Terms & Conditions
1. Seller Product and Services. King Retail Solutions, Inc. (hereinafter “Seller”) designs and manufactures interior décor and signage (“Goods” or “Display”), and provides Display installation services and design only services (“Services”). Seller agrees to sell and Buyer agrees to purchase from Seller the Goods and/or Services specified in the attached Order Acknowledgement in conformity with the applicable specifications and approved drawings, if any.
2. ENTIRE CONTRACT.
2.1 Unless a separate written agreement is signed by both parties, the entire contract between Buyer and Seller is contained in the Order Acknowledgment including these General Terms and Conditions which are incorporated into the Order Acknowledgment (which merges any prior negotiations, alleged oral promises or conditions, Seller’s Quotation, and Buyer’s Purchase Order herein). Seller’s obligations under the Order Acknowledgment are expressly conditioned upon Buyer’s express assent to any and all terms contained in the Order Acknowledgment that are additional to or different from any terms of Buyer’s Purchase Order. Additional or inconsistent terms not set forth in the Order Acknowledgment will not become a part of the contract unless expressly accepted in writing by Seller. Seller’s performance under the Order Acknowledgment does not and will not constitute acceptance of provisions of Buyer’s Purchase Order that are different from or additional to the terms of Seller’s Quotation and the Order Acknowledgment and any such different or additional provisions are hereby expressly rejected and are void.
2.2 Notwithstanding the foregoing, the contract binds Seller only when approved by an authorized representative of Seller.
3. SHIPPING; DELIVERY; INSPECTION; ACCEPTANCE; or REJECTION.
3.1 Shipping dates for Goods sold and dates and times for delivery are estimates only and are not guaranteed by Seller. Seller may deliver the Goods at any reasonable time before or after any specified delivery date. Seller will package the Goods for shipment, as it deems appropriate. Seller may deliver the Goods all at one time or in portions. Late delivery of any partial shipment will not give Buyer the right to refuse to receive any other shipment. All errors, clerical or otherwise, are subject to correction by Seller.
3.2 Unless the attached Order Acknowledgment includes delivery in the pricing, all shipments of Goods will be freight-collect except where an alternative method of delivery is agreed upon. All shipments are “FOB Origin”.
3.3 Upon delivery of Goods, Buyer shall examine the shipment to determine whether any item or items are missing, damaged, defective, or nonconforming. Buyer is responsible for promptly notifying Seller if Buyer believes items are missing, defective, or non-conforming and for promptly notifying the carrier and Seller if Buyer believes any of the Goods are damaged during transit. Buyer will store any rejected Goods separately and make them available for Seller or its agent to inspect and investigate any claim. Seller will replace missing items or Goods proven to be properly rejected due to being defective or non-conforming, or damaged prior to shipment if promptly notified by Buyer following delivery. Seller will assist Buyer with freight claims for loss or damage to Goods that occurs during transit if promptly notified by Buyer following delivery.
4. PAYMENT TERMS/LATE CHARGES.
4.1 Unless otherwise provided in the Order Acknowledgment, Seller shall invoice Buyer for Goods and/or Services and payment shall be due and payable in accordance with the payment terms included in Seller’s Quotation. The payment of the purchase price by Buyer is not contingent on receipt of funds from any source. If requested by Buyer, Seller will provide Buyer with conditional lien waivers within ten (10) days after receipt of final payment.
4.2 Any past due invoice or Buyer account balance shall be assessed and Buyer agrees to pay a late charge of 1 ½ % per month (18% per annum).
5. CHANGES. Any changes in the scope of the contract shall be processed through a Change Order. Change requests or authorizations shall become binding changes or additions to the contract only when in writing and executed by authorized representatives of the parties or when confirmed by a facsimile or an electronic exchange between the parties.
6. EXCLUSIONS. Unless otherwise expressly provided in the Order Acknowledgment, Seller has no responsibility for (i) primary electric circuitry from source to Display; (ii) inaccuracies or inadequacies of information provided by Buyer; (iii) changes in price due to request by Buyer to use other than standard type styles, colors, or finishes; (iv) delays due to occurrences outside of Seller’s control; (v) increase in installation charges due to additional trips to job site for reasons not within Seller’s control; (vi) additional expenses resulting from inaccessibility to the installation area caused by others or due to other than normal conditions; (vii) changes required due to unspecified architectural or engineered elements or building conditions; and (viii) inaccuracies or inadequacies of drawings or measurements submitted by the Buyer for installation.
7. DESIGN/GRAPHICS. Unless otherwise expressly provided in the Order Acknowledgment, Seller retains all rights regarding the design and graphics including (i) rights to all design specifications and artwork (including the materials created) created by Seller; and (ii) all rights to use any and all designs and artwork for promotional marketing purposes and the process Seller creates for other projects. Seller grants Buyer a non-exclusive license to use the materials created by Seller indefinitely provided Buyer makes all payments owed to Seller.
8. WARRANTY. For a period of one (1) year following acceptance of the Goods by Buyer, Seller warrants that the Goods will (i) conform to the specifications and other provisions set forth in Seller’s Quotation; (ii) be free from defects in materials, manufacture/fabrication, or assembly; and (iii) be free from liens and encumbrances. This express warranty will be extended for an additional one (1) year (for a total warranty period of two (2) years following acceptance of the Goods by Buyer) if Seller is engaged by Buyer to provide the installation services of the Goods. During the warranty period (or extended warranty period if installation of Goods is provided by Seller), Buyer’s sole remedy under this express warranty is replacement or repair of the defective Good as determined by Seller, in Seller’s sole discretion. Seller shall not be responsible for and the foregoing warranty will not apply to any defects, non-conformities, or damages relating to the Goods caused by other than normal and proper usage; incorrect installation (unless said incorrect installation is performed by Seller) and/or maintenance or repair by a party other than Seller; misuse or abuse; alterations made by others without the written consent of Seller; or defects arising from materials or designs supplied by Buyer. As used herein “Good” has the meaning of “Good” provided in the Oregon Uniform Commercial Code.
