AGREEMENT AS TO STANDARD TERMS AND CONDITIONS
This Agreement as to Standard Terms and Conditions (“Agreement”), by Sports View Television Corporation (“Seller”) and any entity, person or party (the “Buyer”), that purchases any goods or services from Seller.
Any sales or services provided by Seller and its affiliates are made subject to this Agreement. Seller expressly rejects any different or additional terms or conditions contained in any document submitted by Buyer. Seller’s provision of credit, acceptance of any purchase order, sale of any goods or services and/or performance of any service is expressly made conditional on Buyer’s assent to this Agreement.
1. TERMS OF PAYMENT: Subject to the provisions contained in this Agreement, for the sale of any merchandise or equipment, unless otherwise agreed, Buyer shall pay a 50% down payment of the project amount and the remaining amount net 30 days after the completion of the project. All other invoices are net 30 days from the date of the invoice unless otherwise agreed in writing. Buyer agrees to pay interest on all amounts not paid within 30 days at the rate of 8% per annum, or the maximum amount provided by law. In the event, Buyer fails to make payment in full within the time period set forth on any invoice or within the time period expressly agreed upon in writing by the parties, such failure to pay on time constitutes a material breach of contract by Buyer. If Buyer breaches any contract with Seller, Seller is entitled to suspend production, shipment, service or delivery under this or any other contract between Buyer and Seller.
In addition, Seller shall be entitled to all other remedies permitted to Seller by law, equity and this contract. No payment by Buyer or receipt by Seller of a lesser amount than then due and owing by Buyer pursuant to all outstanding invoices shall be deemed to be other than on account of the earliest dated invoices, nor shall any endorsement or statement on or accompanying any check or other form of remittance by Buyer be deemed an accord and satisfaction without Seller’s written consent. Seller may accept such check or another form of remittance as partial payment without prejudice to Seller’s right to recover the balance of such invoice amounts or pursue any other remedy provided by law or equity.
2. ACCEPTANCE OF GOODS. Buyer agrees that it has accepted the goods described in Seller’s invoice to Buyer upon a transfer of ownership of the goods, delivery of the goods or any other receipt of the goods by Buyer, whichever occurs first in time. The risk of loss of the goods shall pass to Buyer upon acceptance of the goods, as described herein. Once Buyer has signed off on the goods, there are no returns unless otherwise agreed to by the parties in writing.
3. BOX SALE. Buyer agrees that it has 7 days to inspect goods subject to a box sale. After the 7 day inspection period, all goods sold are “as is” final sale and subject only to any manufacturer warranty.
4. CREDIT APPROVAL. Performance of work and shipment of material will at all times be subject to approval by Seller’s Credit Department. Seller may at any time condition its performance upon receipt of advanced payment, acceptable security, or agreement to other reasonable credit-related terms and conditions. The Seller may decline to make any shipment or delivery or perform any work based upon Seller’s failure to approve Buyer for credit. Buyer represents that in placing its order it is not insolvent as that term is defined in the Uniform Commercial Code Section 1-201, and, should it become insolvent before delivery of the goods or any service, it will immediately notify Seller and not accept such goods or service. Failure to notify Seller shall be deemed to constitute a written representation of Buyer’s solvency as of the date of shipment.
5. ACCEPTANCE OF ORDERS. All orders are received subject to acceptance and shall be accepted only by authorized personnel of Seller on Seller’s acknowledgment forms for shipment when available and at Seller’s prices in effect at the time of shipment unless otherwise stated. All orders must be firm commitments giving complete item description including quoted prices, when applicable, quantity and shipping requirements. If there is a conflict between the specification referenced in an order and the exact requirements contained in an order, Seller has the option to ship either product. Any ambiguities contained in an order will be construed against the Buyer.
