TERMS AND CONDITIONS
Creative Tent International, Inc.
Terms and Conditions
Purchaser’s execution of the attached Creative Tent Quote shall be deemed its acceptance of and agreement to be bound by the terms of the entire Sales Agreement, as defined in paragraph 2 below, upon acceptance of the Sales Agreement by Seller. This Sales Agreement shall not become binding upon Seller, however, until such time as both the attached Creative Tent Quote and these Terms and Conditions are fully executed by an authorized representative of the Seller. Upon acceptance of the Sales Agreement by Seller, by means of said execution of the attached Creative Tent Quote and these Terms and Conditions, Seller shall return a fully-executed copy of the Sales Agreement to the Purchaser for its records.
2. ENTIRE AGREEMENT / NO ORAL AMENDMENT OR MODIFICATION:
This “Sales Agreement,” consisting of the “Terms and Conditions” set forth herein, the attached Creative Tent Quote, shall constitute the entire agreement between the parties for sale of the merchandise and/or services referred to in the Creative Tent Quote. Seller hereby gives notice of its objection to any different or additional terms or conditions proposed or inserted herein by Purchaser, excepting only such changes as Seller may expressly accept in writing.
3. DELIVERY / RISK OF LOSS:
Unless otherwise stated in the Creative Tent Quote, all orders are delivered and shipped ExWorks Factory, Henderson NV, U.S.A.
Risk of loss shall pass to Purchaser when the merchandise is duly delivered to a carrier for shipment to Purchaser or when the merchandise is otherwise tendered as to enable Purchaser to take delivery. Seller shall in no way be responsible for any loss or damages following such delivery. These “risk of loss” provisions apply irrespective of pre-payment by Seller of expenses, such as insurance and freight.
4. INSPECTION ON DELIVERY / NOTIFICATION OF DEFECTS:
Purchaser shall have the right to inspect the merchandise at time of delivery, and shall give immediate written notice to Seller of any claim of visible damage to shipping crates or contents. Purchaser shall notify Seller in writing, within 7 (seven) days of delivery or 7 (seven) days of completion of erection of the merchandise], of any patent defect in workmanship or material in the merchandise and give Seller an opportunity to investigate. If notice is not given as aforesaid, the merchandise shall be deemed to be free of patent defects and the Seller shall in no manner be responsible or liable for any such patent defects.
5. EXCLUDED EXPENSES:
Unless otherwise stated in the Creative Tent Quote, the quoted prices do not include sales, use, tariff, excise and similar taxes applicable to the merchandise furnished hereunder or the materials used in the manufacture thereof, nor do the quoted prices include insurance, freight or technical representative services. Purchaser shall be responsible for payment of all such taxes, costs and expenses. Seller reserves the right to prepay such taxes, costs and expenses, in which event the Purchaser shall pay the amount thereof to Seller immediately upon Seller’s demand.
In the event that the Creative Tent Quote specifies an allowance for freight costs or technical representative services, Purchaser shall be responsible for payment of the balance if the actual freight costs and/or actual technical representative services exceed the amount of the specified allowance. In the event the Purchaser does not fully use the specified allowance for freight costs or technical representative services, the unused balance of the allowance shall be credited to Purchaser.
The quoted prices do not include any fees, expenses or other costs incurred with respect to building permits or other government authorizations or approvals necessary for Purchaser’s use of the items listed in the Creative Tent Quote. Purchaser assumes the sole responsibility in connection with obtaining such applications and building permits, including any fees or expenses incurred in connection therewith. Upon request by Purchaser subject to the terms of Paragraph 19 below, however, Seller shall furnish to Purchaser a product “Design Analysis” for use by Purchaser solely to secure necessary approvals and permits from public authorities, which “Design Analysis” may include, as applicable, an engineering analysis of structure, anchor bolt layout for foundation and base reaction loads for foundation design by Purchaser’s registered professional engineer.
6. SITE PREPARATION AND INSTALLATION:
Unless otherwise stated in the Creative Tent Quote, the quoted prices do not include soil testing; site preparation; water drainage; installation of foundation in accordance with all applicable codes; floor; structure installation; supply or installation of mechanicals or utilities; removal of excavation and other materials; final grading or landscaping.
Should rock or subterranean objects exist and result in problems with installation of foundation and/or anchor devices thereby causing additional cost to be incurred for such installation, said additional cost will be the sole and absolute responsibility of the Purchaser.