9. LIMITATION OF WARRANTY. EXCEPT AS PROVIDED IN SECTION 8, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, THAT EXTEND BEYOND THE DESCRIPTION OF THE GOODS AND SERVICES IN SELLER’S QUOTATION/ORDER ACKNOWLEDGMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
10. LIMITATION OF LIABILITY. SELLER’S LIABILITY SHALL BE LIMITED TO THE COST OF REPLACING DULY REJECTED GOODS TO THE POINT OF DELIVERY SPECIFIED IN SELLER’S QUOTATION/ORDER ACKNOWLEDGMENT WITHIN A REASONABLE PERIOD OF TIME FOLLOWING PROPER AND TIMELY INSPECTION AND REJECTION BY BUYER. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO BUYER FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, OF ANY NATURE WHATSOEVER, ARISING FROM NONCONFORMITY OF GOODS OR SERVICES OR DELAY IN SHIPMENT, OR ANY OTHER BREACH BY SELLER.
11. TRADE TERMS. Except to the extent that these terms and conditions expressly provide for a different interpretation, trade terms regarding Goods shall be interpreted in accordance with the Oregon Uniform Commercial Code in effect as of the date of the Order Acknowledgment.
DEFAULT. Time is of the essence of the contract.
11.1 In the event the Buyer defaults in any payment due hereunder or if Buyer breaches or is otherwise in default under any other term or condition of the contract or any other contract between the parties, Seller may, at its option, defer delivery of the Goods or Services until the default is cured, or treat the default as a repudiation by Buyer of the contract in its entirety, and terminate the contract, resell any Goods retained by Seller, and hold Buyer liable for such damages as Seller has or may incur, including consequential and incidental damages. For purposes of the contract, Buyer’s insolvency shall be a default.
11.2 Should any action be filed to enforce this agreement or any of the terms thereof the prevailing party shall be entitled to an award of its reasonable attorney fees incurred in such proceeding at trial, or on appeal or in arbitration. Jurisdiction shall lie in the courts of the State of Oregon or the District Court for the District of Oregon and venue shall lie in Lane County, Oregon.
12. FAILURE TO TAKE DELIVERY. If Buyer fails to take delivery of Goods or any part thereof, the Goods not delivered shall be held at Buyer’s sole risk and at Buyer’s sole cost and expense in all respects. Nevertheless, Seller, acting as Buyer’s agent and at Buyer’s expense, may thereafter store, insure, and/or otherwise protect such Goods or may resell same for Buyer’s account.
13. CANCELLATION. Except as otherwise expressly provided in the Order Acknowledgment, the contract or any portion of the contract may be cancelled by Buyer without cause upon providing Seller written reasonable advanced notice of cancellation. In the event of any such cancellation without cause, Buyer shall pay Seller for Seller’s work in process on a time and material basis at rates prevailing at the time of cancellation.
14. FORCE MAJEURE. Seller shall be free from any liability for delay or failure in shipment of Goods or delivery of Services arising from strikes, lockouts, labor troubles of any kind, accidents, perils of the sea, fire, earthquake, civil commotion, war or consequences of war, government acts, restrictions or requisitions, failure of suppliers to deliver, bankruptcy or insolvency of suppliers, suspension of shipping facilities, act or default of carrier or any other contingency of whatsoever nature beyond Seller’s control affecting production or shipment of the Goods or providing Services, including disturbances existing on the date of the contract. In such a situation, if shipment or delivery is not made during the period contracted for, Buyer shall accept delivery under the contract when shipment is made; provided, however, Buyer shall not be obligated to accept delivery if shipment is not made within a reasonable time after the cessation of the aforementioned impediments or causes.
15. PERMITS. Goods and Services included in the Order Acknowledgment do not include any required permits, bid or performance bond premiums, or other requirements of governing authorities of the project location. Buyer is solely responsible for all required permits, payment and/or performance bonds, and all other local requirements. Buyer’s inability or failure to secure required permits, bonds, or to satisfy other local requirements that results in cancellation of the contract shall not relieve Buyer of its obligation for payment to Seller pursuant to Section 14 above.
16. TAXES. Unless expressly directed otherwise by Buyer, Seller will collect and remit any required sales tax on Buyer’s behalf. Sales taxes so remitted shall be reimbursed by Buyer.
17. GENERAL. The rights and obligations of the parties under the contract shall be governed by the laws of the State of Oregon, U.S.A. in effect as of the date of the Order Acknowledgment, including without limitation the provisions of the Oregon Uniform Commercial Code, but without regard to conflicts of law principles. If any provision of the Order Acknowledgment is determined by any court or arbitrator to be unenforceable, the provision shall be deleted, and the balance of the Order Acknowledgment shall be binding upon the parties. Any agreement signed and sent by facsimile shall be treated as a binding original.
18. WAIVER. No waiver of the breach of any provision of the contract shall be deemed a waiver of any preceding or succeeding breach or shall any such waiver be deemed to be a modification of any of the terms hereof.
19. ASSUMPTION OF LIABILITY. It is understood and agreed that Buyer assumes all risks and liability resulting from the use of the Goods. Seller neither assumes nor authorizes any person to assume for Seller any of the liability in connection with the sale or use of the Goods.
ACKNOWLEDGMENT: By continuing to use the online ordering store, Buyer agrees that Buyer has read and hereby approves the foregoing Terms and Conditions.
last updated 11/9/15