6. DELIVERY AND INSPECTION.
a. Shipment and service schedules are approximate and are based upon market and production conditions at the time of Seller’s acceptance of Buyer’s order. Buyer agrees that Seller shall not be liable for failing to meet any shipment or delivery schedules. Buyer further agrees that time is not of the essence of any order placed with Seller.
b. In the event either party’s performance hereunder is delayed or made impossible or commercially impracticable due to causes such as fire, explosion, strike or other difference with workers, shortage of energy sources, facility, material or labor, delay in or lack of transportation, temporary or permanent plant shutdown, breakdown or accident, compliance with or other action taken to carry out the intent or purpose of any law, regulation, or other requirement of any governmental authority, or any cause beyond that party’s reasonable control, that party shall have such additional time within which to perform this contract as may be reasonably necessary under the circumstances. However, the obligation of Buyer to pay for goods delivered is never suspended. In addition, if due to force majeure or any other cause, Seller is unable to produce sufficient goods to meet all demands from its customers, Seller shall have the right to allocate production among its customers and plants in any manner in which Seller may determine to be equitable.
c. Buyer shall promptly inspect the goods upon delivery. If upon receipt by Buyer, goods shall appear to not conform to the contract, Buyer shall immediately notify Seller of such condition and afford Seller a reasonable opportunity to inspect the goods and cure. Buyer agrees to immediately provide Seller with traceability of any rejected goods. Failure to provide traceability of any rejected goods will be deemed an acceptance of the goods. No goods shall be returned without Seller’s prior written consent. Custom manufactured goods are not returnable.
7. CLAIMS. The liability of Seller arising out of the supplying or selling of the goods, or their use by the Buyer, or the Buyer’s customers, and whether based under breach of contract or warranty, in tort (including negligence or strict liability), or otherwise, shall not in any event exceed the purchase price of the goods. The remedies set forth above shall constitute the sole and exclusive remedies of Buyer and the sole and exclusive liability of the Seller whether the claims of Buyer are based on contract, warranty, tort (including negligent or strict liability) or otherwise. Under no circumstances shall the Seller be liable to the Buyer for any special, consequential, incidental or punitive damages, whether based upon loss of goodwill, lost profits, work stoppage, personal injury, disease, death, property damage, delay, impairment of other goods, property damage, loss of use, expense of recall or otherwise.
8. ACCESS TO FACILITY. Buyer agrees to provide Seller with full access to their facility or any facility that installation is to take place at no cost to Seller on the date and time scheduled for installation. Buyer agrees to provide Seller with working space, electricity, and a local telephone line. If these requirements are lacking, Seller is not obligated to provide service to Buyer. If Seller is unable to access Buyer’s location, Seller may not be able to perform the services requested and may charge an additional fee for a follow-up service call. Costs related to return trips associated with installation issues beyond Seller’s control will be assessed upon work to be completed, time required to complete, travel time to site and cost, if any, for said travel. A change order request will be generated with the assessed costs of the return trip and submitted for approval as outlined above, before the return trip commences. Return trips will be scheduled and will occur upon receipt of PO for said return trip charges.
9. FAILURE TO ACCEPT AND CUSTOMER CANCELLATIONS.
a. Except where and only to the extent that Seller has agreed in writing to accumulate goods for Buyer’s account for later shipment, and without otherwise limiting the Seller’s remedies available under the law, if Buyer requests a delay in shipment otherwise ready for shipment, or Buyer fails to release goods for shipment or Buyer fails to provide information or documentation necessary for the delivery of goods otherwise ready for shipment, then Seller shall have the following rights and remedies: (1) goods may be placed in storage and Seller may charge Buyer reasonable storage fees commencing 3 days after Seller’s notice to Buyer that the goods are available for shipment, and (2) Seller may immediately invoice Buyer for the goods. Failure to accept goods ready for shipment will not release Buyer from its obligation to pay for the goods in accordance with the terms contained in this Agreement. If Buyer does not intend to pick up goods ready for shipment, Buyer must immediately notify Seller of such delay.
b. Without otherwise limiting Seller’s remedies, if Buyer cancels an order, Seller may impose and Buyer agrees to pay a reasonable cancellation fee within Seller’s discretion. Termination and cancellation charges will be invoiced to Buyer at 100% of the selling price if manufacture or processing has commenced. If Buyer cancels any order and Seller re-sells the goods, Buyer shall be responsible, at a minimum, for a price difference received by Seller. This provision does not limit any other remedies that Seller has at law or in equity. All down payments for special order items or equipment are non-refundable. If for any reason, Buyer cancels any order, it agrees to forfeit its down payment.
c. Buyer cannot modify, cancel or otherwise alter orders without Seller’s written consent. Any such cancellation, modification, or alteration shall be subject to conditions as negotiated at such time, which shall include protection of Seller against loss.