Seller may, but shall not be required to, supply equipment to aid Purchaser or its agents in the erection of merchandise delivered. In the event Seller supplies such equipment, Purchaser agrees that it shall be deemed provided on an “as is” basis with no warranties, express or implied, and that Purchaser’s use of said equipment (a) shall be subject to the liability imitations set forth in Paragraph 18 below, and (b) shall be limited to individuals (i) qualified by Purchaser to operate such equipment and (ii) approved in advance by Seller. Purchaser shall be liable for risk of damage to or loss of said equipment from the time of its delivery to Purchaser until its return to Seller. Purchaser, at Purchaser’s sole expense, shall return such equipment to Seller at Henderson, Nevada, U.S.A, shipping the same within five days from notice by Seller directing it to do so.
7. TECHNICAL REPRESENTATIVE SERVICES:
At the written request of the Purchaser, and conditioned upon Purchaser’s satisfaction of the following terms, Seller shall furnish to Purchaser technical representative services as same relate to the assembly and erection of the merchandise delivered hereunder. Purchaser shall pay Seller for the services of said representative(s) the sum of Eight Hundred Seventy-two dollars ($872.00), per day, per person, plus all travel and living expenses. Unless otherwise specified in the Creative Tent Quote, Purchaser’s payment for said services, travel expenses and living expenses shall be due within five (5) days from the date of invoice by Seller. To the extent travel and living expenses are reasonably expected by Seller to exceed $1,500.00, however, Seller may, at its option, require Purchaser to pay such expenses in advance. Travel time shall commence and terminate at the Seller’s place of business in Henderson,Nevada, U.S.A.
As conditions to the Seller’s provision of technical representative services, Purchaser agrees to provide toilet facilities, reasonable telephone access, and access to the installation site for personnel vehicles, and further agrees to cooperate with and provide reasonable assistance to the Seller and its technical representatives in the provision of such services.
Prior to arrival on site by Seller’s technical representative(s), Purchaser shall make the site free and clear of debris and completely prepared in a manner suitable for erection of the delivered merchandise. Upon arrival on site by Seller’s technical representative(s), Purchaser or its agent shall provide power sufficient to operate small tools, a competent installation supervisor and crew, plus all necessary equipment and equipment operators to complete installation of the delivered merchandise.
Seller’s technical representative(s) shall not be responsible for the work output of the installation crew or equipment operators reporting to the Purchaser or the Purchaser’s supervisor or job foreman.
Purchaser may notify Seller of the date or dates upon which it desires the technical representative(s) to be present in order to provide said services and Seller will utilize reasonable efforts to comply with such request, provided, however, Seller shall incur no liability whatever because or as a result of any failure to provide such technical representative(s) on the date or dates requested.
If the Creative Tent Quote specifies an allowance for technical representative services, it shall be for a specified number of days. Seller is in no way responsible for any delays in the installation caused by incomplete site preparation, improper setting of anchor bolts by the Purchaser or the Purchaser’s agent, or for any delays caused by cold or inclement weather, strikes, lockouts, or other labor troubles, equipment breakdowns or lack of equipment, floods, fires, transportation delays or any other circumstances which prevent or hinder installation. If Seller has technical representative(s) on the job site during any such delay, the Purchaser shall be responsible for all reasonable expenses incurred by Seller and its technical representatives during the duration of such delay in addition to the fee, per day, per representative, set forth above.
8. WORKERS’ COMPENSATION:
Purchaser shall carry all necessary workers’ compensation and other insurance on its laborers, and Seller shall have no obligation to provide such insurance, except that Seller shall carry adequate workers’ compensation insurance coverage on its own employees while on the job site and while traveling to and from job site.
If the financial responsibility of the Purchaser becomes impaired or unsatisfactory to the Seller, or Purchaser is in default to Seller under this or any other contract, advance cash payment or satisfactory security shall be given by Purchaser upon demand by Seller, and shipments and services may be withheld until such payment or security is received. All deliveries shall be subject to the approval of Seller’s Credit Department.
Credit inquiries shall be conducted accordance with applicable federal and state laws including the Federal Fair Credit Reporting Act (FCRA).
10. COLLECTIONS / ATTORNEYS’ FEES:
In the event of default by Purchaser in payment of the purchase price and other amounts specified herein, Purchaser hereby agrees to pay all collection costs, including attorneys’ fees and other incidental expenses, incurred in connection with collection of any unpaid balance, together with interest on the unpaid balance from due date as provided in Paragraph 11 below. In any legal action seeking enforcement of any of the other terms and provisions of this Sales Agreement, the prevailing party (as determined by the court or other comparable authority in any such action) shall be entitled to reasonable attorneys’ fees and costs in addition to any other relief to which the party may be entitled.
