Conditions of Sale
SIGNATURE SIGNS, INC. "Working Quote" (WQ) Proposal And Agreement To Purchase (“Agreement”): Conditions And General Terms Of Sale and Delivery
1) PARTIES: This Agreement is solely between Signature Signs, Inc. (“Seller”) and Buyer. Seller is a licensed manufacturer of the INCISEON brand of products and holds rights to use and manufacture intellectual property of INCISEON. "INCISEON Representatives" are those persons who work on the order, but may or may not be directly related or employed to Signature Signs, Inc.
2) GENERAL: All offers and sales by Signature Signs, Inc. (“Seller”) to Buyer, with respect to products manufactured by Seller (“Products”), are expressly conditioned on Buyer's acceptance of the terms set forth in the Order Quotation/Purchase Agreement and these Conditions of Sale exclusively. Any purchase order or other communication from Buyer that contains terms or conditions in addition to or inconsistent with these Conditions of Sale will not apply to the purchase of any Products by Buyer or be used to waive, modify, vary, explain or supplement all or any part of these Conditions of Sale and are hereby objected to and rejected by Seller, unless expressly agreed upon in writing by Seller. Seller’s employees, and employees or agents of the INCISEON Representatives are not authorized to make additional oral agreements or provide oral promises that extend beyond the content of the written agreements.
3) TERMS: The purchase price for the goods and the cost of all deliveries thereof will be pre-paid by the Buyer. 50% of the purchase price shall be paid by the Buyer upon the Buyer’s acceptance or acknowledgement of an Order Quotation/Purchase Agreement with the balance of the purchase price due prior to shipment of the goods. In the event of non-payment on the due date, the Buyer will be required to pay interest at the rate of one and one half percent (1.5%) per month starting on the due date, without waiver or prejudice to any other rights or remedies the Seller may have.
4) SHIPMENTS: All products are shipped FOB Seller’s place of business in High Point, North Carolina. Risk of loss shall immediately and automatically transfer to the Buyer upon release of goods by Seller at Seller’s place of business to Buyer, Buyer's representative, or common carrier. The cost of any special packing or special handling requested by Buyer and agreed to by Seller shall be added to the price of the order. If Buyer causes or requests a shipment delay, or if Seller ships or delivers the products erroneously as a result of inaccurate, incomplete or misleading information supplied by Buyer or its agents or employees, storage and all other additional costs and risks shall be borne solely by Buyer. The Buyer shall have all responsibility for goods damaged or lost in transit as Seller's responsibility ceases upon release of goods to Buyer or common carrier.
5) DELIVERY: Delivery dates provided by Seller, or INCISEON representatives are estimates only. Delivery refers to Seller's delivery to shipper, which happens at Seller's place of business, F.O.B. Seller will make reasonable efforts to deliver in accordance with such dates; however, Seller will not be liable for failure to deliver as estimated. Customer change orders may affect delivery times and project completion dates. [Seller may make delivery installments, separately invoiced and payable without regard to subsequent deliveries. Delay in delivery of any installments will not relieve customer of its obligations to accept the initial or any remaining installments.] If shipments are delayed by customer, either due to nonpayment, failure to receive shipping instructions or delays in providing needed information or approvals, a fee equal to the greater of $10 per day or 0.0333% of the order value per day (but not less than $50) shall begin accruing five days past the date on which Seller is prepared to ship Product or in the case of delays caused by customer’s failure to provide needed information or approvals, thirty days past the original estimated delivery date provided to customer by Seller. Shipment shall not be made until any such charges are paid in full. Seller shall have no liability and Seller shall not apply any setoff for loss or damage due to delay of delivery, whether or not such loss or damage was made known to Seller, including, but not limited to, delivery delays caused by acts of God, war, labor difficulties, accidents, inability to obtain materials, delays of carriers, contractors or suppliers, or any other causes of any kind whatever beyond the control of Seller. Under no circumstances shall Seller be liable for any special, consequential, incidental, or indirect damages, losses, or expense arising directly or indirectly from delays or failure to give notice of delay.
6) TITLE: Title to the goods shall transfer from the Seller to the Buyer upon the Seller’s receipt of payment in full for the goods including payment of the purchase price, interest (if applicable), and any costs.