10. TERMINATION. Seller may terminate or cancel (in whole or in part) any services for convenience or for any other reason at any time upon thirty (30) days prior written notice. Seller may immediately terminate the agreement or cancel any services, and you will not be entitled to a refund if you fail to provide a location that is an office environment that is conducive to the service(s) to be performed, if you insist on services to be provided at varying locations, if you threaten Seller’s technician, employees, or contractors or if Buyer’s location or the general area is dangerous, infested with any insects, rodents, pests, biohazards, human or animal excrement and/or chemicals, or is determined for any reason to be unsafe by Seller’s technicians, employees or contractors. Discovery of harmful or hazardous building materials including but not limited to asbestos will require a stoppage in work until such hazardous substance has been removed or contained and have been deemed safe by the local health authority. Removal or containment and the costs associated are the responsibility of others. Any costs relating to installation scheduling, delays, additional materials required to complete the scope of work or increased labor hours arising from or associated with the removal or containment of a hazardous building substance will be the sole responsibility of the Buyer to cover regardless of the inclusion or omission of said costs within the scope of work or proposal. Final costs will be assessed on a case by case basis and will be presented as a change order to the project.
11. REMEDIES UPON FAILURE TO PAY. In the event Buyer fails to make payment of the invoice price or any portion thereunder when due, Seller shall have the right to: (1) suspend performance with respect to any pending order or shipment of products, and (2) employ an attorney to collect the balance due and Buyer agrees to pay all collection costs and expenses incurred by Seller, including Seller’s reasonable attorney fees.
12. WARRANTY. DISCLAIMERS: SELLER DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR LOSS OF BUSINESS. SELLER WARRANTS THAT THE GOODS FURNISHED HEREUNDER WILL BE PROVIDED IN ACCORDANCE WITH THE SPECIFICATIONS CONTAINED ON THE INVOICE. (1) BUYER AGREES THAT NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR ANY OTHER REPRESENTATION OR WARRANTY (OTHER THAN TITLE), WHETHER EXPRESS OR IMPLIED, IS MADE RESPECTING SAID GOODS, OR THE PRODUCTION THEREOF AND THERE ARE NO OTHER WARRANTIES EITHER EXPRESSED OR IMPLIED BY FACT OR LAW. SELLER IS NOT LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, EXPENSES, COSTS, PROFITS, LOST SAVINGS OR EARNINGS, OR OTHER LIABILITY ARISING OUT OF OR RELATED TO THE RELATIONSHIP BETWEEN BUYER AND SELLER OR ANY CLAIM BY ANY THIRD PARTY. Seller will provide buyer with a 30 day warranty on the sale of any merchandise or equipment and a 1 year warranty on all labor. Additional protection plans are available for purchase.
13. NON-SOLICITATION. During the performance of any services performed by Seller and for 12 months thereafter, Buyer agrees that it will not directly or indirectly solicit for employment, employ or utilize the services of, any person who is an employee of Seller or its subcontractors and assignees who has been involved in activities related to the sale or service of any equipment or merchandise by Seller (in the capacity of an employee, consultant, independent contractor, or as an employee of a subcontractor or consultant). In the event that Buyer employs or utilizers the services of any person who is an employee of Seller or its subcontractor or consultant (in the capacity of an employee, consultant, independent contractor, or as an employee or a subcontractor or consultant), Buyer will be liable to Seller as liquidated damages, and not a penalty, an amount equal to the aggregate compensation (including bonuses) paid by Seller, its subcontractors, assignees, or any of its affiliates to such employee during the 6 months prior to the date such individual provides services to Buyer.
