Terms & Conditions

TERMS AND CONDITIONS OF SALE

 

The terms and conditions of sale set for the below, unless modified in writing by CRATIV Solutions, Inc.  or its affiliates or parents (“Seller”), shall govern the transaction specified on the face hereof between Seller and the party identified on the face hereof as “Customer”, notwithstanding any conflicting term or condition of Customer’s purchase order, acknowledgement or any other document or communication to the contrary.

 

1. Terms of Sale. Customer’s order specified on the face hereof with respect to products to be purchased hereunder or services to be provided (the “articles”) shall be governed by these terms and conditions (the “terms and conditions”). Nothing contained in any purchase order or other correspondence shall in any way modify these terms and conditions or add any additional terms or conditions, all of which are hereby expressly objected to and rejected by Seller.  Customer shall be deemed to have accepted and agreed to these terms and conditions upon the earlier to occur of Customer’s receipt of articles or the commencement of performance by Seller according to a time frame requested by Customer (or reasonably to be inferred from Customer’s purchase order).  Except as set forth herein, all sales are final.
2. Order Verification. Seller may deliver an Order Verification to Customer as a means of reducing the possibility of misunderstanding or mistake. At Seller’s option, Seller need not fulfill or commence work on any order without receiving Customer’s oral or written confirmation that the Order Verification is accurate. Customer’s failure to object to the Order Verification within one (1) business day of receipt is deemed to be Customer’s acknowledgment that the information contained on the Order Verification is accurate.  Customer’s signature is not required on the Order Verification to create a binding contract but Seller reserves the right, at its option, to require Customer’s signature.
3. Payment. Terms of payment, unless Customer’s credit is suspended or revoked by Seller (in Seller’s sole discretion), or difference payment terms are reflected on Seller’s invoice shall be 50% at the time an order is placed and balance due upon delivery.  Seller may require a completed credit application at its option. Seller shall not be required to make any shipment unless payment is made consistent with any terms Seller has required for this order or any other orders from Customer. Unless otherwise agreed to by Seller, all payments hereunder shall be in U.S. dollars. Any amounts owing hereunder and not paid on a timely basis shall bear interest at a rate of 1 ½% per month, which is an annual percentage rate of 18% per annum, applied to the adjusted previous balance from and after the due date thereof. Returned checks may be submitted for collection and are subject to a $25 returned check fee. Failure to pay any amount owing in full on the terms specified herein shall void all discounts given. Customer shall pay all of Seller’s costs and expenses (including attorneys’ fees, court costs and other collections costs) incurred to collect any amounts owing Seller.  Seller reserves the right to apply interest charges retroactively, whether or not they are shown on individual statements or invoices.
4. Shipping. Unless otherwise agreed upon in writing, all articles will be suitably packed for shipment to Customer or its carrier agent FOB Seller’s shipping dock in Denver, Colorado. If special packaging is requested or necessary, Seller may invoice Customer for the cost of such special packaging. Except as set forth herein, all freight, insurance and other shipping expenses beyond the point of delivery, as well as any special packing expense, shall be paid by Customer. Seller may pay the same and invoice Customer for such charges, all of which shall be due owing on the terms described in paragraph 3 above. 
5. Risk of Loss and Delivery; Title.  Liability for loss or damage passes to Customer when Seller puts the articles into possession of the carrier for shipment to Customer. Shipping and delivery dates are approximate only. Seller shall not be liable for any loss or expense (consequential, incidental or otherwise) incurred by Customer (or any of its customers) if Seller fails to meet such dates for any reason. Customer shall be billed for the freight costs if a package is refused. 
6. Taxes. Customer’s purchase price does not include any federal, state, provincial or local taxes or fees that may be applicable to articles, all of which shall be the sole responsibility of Customer. If Seller elects to pay the same on Customer’s behalf, or is otherwise required to pay the same or withhold the same. Seller may either require prepayment of the same, or add such taxes or fees as a line item on its invoice, and Customer shall reimburse Seller for the same on the terms described in paragraph 3 above.
7. Inspection of Articles. Customer shall inspect all articles promptly upon receipt. Any articles that fail in a material way to meet applicable specifications must be rejected in writing within 30 calendar days of receipt of articles by Customer or they shall be deemed accepted. Failure to notify Seller of defects within 30 days after delivery constitutes final acceptance by the Customer. Customer shall be responsible for all shipping charges for any articles, which have been improperly rejected or returned without authorization. In no event shall Seller be liable for replacement of articles (or for shipping charges) which have been damaged or abused by Customer or its agents.
8. Returns. No articles may be returned for credit, even if properly rejected, without prior authorization of Seller. At Seller’s option, a 20% to 40% restocking fee and/or handling charge may be assessed on returned shipments (other than for properly rejected articles), including refused shipments. Customer shall pay for all freight costs associated with returned articles (other than for properly rejected articles or articles that fails to meet the warranty set forth herein). 