7) INSPECTION AND ACCEPTANCE: Claims by the Buyer for non-conforming goods must be made in writing, describe the nature of the claim with particularity, provide supporting photographs where possible, and delivered to the Seller within five (5) days following delivery to Buyer. After such five (5) day period, Buyer shall be deemed to have irrevocably and unconditionally accepted the goods, if not previously accepted. After such acceptance, Buyer shall have waived all right to reject the goods for any reason or to revoke acceptance. Buyer hereby agrees that such five (5) day period is a reasonable amount of time for such inspection, rejection of the goods, and submission of a claim to the Seller. Buyer shall have no right to order any change or modification to any goods previously ordered by Buyer or its representatives or cancel any pending order without Seller's written consent. The sole and exclusive remedy for the Buyer of a valid and verified claim of non-conforming goods shall be the Seller’s replacement or repair of the non-conforming goods or, at the election of the Seller, the payment to the Buyer of the purchase price for the order and the return to the Seller of the non-conforming goods. In the case of goods not ordered by the Buyer, the non-conforming goods shall be returned to Seller, at Seller’s expense, and through means of delivery chosen by Seller.
8) LIMITED WARRANTY TO BUYER: THE BUYER'S SOLE AND EXCLUSIVE WARRANTY IS THAT THE GOODS PURCHASED HEREUNDER SHALL, FOR A PERIOD OF ONE YEAR AFTER DELIVERY, BE FREE OF DEFECTS IN MATERIAL AND WORKMANSHIP AND CONFORM TO THOSE ELEMENTS LISTED IN THE PURCHASE AGREEMENT AS TO TYPE, QUANTITY, AND MATERIAL. COLORS MAY CHANGE OVER TIME WITHOUT REGARD TO WARRANTY PERIOD. INDIVIDUAL LEDS MAY HOTSPOT OR BE VIEWABLE. PERFECT DIFFUSION IS NOT POSSIBLE. COLORS MAY VARY WITHIN THE SAME TUBE. SELLER MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES TO BUYER. SELLER HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES, AND IN NO EVENT, WILL SELLER BE LIABLE TO BUYER FOR PERSONAL INJURY OR PROPERTY DAMAGE OR ANY OTHER LOSS, DAMAGE, COST OF REPAIRS OR INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED UPON WARRANTY, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION ARISING IN CONNECTION WITH THE DESIGN, MANUFACTURE, SALE, TRANSPORTATION, INSTALLATION, USE OR REPAIR OF THE GOODS SOLD BY SELLER. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT UNDER NO CIRCUMSTANCES, AND IN NO EVENT, SHALL SELLER'S LIABILITY, IF ANY, EXCEED THE ORDER PRICE OF THE GOODS IN QUESTION. THIS LIMITED WARRANTY EXCLUDES ANY LOSS OR DAMAGE DUE TO 1) MISUSE, MISHANDLING, NEGLECT, VANDALISM, OR ANY OTHER CAUSE OTHER THAN ORDINARY COMMERCIAL APPLICATION, OR 2) ADJUSTMENT, REPAIR, MODIFICATION OF THE GOODS OTHER THAN BY THE SELLER, OR 3) EXCESSIVE OR INADEQUATE HEATING OR VENTING, POWER FAILURES, POWER SURGES, OR OTHER POWER IRREGULARITIES, OR 4) SUBSTITUTION OF COMPONENTS, OR USE OF COMPONENTS OTHER THAN THOSE SUPPLIED BY SELLER.
9) SET-OFF: Buyer shall not be entitled to set-off any amounts due Buyer against any amount due Seller in connection with this order.
10) REMEDIES OF SELLER: The parties agree that the Purchase Agreement is the Buyer's Purchase Order and is evidence of indebtedness by the Buyer in favor of the Seller pursuant to North Carolina General Statute § 6-21.2. If Buyer breaches the Purchase Order, and Seller is required to retain an attorney for collection of the same, Buyer shall reimburse Seller attorney’s fees in the amount of fifteen percent (15%) of the outstanding balance pursuant to North Carolina General Statute § 6-21.2 plus interest (at the prevailing legal rate) and costs. All rights and remedies of Seller herein are in addition to, and shall not exclude, any rights or remedies that Seller may have by law.
11) INDEMNIFICATION: Seller shall not be responsible for any losses or damages sustained by the Buyer or any other person as a result of improper installation or misapplication of the products. Buyer shall defend, indemnify, and hold harmless Seller and its agents and employees, and INCISEON against any loss, damage, claim, suit, liability, judgment, or expense (including, without limitation, attorney's fees) arising out of or in connection with any injury, disease or death of persons (including, without limitation, Buyer's employees and agents) or damage to or loss of any property or the environment, or violation of any applicable laws or regulations resulting from or in connection with the sale, transportation, installation, use, or repair of the products by Buyer or of the information, designs, services, or other work supplied to Buyer, whether caused by the concurrent and/or contributory negligence of Buyer, Seller, or any of their agents, employees, or suppliers. The obligations, indemnities, and covenants contained in this paragraph shall survive the consummation or termination of this transaction.
