual solutions proposal or quote (the “Proposal”) by Audio Visual Innovations, Inc. (“Seller”) to the buyer/customer identified in the Proposal (“Buyer”).
The Terms and Conditions and the Proposal (collectively, the “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of a conflict between these General Terms and Conditions and a valid Customer Care Service Agreement applicable to the Products that are the subject of the Proposal, the Customer Care Service Agreement shall prevail. In the event of a conflict between these General Terms and Conditions and an addendum attached hereto, the addendum shall prevail. In the event of a conflict between these General Terms and Conditions and any of the other documents constituting the Agreement, these General Terms and Conditions shall prevail unless expressly provided otherwise herein. Notwithstanding anything herein to the contrary, if a master services agreement signed by both parties is in effect covering the sale of the Products that are the subject of the Proposal, the terms and conditions of said agreement shall prevail to the extent they are inconsistent with these Terms and Conditions.
Acceptance of Terms
This Agreement shall not be binding upon Seller until accepted by Buyer as set forth in this section and the earlier of Seller’s confirmation in writing of Buyer’s order and Seller’s performance under the applicable Proposal. Buyer’s signed acceptance of the Proposal, issuance of order against the Proposal, payment for any of the Products contained in the Proposal, or receipt of the Products contained in the Proposal, whichever occurs first, shall constitute Buyer’s acceptance of this Agreement. Any modification, addition to, or waiver of any of this Agreement shall not be effective unless in writing and signed by an authorized representative of Seller, and any different or conflicting terms appearing in Buyer’s purchase order or other documents are expressly rejected by Seller. No relaxation, forbearance or indulgence by Seller in enforcing any of the terms and conditions of this Agreement or the granting of any time to any other party shall prejudice or restrict the rights and powers of Seller hereunder, nor shall waiver of any breach hereof operate as a waiver of any subsequent or continuing breach hereof.
Seller will use its best efforts to deliver the Products in accordance with the Buyer requested delivery date subject to receipt of all necessary information from Buyer. Shipping dates are approximate only, and Seller shall not be liable for delays or for failure to manufacture due to causes beyond its reasonable control or due to compliance with any government regulations.
Any delay shall extend delivery dates to the extent caused thereby. Buyer shall reimburse Seller its additional expenses resulting from any Buyer-caused delay. When delivery of the Products is delayed at the request of the Buyer and the Products have already been shipped to Seller, Seller will place the Products in storage and Seller will immediately invoice the Buyer 70% of the price, which will be promptly paid. Seller shall not be liable, and the Buyer shall have no right to cancel or rescind this Agreement, in the event of any delay due to causes beyond Seller’s reasonable control, and Buyer shall accept such delayed performance by Seller. The Buyer’s receipt of the Products shall constitute a waiver of any claims for delay.
Unless otherwise agreed in writing by Buyer and Seller, the total Proposal price shall be billed as follows: 100% at time of order, payable net 30 from Buyer’s receipt of invoice. Unless otherwise specified, Products are sold F.O.B. origin-Buyer to pay all shipping charges. If this Proposal covers Products for more than one system, room, suite, or location, for purposes of payment in accordance with payment terms stated on the face hereof each room, suite, or location shall be treated as if the subject of a separate sale and payment made accordingly. Seller shall not be liable for failures of or delays in manufacture or delivery resulting from any cause or causes beyond its reasonable control.
Buyer in Arrears or Default
In the event Buyer is in arrears with any payment whatsoever due from it to Seller at any time, whether in respect of the Proposal price or any other amount due from the Buyer to the Seller under the terms of this Agreement, the amount in arrears shall bear interest at the rate of 1.5% per month or the maximum rate permitted by applicable law, whichever is less, as from the date each amount falls due, pending actual payment thereof in full, without prejudice to any relief or remedy available to Seller. In the event of Buyer’s default, Seller may, without notice, peaceably enter any premises in which the Products are located and remove, hold and sell them in accordance with applicable law, to satisfy in whole or in part Buyer’s obligations.
Title, Risk of Loss
Title and risk of loss or damage to the Products shall pass to Buyer upon delivery, subject to the manufacturer’s software license (if applicable) and a purchase money security interest retained by Seller in the Products sold and the proceeds thereof until payment of all amounts then due to Seller. Buyer agrees to cooperate with Company in the execution and filing of financing statements under the Uniform Commercial Code or other documents as Seller reasonably requests to protect its security interest. Risk of loss or damage to the Products or any part thereof shall pass to the Buyer upon delivery.
Installation and Site Preparation
Except as expressly provided otherwise in this Agreement, Seller shall not be responsible for any installation or other services relating to the Products. Buyer shall obtain at its expense and keep effective all permissions, licenses, and permits whenever required in connection with the installation and/or use of the Products and the premises where the Products shall be situated.
Seller warrants that the Products will be free from defects in materials and workmanship for a period of ninety (90) days from delivery or, with respect to Products manufactured by a third party, such longer period of time (if any) provided by such manufacturer. Seller shall not be liable for nor have any warranty obligations with respect to Products that are in any way misused, altered and/or repaired by someone other than a representative of the Seller which, within the sole, reasonable judgment of the Seller, results in an adverse effect, including effects upon performance or reliability of the Products.
In order to make a claim under the limited warranty provided herein, Buyer shall promptly notify Seller in writing and Seller will, subject to the applicable manufacturer’s warranty policy, repair or replace such defective Product at no cost to Buyer. Seller will attempt to reply to warranty claims received from Buyer prior to 1:00 p.m. within forty-eight hours. Normal working hours are 8 a.m. to 5 p.m., Monday through Friday, excluding legal holidays. Buyer shall reasonably and promptly cooperate with Seller’s request for information regarding the claim and with return of the defective Product if required.