11. PAYMENT AND TITLE:
All payments must be made in United States currency. No payment terms, other than those stated in this Sales Agreement, shall be allowed.
Interest will be assessed at the rate of one and one-half percent (1-1/2%) per month or the highest legal rate, whichever is less, on any and all overdue amounts until paid. Such interest charges shall commence at the date of delivery or as otherwise stated in this Sales Agreement.
If the Purchaser is outside the United States, payment shall be made by irrevocable confirmed letter of credit or approved equivalent. This shall in no way be altered unless so stated in this Sales Agreement.
In the event that the Seller grants to Purchaser a holdback, said holdback grant shall be in writing and shall be for not more than thirty (30) days. If the Seller has not received said holdback amount, in full, on or before expiration of the holdback period, Seller shall be entitled to enter the premises of the Purchaser and remove any/or all equipment equal to the amount of holdback. Said value of equipment removed shall be its depreciated value on the date it is removed, as reasonably determined by Seller.
All merchandise covered hereby shall remain the property of the Seller and shall remain personal property, until it is delivered to Purchaser or the purchase price is paid in full, whichever occurs later, and, until the later of said events occurs, Purchaser shall perform any acts necessary to perfect and assure retention of title to such merchandise by Seller.
12. FAIR LABOR STANDARDS ACT:
Seller represents that the merchandise covered by this order will be manufactured in accordance with the requirements of the Fair Labor Standards Act, if applicable, and that it will use all reasonable efforts to cause the merchandise to comply with other applicable laws, rules and regulations. However, Seller shall not be responsible for compliance by the merchandise with local interpretations of same, nor with any local laws, ordinances, codes and/or regulations, unless it shall have agreed to do so in writing.
13. APPLICABLE LAW:
The terms and conditions applicable to the transaction provided for herein shall be determined and construed in accordance with, and shall be governed by, the laws of the State of Nevada, and Purchaser and Seller agree to submit to the jurisdiction of the appropriate State or Federal Court within Nevada for purposes of resolving any dispute or claim arising in connection with said transaction.
14. SEVERABILITY / FORBEARANCE NOT A WAIVER:
The invalidity or un-enforceability of a particular provision of this agreement shall not affect the other provisions hereof, and the agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted.
Failure of either party to enforce any right hereunder shall not waive any rights with respect to other or future occurrences.
Seller warrants to Purchaser that the products manufactured by it are free from defects in material and workmanship under normal use and service. SELLER’S OBLIGATION UNDER THIS WARRANTY IS LIMITED TO, AT ITS OPTION, ALLOWANCE FOR CREDIT, REPAIR OR EXCHANGE OF ANY PART OR PARTS WHICH MAY PROVE DEFECTIVE UNDER NORMAL USE AND SERVICE AS INDICATED IN THE NEXT PARAGRAPH. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES OR CLAIMS FOR LABOR.
The term of this warranty shall be limited to one (1) year. The warranty period shall begin to run from the date of delivery of the merchandise to Purchaser.
The above warranty is limited to products manufactured by Seller and does not apply to any products not manufactured by it. This warranty is provided as an accommodation to Purchaser and should not be construed as reflecting the life expectancy of the merchandise. This warranty does not apply to clear vinyl.
This warranty does not apply to any defect due to overloading of the merchandise by Purchaser or its agents, contractors, employees or representatives, such as overloading caused by cranes or other attachments to the frame or structural members of the merchandise, or by the installation of any signs, ventilators, machinery or weights in excess of design conditions, or by other loads in excess of those for which the merchandise was designed.
This warranty does not apply to any merchandise which has been subjected to misuse, alteration, accident or negligence, or which has been moved from its original place of erection, or to any merchandise which has not been erected in strict accordance with all of Seller’s applicable erection instructions or local building codes. All warranties shall be invalid if the Purchaser or its agents, contractors, employees or representatives shall fail to comply with Seller’s instructions, specifications or recommendations. This warranty does not apply if the alleged defect or failure is caused by abnormal weather conditions, acts of God, falling objects, explosions, fire, riots, civil commotions, external forces, faulty or inadequate foundations or soil-bearing, acts of war, radiation, harmful fumes or foreign substances in the atmosphere, corrosion or floods.