14. QUOTATIONS/CHANGES/CHANGE ORDERS. Buyer agrees that all quotations are only based upon the information provided by Buyer to Seller. If Seller begins any job and it determines that the condition of the property makes it more difficult to complete performance or there are any unforeseen circumstances, Buyer agrees to pay any additional amounts due and owing to complete performance. Immaterial changes to the service(s) performed may be made by Seller without the Buyer’s consent. If a change order is needed on a job that is required to complete the proposed work, all work will stop until the assessed change order costs are approved by an authorized representative of the Buyer. If either party wishes to change the scope or performance or any service, it shall submit details of the requested change to the other party in writing. Seller will provide a written estimate of the likely time to implement the change, any necessary fees that will be incurred or other charges for service(s) arising from the change, the likely effect of the change on the service(s) and any other impact the change may have on the performance of this Agreement or the contract. Seller is entitled to charge a fee for any time it spends assessing and documenting a change request or written estimate. Promptly after the receipt of a written estimate, the parties shall negotiate and agree in writing on the terms of such change/change order. All change orders requiring return trip labor and/or the ordering of additional equipment will be scheduled and/or ordered after receiving a PO and an applicable down payments for said return trip charges. In the event that a change order cannot be paid within the stated payment terms timeline, for any reason, all work associated with the change order will stop and not recommence until payment can be processed. Additionally, due to unforeseen site conditions and pending final onsite review, “like” equipment replacements may be required to fulfill this scope of work.
15. INJURIES/INSURANCE. Unless otherwise agreed to in writing, Buyer agrees that if any of Seller’s employees are injured while installing or servicing any equipment or merchandise at Buyer’s facility or any other location as directed by Buyer, that Buyer shall be fully liable for any injuries sustained. Buyer agrees that during the term of this Agreement or any contract between the parties, and for a period of one year after termination thereof, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which include, but is not limited to, commercial general liability (including product liability) in a sum no less than $2,000,000 with a financially sound an reputable insurer. Upon Seller’s request, Buyer shall provide Seller with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in this Agreement. The certificate of insurance shall name Seller as an additional insured. Buyer shall provide Seller with 7 days advance written notice in the event of a cancellation or material change in Buyer’s insurance policy. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Seller’s insurers and Seller.
16. LABOR. Unless otherwise noted, due to differing labor laws all quotations and scopes of work assume Non-Union labor at standard daytime weekday rates. Union, night-time, weekend and holiday rates are available and based on geographic location. Union, night-time, weekend, and holiday labor will incur additional costs, and will be billed accordingly. If it is determined after an installation has begun that union labor will be required for the completion of the scope of work, a change order will be processed for the additional charges for said labor and will not be scheduled or commenced prior to the approval of said change order and the receipt of required purchase order and/or applicable down payment for the change in services. Please note labor on a project starts prior to having resources on site. If a project is cancelled customer will be billed for labor used on project.
17. PERMITS: Unless otherwise stated, due to differing electrical codes, the service and costs associated with pulling a permit are not included within this scope of work and/or proposal. It is assumed that a permit is not required for the work being performed by Seller. If requested and required, Seller may, if licensed, or through sub-contract, pull a low voltage permit for the installation services outlined in this scope; however, it will be the sole responsibility of the Buyer to cover any and all costs, regardless of inclusion or omission of said costs in the original quote.Costs will be calculated based upon the cost of said permit plus the labor time required for Seller’s representative to present in front of local authorities and the procurement of said permit. In the event Seller is requested to pull a low voltage permit, Buyer agrees within 48 hours of request to provide all the required USA UL listing, local code and commercial fire rating documentation as required by the local authorities for any Buyer provided equipment to obtain said permit.
18. TAXES, DUTIES, FREIGHT, WORK VISAS, RENTAL EQUIPMENT, ONSITE STORAGE AND SECURITY. Unless otherwise noted; freight, duties, import/export expenses, brokerage fees, work visas, equipment rentals (including but not limited to, equipment lifts, scaffolding, or specialized tools), local, state and federal taxes are not included in this proposal. All costs for onsite storage are not included in this proposal and are to be provided by others. Seller shall not be responsible for loss, damage or theft of delivered equipment, whether Seller or owner furnished once arrived onsite. If requested and/or required Seller can provide secure onsite storage at an additional cost.