Warranty Limitations and Disclaimers
Except as otherwise specified in this Agreement, no warranty whatsoever is provided by the Seller hereunder as to Products manufactured by anyone other than the Seller, including but not limited to, cables, lamps, batteries, glassware, and evacuated devices (including valve, cathode ray tubes, and other special electron tubes). Seller’s sole obligation with respect to Products manufactured by someone other than Seller shall be to pass through the applicable warranties, if any, provided by the manufacturer. The warranties set forth in this Agreement are exclusive and in lieu of all other warranties, whether written or oral, implied or statutory. No implied warranty of merchantability or fitness for a particular purpose shall apply.
Buyer shall (i) notify Seller as soon as any unusual operating peculiarity appears, and (ii) operate the Products in a safe and competent manner in strict compliance with established safety operating procedures and applicable laws and government regulations. In the event the Buyer or any user of the Products fails to comply with any of the above-stated conditions, Seller’s warranties and its obligations hereunder shall terminate without notice to Buyer.
Limitation of Liability and Exclusion of Damages
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INDIRECT DAMAGES, LOST BUSINESS PROFITS, OR LOSS, DAMAGE OR DESTRUCTION OF DATA, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT AND THE RELATIONSHIP AND/OR DEALINGS BETWEEN BUYER AND COMPANY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SAME. SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCT(S) GIVING RISE TO THE CLAIM. THE PRECEDING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
THE ABOVE LIMITATION SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Any and all taxes levied or based on the prices in this Agreement, or the Products being sold hereunder, exclusive of any taxes based on net income, shall be added to the purchase prices set forth in the Proposal, except to the extent the Buyer provides the Seller with a valid tax exempt certificate approved by Seller.
Governing Law and Jurisdiction
This Agreement shall be interpreted in accordance with and governed in all respects by the laws of the State of Florida without giving effect to its conflicts of law rules. Any dispute related to, arising out of, or in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts in Hillsborough County, Florida and the United States District Court for the Middle District of Florida. In the event of legal proceedings arising out of or relating to this Agreement, the prevailing party, as determined by the court, shall be entitled to recover, from the non-prevailing party, reasonable costs suffered or incurred in connection with such proceedings including, but not limited to, court fees, attorneys’ fees, expenses and costs of investigation and court.
TO THE EXTENT PERMITTED BY APPLICABLE LAWS, SELLER AND BUYER EACH WAIVE ANY RIGHTS WHICH EITHER MAY HAVE TO TRIAL BEFORE A JURY OF ANY DISPUTE ARISING FROM, OR RELATED TO, THIS CONTRACT. SELLER AND BUYER FURTHER STIPULATE AND CONSENT THAT ANY SUCH LITIGATION BEFORE A COURT OF COMPETENT JURISDICTION SHALL BE NON-JURY.
Neither party will be liable to the other for delays or failures to perform occasioned by causes beyond its reasonable control and without its fault or negligence. Such acts or events shall include but not be limited to, acts of God, civil or military authority, civil disturbance, riot, fire, strikes, lockouts or slowdowns, factory or labor conditions, inability to obtain necessary labor, materials or manufacturing facilities, and delayed issuance of export control licenses. In the event of such delays or failures to perform, any dates or times by which either party is otherwise scheduled to perform shall be extended automatically for a period of time equal in duration to the additional time required because of the delay or failure to perform. Each of the parties shall promptly inform the other of any event of force majeure, and its expected duration and cessation. The party claiming force majeure shall use its best efforts to mitigate such effects to the extent reasonably practicable.
In the event Buyer wishes to return any Products based on reasons outside of AVI-SPL’s control, including but not limited to Buyer’s termination of the order or any portion thereof for its convenience, Customer agrees to reimburse Seller for any and all third party restocking fees incurred by Seller that cannot be reasonably mitigated.
The Proposal shall be firm for the period shown on the face hereof, subject to withdrawal or change by the Seller upon notice at any time prior to acceptance of an order.
In providing the Products, Seller shall be deemed to be an independent contractor and its personnel and representatives shall not act as nor be Buyer’s agents or employees.
If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the remaining terms of this Agreement shall in no way be affected or impaired.
Buyer may not assign any of its rights or obligations under this Agreement, including by purchase, merger or operation of law, without the prior written consent of Seller, which consent shall not be unreasonably withheld or delayed. Any attempted assignment or transfer in violation of this provision shall be null and void.
Seller may terminate this Agreement immediately for cause in the event Buyer breaches a material term of this Agreement (it being understood that Buyer’s payment obligations shall constitute a material term) and such breach is not cured within ten (10) days after written notice thereof. Seller may also terminate this Agreement immediately for cause upon written notice in the event Buyer is declared insolvent or adjudged bankrupt by any court of competent jurisdiction or makes an assignment for the benefit of creditors, or a petition in bankruptcy or reorganization or an arrangement with creditors is filed by or against Buyer and not dismissed within thirty (30) days. Upon Seller’s termination of this Agreement for cause, without waiving or otherwise limiting any other remedies available to Seller under this Agreement, at law or in equity, Buyer shall become immediately liable for any outstanding charges for Products delivered and/or Services performed up to date of termination, any third party restocking/cancellation fees incurred that cannot be reasonably mitigated, and any interest on any and all past due charges as set forth in this Agreement.
Upon any expiration or termination of the Agreement, in addition to any other provisions of this Agreement that states survival after termination or expiration of this Agreement, and notwithstanding expiration, completion or termination of this Agreement, the parties shall continue to be bound by the provisions of this Agreement that, by their nature, shall survive such completion, expiration or termination.
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