This warranty does not apply to any fabric damage or failure caused, in whole or in part, by high wind conditions, it being understood and agreed by Purchaser that tent fabric will not withstand winds greater than 90 mph and should be removed from the tent frame to prevent damage in hurricane or other high wind conditions.
This warranty does not apply to any damage or failure caused, in whole or in part, by any flying, falling, sliding, leaning or moving debris in high wind conditions, it being understood and agreed by Purchaser that, regardless of engineering design tolerances, the merchandise cannot withstand damage from such debris and the entire unit should be taken down to prevent debris damage in hurricane or other high wind conditions.
Seller shall have the right to inspect merchandise claimed to be defective and all warranties shall be invalid if Seller is denied such right to inspect, whether or not Purchaser has exercised the warranty privilege. Said inspection shall be made at any time that is convenient to the Seller, or its legal agent, during the lifetime of this warranty.
16. EXCLUSION OF OTHER WARRANTIES:
EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN PARAGRAPH 15 ABOVE; THERE ARE NO WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PURPOSE, APPLICABLE TO MERCHANDISE COVERED HEREBY.
Correction of non-conformities in the manner and for the period of time provided in Paragraph 15 above shall constitute fulfillment of all liabilities of Seller to Purchaser, whether based on contract, negligence or otherwise with respect to or arising out of such merchandise.
NO WARRANTIES OR REPRESENTATIONS AT ANY TIME MADE BY ANY SALES REPRESENTATIVE, DEALER, AGENT OR OTHER PERSON SHALL BE EFFECTIVE TO VARY OR EXPAND THE ABOVE EXPRESS WARRANTY OR ANY OTHER TERMS HEREOF.
17. NO PROTECTION FROM CLAIM OF INFRINGEMENT:
Seller makes no representation or warranty that delivery or subsequent use of the merchandise shall be free of the claim of any third party by way of infringement.
18. LIABILITY LIMITATION:
SELLER SHALL NOT BE LIABLE IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE) FOR LOSS OF PROFITS OR REVENUE, LOSS OF USE OF EQUIPMENT OR FACILITIES, COST OF CAPITAL, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE RESULTING FROM OR IN ANY MANNER RELATING TO THE MERCHANDISE COVERED HEREBY, ITS DESIGN, USE, ANY INABILITY TO USE THE SAME OR ANY DELAY IN DELIVERY OF THE SAME, IT BEING UNDERSTOOD AND AGREED THAT THE SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO DEFECTIVE MERCHANDISE SHALL BE THE CREDIT, REPAIR, OR EXCHANGE THEREOF PURSUANT TO PARAGRAPH 15 ABOVE. SHOULD THE MERCHANDISE PROVE SO DEFECTIVE, HOWEVER, AS TO PRECLUDE THE REMEDYING OF WARRANTED DEFECTS BY REPAIR OR REPLACEMENT, PURCHASER’S SOLE AND EXCLUSIVE REMEDY SHALL BE THE REFUND OF THE PURCHASE PRICE OF THE MERCHANDISE, OR PART THEREOF WHICH IS SO DEFECTIVE, UPON THE RETURN THEREOF TO SELLER.
SELLER SHALL NOT BE RESPONSIBLE FOR ANY DELAY OR FAILURE TO MAKE DELIVERY OF ALL OR ANY PART OF THE MERCHANDISE PURCHASED DUE TO ACTION, OMISSION OR REGULATION OF ANY GOVERNMENTAL AUTHORITY OR OF THE PURCHASER, STRIKES OR OTHER LABOR TROUBLES, FIRE, DAMAGE TO, OR DESTRUCTION IN WHOLE OR IN PART OF MERCHANDISE OR MANUFACTURING PLANT, LACK OF OR INABILITY TO OBTAIN RAW MATERIALS, LABOR, FUEL, OR SUPPLIES, OR ANY OTHER CAUSES, CONTINGENCIES, OR CIRCUMSTANCES WITHIN OR WITHOUT THE UNITED STATES NOT SUBJECT TO ITS CONTROL WHICH PREVENT OR HINDER THE SELLER’S DELIVERY OF THE MERCHANDISE OR MAKE THE FULFILLMENT OF THIS SALES AGREEMENT IMPRACTICAL, ANY OF WHICH SHALL, WITHOUT LIABILITY, EXCUSE THE SELLER FROM PERFORMANCE OF THIS SALES AGREEMENT.