12) END USER’S RESPONSIBILITIES: The end user/purchaser assumes all risk and liability for loss, damage, or injury to purchaser and purchaser’s property arising out of the use, misuse, improper installation, or misapplication of the goods sold that are not caused solely and directly by the negligence of the Seller.
13) NON-WAIVER: Seller's failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of any of Seller's rights or remedies hereunder, nor of its right to insist upon the strict performance of the same or any other term herein in the future. No waiver of any term or condition hereunder shall be valid unless in writing and signed by Seller's authorized representative.
14) INTELLECTUAL PROPERTY RIGHTS: The Seller shall retain sole and exclusive ownership of and sole and exclusive control to withdraw, amend, re-establish or change the terms of use of all intellectual property rights of the Seller or INCISEON owned or licensed patents, trademarks, designs, catalogues, pictures, website displays, website addresses, etc.
15) TAXES: The amount of any sales, excise, or other taxes, if any, applicable to the products shall be added to the purchase price and shall be paid by Buyer unless Buyer provides Seller with an exemption certificate acceptable to the taxing authorities. Any taxes which Seller may be required to pay or collect under any existing or future law, upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption of any of the products, including taxes upon or measured by the receipts from the sale thereof, shall be for the account of the Buyer, who shall promptly pay the amount thereof to Seller upon demand.
16) CONTROLLING PROVISIONS: No terms and conditions other than the terms and conditions contained herein shall be binding upon the Seller unless accepted by the Seller in a writing signed by the Seller’s authorized representative. All terms and conditions contained in any prior oral or written communication, including, without limitation, Buyer's purchase order, which are different from or in addition to the terms and conditions herein are hereby rejected and shall not be binding on the Seller, whether or not they would materially alter this document, and Seller hereby objects thereto. All prior proposals, negotiations and representations, if any, are merged herein. Buyer will be deemed to have assented to all terms and conditions contained herein if any part of the products are shipped or payment is made by the Buyer in connection with the products.
17) SEVERABILITY: These terms and conditions of this order shall be construed as if all parties jointly prepared these terms and conditions of sale and any uncertainty or ambiguity shall not be interpreted against any one party. If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable and the terms and conditions herein shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never been made.
18) GOVERNING LAW: This transaction shall be governed in all respects by the laws of the State of North Carolina (excluding choice of law provisions). All actions, regardless of form, arising out of or related to this transaction or the products sold hereunder must be brought against Seller within the applicable statutory period, but in no event more than ONE (1) YEAR after the date of invoice.
19) VENUE: Buyer and Seller agree that the venue for any suit filed that pertains or relates to this order shall rest exclusively with the Superior Court for the County of Guilford, North Carolina or the United States District Court for the Middle District of North Carolina.
20) ENTIRE AGREEMENT: The Order Quotation/Purchase Agreement constitutes the entire, complete, and exclusive agreement between the parties with respect to the subject matter hereof and contains all the agreements and conditions of sale; no course of dealing or usage of the trade shall be applicable unless expressly incorporated herein. The terms and conditions contained herein may not be added to, modified, superseded, or otherwise altered. All transactions shall be governed solely by the terms and conditions contained herein.
21) OFFER, ACCEPTANCE: Written or verbal acceptance of the Order Quotation/Purchase Agreement, or the issuance of a Purchase Order or Purchase Order Number shall constitute full acceptance of the Proposal and Agreement to Purchase and all terms and conditions set forth above. All terms and conditions proposed or imposed by Buyer are null and void and are expressly rejected by the Seller. Any terms, conditions, or modifications attached to a Purchase Order or otherwise imposed or proposed by the Buyer are expressly rejected and null and void, and the terms and conditions set forth above supersede any proposed terms and conditions attached or proposed by Buyer, whether or not Buyer was aware of conflicting terms and conditions.
22) CAVEAT EMPTOR: Buyer is required to do proper due diligence regarding the terms and conditions set forth above, and due diligence regarding conflicting terms and conditions that may be in place from Buyer's company, clients, customers, agents, representatives, parent corporations, et. al. The payment for goods and services by Buyer constitutes sole acceptance of the above terms and conditions regardless of whether the Purchase Agreement has been signed.