Stage 4 Designs, LLC – Terms and Conditions of Sale
1. Acceptance of Terms and Conditions
These Terms and Conditions apply to the sale all products and performance of all services by Stage 4 Designs, LLC (“Seller”) to and for the buyer identified in the signature block below (“Buyer”). Buyer’s signature on these Terms and Conditions on or before any deadline imposed by Seller, payment of a deposit or any part of the purchase price, written or oral authorization for Seller to proceed, or permitting delivery or installation of products by Seller to or on Buyer’s premises shall constitute acceptance by Buyer of these Terms and Conditions. Any terms or conditions proposed by Buyer inconsistent with or in addition to the terms and conditions of sale herein contained shall be void and of no effect unless specifically agreed to by Seller in a writing executed by the Seller. These Terms and Conditions state the entire understanding of the Seller and Buyer with respect to the subject matter hereof and supersede any prior or contemporaneous written or oral representations or agreements pertaining thereto.
2. Force Majeure
Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached its obligations, for any failure or delay in fulfilling or performing any obligations when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
3. Terms of Payment
Terms of payment are net cash thirty (30) days following the date of invoice. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and court costs. Amounts owed by Buyer with respect to which there is no dispute shall be paid without set off for any amounts which Buyer may claim are owed by Seller regardless of any other disputes which may exist.
4. Title and Risk of Loss
Title shall not pass to Buyer until Seller has been paid in full. Risk of loss shall pass to Buyer upon delivery to Buyer’s premises of those products ordered and delivered.
5. Security Interest
As security for the full and prompt payment of all amounts and obligations owing by Buyer to Seller hereunder, Buyer grants to Seller a security interest in all products supplied by Seller to Buyer hereunder and all proceeds thereof (collectively “Collateral”). Such security interest is and will continue to be a first-priority security interest in the Collateral whether by virtue of the priority accorded purchase-money security interests under the applicable provisions of the Uniform Commercial Code (the “UCC”) or otherwise. Buyer will take all actions Seller deems necessary or desirable to perfect such security interest and maintain its first priority. Buyer irrevocably authorizes Seller to file financing statements and amendments thereto in such places as Seller deems necessary or desirable (without Buyer's signature where permitted by the UCC). Upon request of Seller, Buyer will execute and deliver to Seller a separate security agreement under which Buyer grants to Seller a security interest in the Collateral, and any such separate security agreement shall control if any of its terms conflict with any terms hereof. If the products will be inventory in Buyer's hands, Buyer agrees that Seller may notify others claiming security interests in Buyer's inventory of Seller's purchase-money security interest prior to supplying any products to Buyer. If Buyer fails to pay or perform when due any amount or obligation owing to Seller hereunder or if Buyer becomes insolvent, or is subject to any bankruptcy or insolvency proceeding, then Seller may declare all amounts and obligations owing to Seller hereunder immediately due and payable and Seller shall have the rights and remedies of a secured party under the UCC.
6. Specifications
All products are subject to Seller’s standard tolerances for specifications. Seller reserves the right to make substitutions and modifications in the specifications of any products provided that such substitutions or modifications do not materially affect the general appearance or performance of the products or the purpose for which they can be used.
7. Limited Warranty and Disclaimer
a. Seller warrants that its products and services shall be free from defects for a period of one year from sale. A “defect” means, in relation to a product, that a product has any defect in material or workmanship which causes the product to fail to operate in accordance with the specifications provided by Seller, with consideration given to the overall performance of the product and, in relation to services, means that the service has not been performed in a competent, diligent manner. OTHER THAN THIS WARRANTY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS AND SERVICES PROVIDED BY THE SELLER TO THE BUYER ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, ORAL, EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES, REPRESENTATIONS AND CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability and Damages
a. In order to be entitled to make a valid claim under the warranty set forth in Section 7 above, Buyer shall promptly notify Seller of any alleged defect. In the event Seller determines that a claim under the warranty is valid, Seller shall, within a reasonable time, at its own option, repair or offer replacement products or services for the defective product or services, or make an appropriate refund or credit of monies paid by Buyer for the defective product or services.
b. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER 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 SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
c. IN NO EVENT SHALL SELLER'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 SELLER FOR THE GOODS AND SERVICES SOLD HEREUNDER.