19. THIRD PARTY OR OWNER FURNISHED EQUIPMENT (“OFE”). Seller does not guaranty or warrant the performance or quality of any Buyer or third party furnished equipment. Seller is not responsible for any damage or fault in functionality of any third party, owner furnished, or supporting systems equipment as a direct or indirect result adding to, improving, updating, upgrading, handling, removal, installation or configuration of said equipment, updating, reconfiguring, or reprogramming of any source code or firmware. Examples of supporting equipment include but are not limited to; existing control software or programs, networking equipment (switches, routers, firewalls and their configurations), wiring and cabling, slot or other supporting gaming machines, lighting equipment and/or controls, digital signage hardware/software and video distribution equipment.
20. EXISTING INSTALLATIONS, SYSTEM ADD-ONS, MIGRATION, UPDATES, IMPROVEMENTS OR INTEGRATION. Seller will make every effort to maintain the end user experience while completing system add-on, migration, update, improvement, or integration services at a location that is being renovated or improved upon where work is to commence while the location maintains standard operation during said renovations or improvements. Some or all functionality and control of existing equipment and systems, however, may be lost during this time as a result of completing a system add-on, migration, update, improvement or integration. Seller will not guaranty a percentage of uptime during the course of completing the stated scope of work. The Buyer and/or end user agrees that before any work can begin a thorough site assessment, site survey, system and or program audit, if applicable, may be required. The Buyer and/or end user shall be responsible for the additional costs for these services regardless of the inclusion or omission of these costs within the proposal(s) provided. The Buyer and/or end user agrees and will present Seller will any and all un-compiled programming source code, scaled or fully dimensioned building plans (.pdf or .dwg-preferred) prior to the above stated site assessments. If this information is not provided as requested may delay final engineering, product ordering, programming, and installation timelines by an undetermined length and will void any scheduling agreements previously agreed upon and will increase costs which are to be assessed at the time of occurrence. Additionally, the Buyer and/or end user agrees to make the space available for a reasonable block of time to minimize return trips to site and phased installation. Timelines to be determined between the Buyer and/or end user and Seller’s project management at the commencement of project. Deviations to the agreed upon timelines and or denial of access or reasonable access to the space will increase installation timelines and costs which will be considered out of scope and assessed as a change order. Unless otherwise stated all proposals assume the installation process will occur in one phase.
21. BUILDING PROVISIONS. All structural and/or building modifications, including but not limited to; modifications to furniture, millwork, or architectural element are to be performed by others not affiliated with Seller. A few examples of such modifications would include but are not limited to; cutting an opening into a conference room table to install a recessed cable cubby or the installation of backer board for a wall mounted display or equipment rack. All costs associated with these services are the responsibility of Buyer.
22. PROVISION AND INSTALLATION. All equipment not listed in Seller’s proposal is to be provided, installed and configured by others and paid for by Buyer.
23. ELECTRICAL. Due to differing local codes and licensing restrictions, Seller does not handle, provide or install any high voltage wiring, electrical conduit, electrical fittings, or any other high voltage electrical equipment even if the provision or installation of said equipment or supplies is in relation to a low voltage installation; e.g. Seller does not supply or install conduit as a low voltage requirement for low voltage wiring. The costs for handling, provision or installation of any of the above mentioned equipment or services is never included in any of our proposals or assumed as the responsibility in any of our scopes of work. Unless otherwise specified or required by state or local code, all circuits for AV equipment should be on the same phase and should be at a minimum 20 amp.
