All products offered by IP are sold strictly upon the terms and conditions stated in this Agreement. All prices quoted by IMAGE PROJECTION (“IP”) are in U.S. Dollars, F.O.B. origin, and are subject to change without notice, unless otherwise agreed to in writing by IP prior to the date of the invoice. Possession of IP’s catalog and price list is not in itself an offer to sell any product. All purchase orders are subject to acceptance by IP. Design and specifications of any IP product is subject to change without prior notice.
All payments to IP shall be made in U.S. Dollars, and are due in full prior to shipment of any product(s) to the Customer, unless a Customer’s purchase order and payment terms have been accepted by IP. Otherwise, any invoice not paid in full by the due date shall be subject to interest at the rate of one and one-half percent (1½ %) per month, or the maximum permitted by law, whichever amount is less, until paid in full.
All shipments are F.O.B. origin. Customer shall be solely responsible for all costs of transportation, insurance, taxes and duties including without limitation, any applicable sales or use or any value added or similar taxes payable with respect to ordered product(s), other than taxes levied or imposed based on IP’s income. In the event that IP pays any such taxes and/or duties on behalf of Customer, IP shall invoice Customer for such taxes and/or duties and Customer agrees to pay such taxes and/or duties upon receipt. Partial shipments of any paid order may be made at the discretion of IP, or upon Customer’s request. No shipment will be made if Customer’s account is past due. Customer’s requests notwithstanding, IP reserves the right to make the final selection of the carrier for all shipments. The responsibility of IP ceases upon acceptance of the products by the carrier. Any claims for loss or damage in transit must be made solely with the carrier. Loss or damage in transit shall not constitute an offset, a waiver, a curtailment or an abrogation of Customer’s obligation to pay IP, or to comply with the terms and conditions hereof.
All sales are final. Only products not conforming to factory specifications of the manufacturer (“non-conforming products”) may be returned. Any request for return authorization of any non-conforming product must be made within thirty (30) days of IP’s tendering the product to Customer’s carrier, otherwise such products shall be deemed conforming. A request for permission to return non-conforming products must list the quantity, model number, original purchase order number, original invoice number, and a concise informative reason for the request. If permission to return is granted, a numbered return authorization number (“RAN”) will be issued to the Customer showing the details for the return shipment to be made and for credit to be issued. RAN’s must be tendered by the Customer to IP’s authorized carrier within forty-five (45) days. RAN’s not timely tendered to IP’s authorized carrier within the forty-five (45) days provided shall automatically expire and become null and void, and no products will thereafter be accepted for return. In no event will IP accept the return of products based on subjective reasoning such as, but not limited to, non-applicability of the product for specific use. Any non-conforming products returned without the prior written consent of IP will be refused. No returns can be made on any specialty or custom-made items, except for defects proved to be the fault of IP. Customer shall prepay all freight charges on RAN shipments or they will be refused by IP.
IP shall never be liable for late delivery and / or inability to perform hereunder, caused by any contingency beyond IP’s control, including without limitation, strikes, riots, lockouts, war, accident, fire, flood, disaster, loss in transit by carrier, inability to obtain materials, subcontractor, supplier or customer caused delays, governmental or other limitations or restrictions on materials, labor, manufacturing, delivery or shipping, and upon the occurrence of such contingencies, the performance of IP shall be suspended and extended for a period of such contingency until it can be remedied, and thereupon Customer shall be obligated to accept such delayed performance without penalty to IP in any form. “Performance” hereunder includes without limitation, fabrication, assembly, shipment, delivery, repair or replacement.