9. Assumption of Risk and Indemnification
Buyer acknowledges and agrees that there are substantial risks, hazards and dangers inherent in the use of products sold by the Seller. Buyer assumes all risk and responsibility for its use and maintenance of the products, including compliance with all safety governmental requirements. Buyer shall indemnify, protect and hold harmless Seller, its respective affiliates, employees, officers, directors, shareholders, members, agents, representatives, permitted successors, and permitted assigns from and against all losses, damages, injuries, claims, demands and expenses, including legal expenses, of whatever nature, relating to personal injuries, property damage and any and all fees, fines and penalties of any kind arising out of the installation, use, condition or operation of any of the products, regardless of where, how and by whom used.
10. Delivery
In connection with the delivery of any product, Seller expressly disclaims responsibility for damage to driveways, lawns, sprinkler systems, gardens, septic tanks, drainfields and/or existing landscaping as a result of job site deliveries.
11. Disputes
a. Any controversy or claim that may arise out of or relate to the Seller’s products or services or these Terms and Conditions shall be resolved exclusively by binding arbitration at JAMS in Boston, Massachusetts by a single arbitrator.
b. All issues and questions concerning the construction, validity, enforcement and interpretation of these Terms and Conditions, and any claims arising out of the subject matter hereof (whether sounding in contract or tort) will be governed by the laws of the Commonwealth of Massachusetts, without resort to its choice of law rules.
c. No arbitration or other legal proceeding may be brought by the Buyer against the Seller more than one year after the cause of action at issue has accrued.
12. Proprietary Rights
All specifications, information, data, drawings, software and other items supplied by Seller to Buyer shall be and remain the sole property of the Seller and subject to all rights of the Seller in copyright, patent, or trademark.
13. Severability
The invalidity or unenforceability of any provision of these Terms of Use will not affect the validity or enforceability of any other provision thereof, all of which will remain in full force and effect. In the event of such finding of invalidity or unenforceability, the Parties shall endeavor to substitute the invalid or unenforceable provision(s) by such effective provision(s) as will most closely correspond with the original intention of the provision(s) so voided.
These Terms and Conditions apply to the sale all products and performance of all services by Stage 4 Designs, LLC (“Seller”) to and for the buyer identified in the signature block below (“Buyer”). Buyer’s signature on these Terms and Conditions on or before any deadline imposed by Seller, payment of a deposit or any part of the purchase price, written or oral authorization for Seller to proceed, or permitting delivery or installation of products by Seller to or on Buyer’s premises shall constitute acceptance by Buyer of these Terms and Conditions. Any terms or conditions proposed by Buyer inconsistent with or in addition to the terms and conditions of sale herein contained shall be void and of no effect unless specifically agreed to by Seller in a writing executed by the Seller. These Terms and Conditions state the entire understanding of the Seller and Buyer with respect to the subject matter hereof and supersede any prior or contemporaneous written or oral representations or agreements pertaining thereto.
2. Force Majeure
Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached its obligations, for any failure or delay in fulfilling or performing any obligations when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
3. Terms of Payment
Terms of payment are net cash thirty (30) days following the date of invoice. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and court costs. Amounts owed by Buyer with respect to which there is no dispute shall be paid without set off for any amounts which Buyer may claim are owed by Seller regardless of any other disputes which may exist.
4. Title and Risk of Loss
Title shall not pass to Buyer until Seller has been paid in full. Risk of loss shall pass to Buyer upon delivery to Buyer’s premises of those products ordered and delivered.