24. EQUIPMENT AVAILABILITY AND PRICING. Although Seller maintains an extensive product offering in-stock, some items may be special order or require a longer than typical transit time from manufacturer to our warehouse. The standard, non-expedited, lead time for most products is 30 days; the 30 day time period begins the day the equipment order is placed by Seller after Seller receives a non-cancellable purchase order for the full proposed amount and any applicable down payments. In addition, some items may be built-to-order and are considered “Special Order” inventory. Special Order inventory may require additional lead times for delivery and cannot be returned or exchanged. All equipment pricing and availability is subject to change without notice. Equipment pricing is dependent on availability and full contract award. Reduction in equipment quantities or number of installation locations may result in increased overall costs. (i.e. a bid request for special pricing on 100 units means that the special pricing per unit is held for a purchase of 100 units at one time or within a time period specified by the scope. If applicable, rebate credits may be provided once the quantity purchase threshold has been met. A reduction in the quantity of purchased items or at one time or a failure to meet the pre-determined purchase threshold of the total quantity within the specified time period will result in overall increased costs per item and/or loss or rebate credit). Unless otherwise noted, all proposals are valid for 30 days. After which equipment availability and pricing must be re-evaluated.
25. SECURITY ESCORTS AND BADGING. Seller will not reimburse any costs associated with security guards, security escort services, overtime for store employees, badging or general contracting services. If required, all proposals and scopes of work assume the above will be provided by the Buyer for the duration of Seller’s onsite labor services and security access will be coordinated and provided by the Buyer.
26. INTELLECTUAL PROPERTY. Unless otherwise stated, all programming, equipment and systems designs related to this proposal and scope of work and the like are and remain the intellectual property of Seller indefinitely. Unless otherwise agreed upon, Seller shall not provide design documentation or uncompiled programming code.
27. RELATIONSHIP OF THE PARTIES. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
28. APPLICABLE LAW. This Agreement shall be governed by the law of the State of Michigan. Buyer, acting for itself and successors and assigns, herby expressly and irrevocably consents to the jurisdiction of the state and federal courts of Michigan for any litigation which may arise of out of be related to this Agreement. Buyer waives any objection based upon forum non-convenience or any objection to venue of any such action. Any action or suit initiated by Buyer with this Agreement must be brought in a federal or state court located in Oakland County, Michigan. BUYER EXPRESSLY WAIVES TRIAL BY JURY.
29. WAIVERS. Any waiver by Buyer or Seller of a breach of a term or condition of this Agreement shall not be construed as a waiver of any other breach of any other term or condition, or a waiver of any similar future breach of the same term or condition.
30. TERM AND TERMINATION. The term of this Agreement shall begin upon acceptance of Seller of any order from Buyer and shall continue until terminated by either party upon 30 days written notice. Any termination of this Agreement shall be in writing. The written notice must specifically reference this Agreement, state that this Agreement is being terminated and be sent via First Class U.S. Mail, certified, return receipt requested, to Seller’s headquarters, attn.: James Johnson. The termination will not change or modify the obligations or rights of the parties with respect to the sale of goods or any services that were agreed upon prior to the effective date of termination.
31. ASSIGNMENT. Buyer may not assign its rights or obligations hereunder without the prior written consent of Seller. Seller reserves the right to assign its rights and obligations under the Agreement or contract to a qualified third party as designated by Seller. In the event of such assignment, Buyer agrees to look solely to the third party assignee for performance under this Agreement or contract.
32. FORCE MAJEURE. Seller is not liable for any failure or delay in performance due to any cause beyond its control. In any event, if Seller’s ability to render services or provide goods or services is impaired by circumstances beyond Seller’s contract, Seller may terminate this Agreement.
33. CONDITIONS INCORPORATED BY REFERENCE. Any clause required to be included in a contract of this type by any applicable law or administrative regulation having the effect of law shall be deemed incorporated herein.
34. SEVERABILITY. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
35. INTEGRATION AND NOT ORAL MODIFICATION. This Agreement contains the entire understanding between the parties with respect to the transactions and subject matter contemplated hereby and supersedes, merges, and replaces all prior and contemporaneous agreement and understandings, oral or written, between the parties. This Agreement may not be orally amended or changed. This Agreement may be amended or changed only by written instrument executed by the party waiving such provision. This Agreement may be terminated only in the matter set forth in this Agreement.