9. Warranty and Disclaimer. Seller warrants that the articles, when shipped, meet any of Sellers written specification certifications, which are specifically made for the articles in question. If the articles include services, then Seller warrants that the services will be provided according to the written specifications identified on the face hereof and in any other written correspondence from Seller to Customer. To the extent that any specifications or certifications are identified as being based upon information obtained from Seller’s suppliers, Seller shall have no liability in the event such specifications or certifications are ultimately determined to be incorrect, other than to assign to Customer, without recourse, any claims which Seller may have against such suppliers. SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE ARTICLES, THEIR FITNESS FOR ANY PURPOSE, THEIR QUALITY, OR THEIR MERCHANTABILITY. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL OR INCIDENTAL DAMAGES OR FOR THE COST OF PROCUREMENT FROM THIRD PARTIES OF ANY SUBSTITUTE GOODS, WHETHER AS A RESULT OF ALLEGED OR ACTUAL BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH.  In any event, Seller’s maximum liability to Customer for any claim shall be limited to purchase price paid or replacement of the articles, at Seller’s sole discretion. To the extent that Customer provides specifications for articles, Customer warrants that such specifications do not infringe on the intellectual property rights of any third party and agrees to indemnify and hold harmless Seller and its affiliates, officers, directors and employees, from and against any and all claims, liabilities or losses, including reasonable attorneys’ fees and court costs (together, the “Claims”) by any third party with respect to any alleged infringement of intellectual property rights or breach of this warranty. 
10. Reservation of Title. Although risk of loss or damage to articles shall pass to Customer upon delivery, transfer of legal and equitable title to articles shipped to Customer shall be subject to full payment of the purchase price therefore, and Seller hereby reserves a security interest in the articles until the purchase price has been paid, foreclosable in accordance with applicable law, Customer grants to Seller a power of attorney for the limited purpose of executing and filing an appropriate UCC financing statement to perfect Seller’s security interest in the collateral referenced in this paragraph.
11. Contingencies. Seller shall not be liable for any delay in performance or for nonperformance in whole or in part caused by the occurrence of any contingency beyond the control either of Seller or Seller’s suppliers.
12. Force Majeure.  Seller shall not be liable for any delay in or failure of performance if the failure to perform arises out of causes beyond the control and without the fault or negligence of Seller including acts of God or of the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, pandemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather, but in every case the failure to perform must be beyond the control and without the fault or negligence of Seller. 
13. UN Convention. The United Nations Convention respecting Contracts for the International Sale of Goods shall not apply to transactions under these Terms and Conditions of Sale.
14. Import and Customs.  Customer will comply with all U.S. laws and international laws, including any and all provisions of the United States-Mexico-Canada Agreement (“USMCA”) and regulations in relation to the contract. export control and trade embargo laws, rules and regulations (including but not limited to the U.S. Export Administration Regulations), and shall not sell, export, import, re-export, distribute, transfer or otherwise deal with or dispose of the articles, whether directly or indirectly, without first obtaining all necessary written consents, permits and authorizations and completing such formalities as may be required by any applicable such laws, rules and regulations. Failure by Customer to comply with such laws, rules and regulations shall constitute a material default under these terms and conditions. Buyer agrees to impose this same compliance requirement in its contracts with third parties pertaining to the articles. Customer is responsible for compliance with all applicable customs regulations, import requirements and duties associated with importing the articles. 
15. Requirements of Law; Indemnification. Customer shall not make any representations, warranties or guarantees with respect to the specifications, features, or capabilities of the articles that are inconsistent with the documentation accompanying the articles and these terms and conditions, including, without limitation, the disclaimer of warranties contained herein, or that are contrary to applicable law, or that are false or misleading. Customer shall be solely responsible for, and shall comply with, all laws and regulations of any state or province or country into which the articles are sold by Customer, or into which Customer knows or should know the articles will be shipped or sold by Customer or its customers, absent a written agreement with Seller to the contrary, including those laws which address, without limitation, (i) labeling of products and disclosure of content, or required or permissible product content, (ii) marketing, sales, distribution or pricing of products, and (iii) the United States Foreign Corrupt Practices Act (which prohibits certain payments to government officials or their agents or instruments).   Customer shall defend, indemnify and hold Seller harmless from and against any and all claims, demands, liabilities of whatever nature, and all damages, liabilities, costs and expenses, including reasonable attorneys’ fees and costs, of any kind incurred in connection with any claim or action arising out of Customer’s activities with respect to the articles.
16. Governing Law. The validity, construction and performance of this contract and the transactions to which it relates shall be governed by the laws of the State of Colorado without regard to conflict of law principles. All actions, claims of legal proceedings in any way pertaining to this contract or such transactions shall be commenced and maintained in the courts of Colorado or in a federal court of the United States, in either case such court being physically situated in Denver, Colorado.
17. Definitions. The terms “Customer” and “Seller” are as defined on the front hereof, except that the benefits and rights which accrue to Seller hereunder, but not the obligations or liabilities, shall, at the option of Seller, be deemed to run to and be for the benefit of any of Seller’s affiliates, subsidiaries and/or parent entities. 
18. Entire Agreement. These terms and conditions set forth the entire agreement and understanding of the parties, and their respective affiliates, relating to the subject matter herein and merge all prior discussions between them. No modification of or amendment to these terms and conditions, nor any waiver of any rights hereunder, shall be effective unless in writing signed by the party to be charged.