IN THE EVENT OF DELAY FOR WHICH THE SELLER IS RESPONSIBLE, SELLER SHALL NOT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSSES TO PURCHASER AS A RESULT OF THE DELAY AND PURCHASER’S RIGHTS SHALL BE LIMITED TO CANCELLATION OF THE ORDER BY NOTICE IN WRITING TO SELLER, IN WHICH EVENT PURCHASER SHALL BE LIABLE TO SELLER ONLY FOR THE DIRECT COSTS INCURRED TO DATE OF CANCELLATION AND ENGINEERING COST OF ALL ENGINEERING WORK PERFORMED IN CONNECTION WITH THE MERCHANDISE COVERED BY THIS SALES AGREEMENT INCURRED BY SELLER UP TO THE DATE OF RECEIVING SAID NOTICE. THIS LIABILITY OF PURCHASER SHALL BE IMMEDIATELY DUE AND PAYABLE TO SELLER UPON NOTICE FROM SELLER OF THE AMOUNT OWING.
19. NONDISCLOSURE OF INFORMATION:
In the event Seller furnishes to Purchaser a product “Design Analysis” for purposes of Purchaser securing necessary approvals and permits from public authorities, and/or in the event Seller provides any other information, data or other material to Purchaser that Seller has designated as proprietary or confidential, Purchaser hereby acknowledges the confidential and proprietary nature thereof and agrees with respect thereto that (a) the same will be utilized by Purchaser only for the purpose of securing necessary approvals and permits from public authorities and/or for such other purpose(s) specifically identified and designated in writing by Seller, (b) Purchaser will in no event utilize or disclose the same for any other purpose unless it shall have obtained the prior written consent of Seller to any specific disclosure or use, and (c) Purchaser will utilize all reasonable efforts to cause its employees, agents and representatives, as well as the employees, agents and representatives of public authorities to whom the same may be disclosed as herein contemplated, to keep such information confidential and to protect against the appropriation or personal use of the same by any such person, including but not limited to advising each such employee, agent or representative of Purchaser of the confidential and proprietary nature of such "Design Analysis" information and material, and securing the agreement of each such employee, agent or representative to be bound by the foregoing restrictions.
20. CONSENT TO PUBLICITY:
Seller shall have the right to photograph the merchandise and installation site before, during and after installation. Purchaser consents to Seller’s use of such photographs as well as Seller’s public reference to this Sales Agreement for Seller’s publicity and marketing purposes. Such use and reference may include, without limitation, photographs and mention in Seller’s Web site, brochures, and promotional materials.
21. FAILURE TO TAKE TIMELY DELIVERY / STORAGE FEES / RESTOCKING FEES:
Purchaser shall make final payment of all amounts due and take delivery of merchandise within 10 days of written notification from Seller that the merchandise is available for pick-up or delivery. Failure by the Purchaser to make final payment and to collect or take delivery of the merchandise within that time period shall not excuse payment of the purchase price by the Purchaser, who in addition to being liable to Seller for all amounts specified in the Creative Tent Quote and these Terms and Conditions, as well as repayment of any volume, cash payment or other discounts included in the Creative Tent Quote, shall indemnify and defend Seller against all losses or claims arising from such failure by Purchaser to deliver final payment and/or to take timely delivery.
Purchaser further agrees that, if Purchaser fails to make final payment and to collect or take delivery of the merchandise within the specified time period, Seller may arrange storage either at Seller’s facility or elsewhere on Purchaser’s behalf, at Seller’s option, with all charges incurred by Seller, including storage, insurance and transport, to be payable by Purchaser. Storage at Seller’s facility shall be payable by Purchaser at the rate of $50 per day. If charges for storage of any merchandise held by Seller for Purchaser’s benefit remain unpaid for thirty (30) days, Seller may at any time after that period, upon 30 days’ written notice to Purchaser and while such charges remain unpaid, sell and/or dispose of the merchandise, at Seller’s sole discretion without further notice to Purchaser and Seller shall not be responsible for the preservation or safekeeping of the merchandise after the sale/disposal date specified in the notice.
Orders from Existing Stock: Purchaser further agrees that, if Purchaser fails to make final payment and to collect or take delivery within the specified time period of any non-custom merchandise ordered from Seller’s existing stock, Purchaser shall pay to Seller a restocking charge equal to 15% of Seller’s catalogue purchase price for all such merchandise as the reasonable cost of Seller’s overhead and labor costs for such re-stocking.