For the safety of the Customer, and Customer’s employees or agents, Customer agrees to follow the installation and operating instructions provided with the product(s), and to have the product(s) installed only by a qualified licensed electrician. IP assumes no responsibility whatsoever for the incorrect or faulty installation of any of its products. IP shall have no liability or obligation to any person hereunder, or otherwise resulting from Customer’s furnishing, sale, lease, repair or use of the product(s) sold to Customer, for any special, indirect, collateral or consequential damages hereunder such as, but not limited to, anticipated lost profits, or any other economic loss claimed to arise from the use or in connection with IP’s products. The total liability of IP for any claim or damage arising out, or otherwise related to, this Agreement shall be strictly limited to direct damages, which shall not exceed the total purchase price of the products purchased by the Customer preceding the event which the cause of action arose. The parties agree that this waiver and limitation of liability shall survive termination of this Agreement.
IP’s products are covered by a limited warranty, as set forth herein, which is the only warranty made by IP. IP expressly disclaims, and Customer hereby expressly waives, all other warranties express or implied, including warranties of merchantability and fitness for a particular purpose. IP does not warrant that any product will meet Customer’s requirements. IP’s limited warranty is in lieu of all other liabilities or obligations of IP for damages arising out of or in connection with the installation, use or operation of IP’s product(s). IP’s products are carefully tested and inspected at the factory and warranted to be free of material and workmanship defects for a period of twelve (12) months from the date of shipment. IP’s warranty is limited to the repair or replacement of any part that proves to be defective, and for which a timely warranty claim is submitted to IP before expiration of the twelve (12) month warranty period. This limited warranty does not apply to any defect arising from accident, misuse, improper or unauthorized adjustment or repair, or negligent use. The limited warranty does not apply to lamps/bulbs, nor does the limited warranty apply to normal wear and tear of any product. In the event of a covered warranty claim, the Customer shall notify IP of the claim in writing and IP will thereafter provide Customer with the warranty return and authorized carrier instructions. Customer shall prepay all freight charges for any product(s) authorized to be returned for warranty repairs or replacement, otherwise they will be refused by IP.
IP shall have the non-exclusive right to use Customer’s name and logo to identify Customer as a customer of IP for sales and marketing purposes. IP’s use of the name and or logo does not create any ownership right therein and all rights not granted to IP are reserved to the Customer.
This Agreement constitutes the entire agreement concerning the subject matter hereof, and there are no agreements or representations with respect thereto except as contained herein. This Agreement may not be modified in any manner except by written amendment executed by each of the parties hereto, and no action or omission shall be construed as a waiver unless expressly stated in writing by the waiving party; this Agreement is binding upon the parties, and shall inure to the benefit of their successors, assigns, and representatives. The parties each expressly agree that while this Agreement may have been drafted by counsel for one side, it has been negotiated as to both substance and form by both sides. It is not to be construed in favor of or against either party by reason of the stationery upon which it is finalized or by reason of it having been drafted or finalized, in whole or in part, by counsel for one party.
Except for collection actions which may be brought by IP at any time, any claim or cause of action arising under, or otherwise relating to, this Agreement, and any related purchase order(s), or invoice(s), or the subject matter hereof or thereof, whether based in contract or tort, including negligence or otherwise, shall be commenced within one (1) year from the date such claim or cause of action first arose.
Any dispute pertaining to, or arising from, this Agreement shall be governed by, and interpreted in accordance with, the laws of Florida. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction and venue of the Florida state and federal courts located in Miami-Dade County, and Customer hereby consents to such jurisdiction and venue to the exclusion of any other forum. The parties each agree to waive trial by jury on any issue pertaining to, or arising from, this Agreement.
In case any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or lack of enforceability will not affect any other provision, and this Agreement will, in all other respects, be valid and enforceable. Without limiting the generality of the foregoing, if any provision of this Agreement is held to be unenforceable because of a finding that it is unreasonable in any respect, the court of competent jurisdiction may determine the extent to which such paragraph or provision would be reasonable, and this Agreement shall be deemed amended accordingly and will be enforced to such extent.
This Agreement is intended for the benefit of the parties hereto and their respective successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any third person. The parties further agree that time is of the essence as to this Agreement and to each of its terms.