5. Security Interest
As security for the full and prompt payment of all amounts and obligations owing by Buyer to Seller hereunder, Buyer grants to Seller a security interest in all products supplied by Seller to Buyer hereunder and all proceeds thereof (collectively “Collateral”). Such security interest is and will continue to be a first-priority security interest in the Collateral whether by virtue of the priority accorded purchase-money security interests under the applicable provisions of the Uniform Commercial Code (the “UCC”) or otherwise. Buyer will take all actions Seller deems necessary or desirable to perfect such security interest and maintain its first priority. Buyer irrevocably authorizes Seller to file financing statements and amendments thereto in such places as Seller deems necessary or desirable (without Buyer's signature where permitted by the UCC). Upon request of Seller, Buyer will execute and deliver to Seller a separate security agreement under which Buyer grants to Seller a security interest in the Collateral, and any such separate security agreement shall control if any of its terms conflict with any terms hereof. If the products will be inventory in Buyer's hands, Buyer agrees that Seller may notify others claiming security interests in Buyer's inventory of Seller's purchase-money security interest prior to supplying any products to Buyer. If Buyer fails to pay or perform when due any amount or obligation owing to Seller hereunder or if Buyer becomes insolvent, or is subject to any bankruptcy or insolvency proceeding, then Seller may declare all amounts and obligations owing to Seller hereunder immediately due and payable and Seller shall have the rights and remedies of a secured party under the UCC.
6. Specifications
All products are subject to Seller’s standard tolerances for specifications. Seller reserves the right to make substitutions and modifications in the specifications of any products provided that such substitutions or modifications do not materially affect the general appearance or performance of the products or the purpose for which they can be used.
7. Limited Warranty and Disclaimer
a. Seller warrants that its products and services shall be free from defects for a period of one year from sale. A “defect” means, in relation to a product, that a product has any defect in material or workmanship which causes the product to fail to operate in accordance with the specifications provided by Seller, with consideration given to the overall performance of the product and, in relation to services, means that the service has not been performed in a competent, diligent manner. OTHER THAN THIS WARRANTY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS AND SERVICES PROVIDED BY THE SELLER TO THE BUYER ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, ORAL, EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES, REPRESENTATIONS AND CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability and Damages
a. In order to be entitled to make a valid claim under the warranty set forth in Section 7 above, Buyer shall promptly notify Seller of any alleged defect. In the event Seller determines that a claim under the warranty is valid, Seller shall, within a reasonable time, at its own option, repair or offer replacement products or services for the defective product or services, or make an appropriate refund or credit of monies paid by Buyer for the defective product or services.
b. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER 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 SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
c. IN NO EVENT SHALL SELLER'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 SELLER FOR THE GOODS AND SERVICES SOLD HEREUNDER.
9. Assumption of Risk and Indemnification
Buyer acknowledges and agrees that there are substantial risks, hazards and dangers inherent in the use of products sold by the Seller. Buyer assumes all risk and responsibility for its use and maintenance of the products, including compliance with all safety governmental requirements. Buyer shall indemnify, protect and hold harmless Seller, its respective affiliates, employees, officers, directors, shareholders, members, agents, representatives, permitted successors, and permitted assigns from and against all losses, damages, injuries, claims, demands and expenses, including legal expenses, of whatever nature, relating to personal injuries, property damage and any and all fees, fines and penalties of any kind arising out of the installation, use, condition or operation of any of the products, regardless of where, how and by whom used.
10. Delivery
In connection with the delivery of any product, Seller expressly disclaims responsibility for damage to driveways, lawns, sprinkler systems, gardens, septic tanks, drainfields and/or existing landscaping as a result of job site deliveries.
11. Disputes
a. Any controversy or claim that may arise out of or relate to the Seller’s products or services or these Terms and Conditions shall be resolved exclusively by binding arbitration at JAMS in Boston, Massachusetts by a single arbitrator.
b. All issues and questions concerning the construction, validity, enforcement and interpretation of these Terms and Conditions, and any claims arising out of the subject matter hereof (whether sounding in contract or tort) will be governed by the laws of the Commonwealth of Massachusetts, without resort to its choice of law rules.
c. No arbitration or other legal proceeding may be brought by the Buyer against the Seller more than one year after the cause of action at issue has accrued.
12. Proprietary Rights
All specifications, information, data, drawings, software and other items supplied by Seller to Buyer shall be and remain the sole property of the Seller and subject to all rights of the Seller in copyright, patent, or trademark.
13. Severability
The invalidity or unenforceability of any provision of these Terms of Use will not affect the validity or enforceability of any other provision thereof, all of which will remain in full force and effect. In the event of such finding of invalidity or unenforceability, the Parties shall endeavor to substitute the invalid or unenforceable provision(s) by such effective provision(s) as will most closely correspond with the original intention of the provision(s) so voided.