Terms & Conditions

All Purpose Objects

TERMS AND CONDITIONS OF SALE

By agreeing to the Terms of Service via the invoice provided, or by signing the provided Specifications and Scope of Work form (“Scope of Work”), and by engaging Ross Anthony (“Seller”) to, as applicable, design, fabricate and install the product or products (“Product”) specified therein, Buyer and Seller (the “parties”) agree to be bound by the following Terms and Conditions of Sale (“Terms”). All references in these Terms to “Buyer” refer to the individual or business entity named on the Scope of Work.

1. Applicability. Seller agrees to, as applicable, design, fabricate and install the Product on Buyer’s behalf and Buyer agrees to purchase the Product and any related Installation Services from Seller, pursuant to the specifications set forth in the Scope of Work and upon the terms and conditions set forth in these Terms. (Seller’s services in designing, fabricating, and installing the Product as more particularly specified in the Scope of Work is generally referred to herein as the “Services”). Buyer represents that it is purchasing the Product for its own use and not for resale to any other party. These Terms, the Scope of Work (including any related exhibits and schedules), and the invoice(s) presented to Buyer comprise the sole and entire agreement between the parties with respect to the Services and the Product, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Seller rejects any additional or different terms, or provisions contained in any purchase order, acknowledgment or other communication (heretofore or hereafter) received from Buyer, except to the extent specifically agreed to in writing by Seller.

2. Changes to the Scope of Work. The Scope of Work reflects the specifications and scope of work initially requested by Buyer, and Seller’s anticipated time and cost to complete such work. Buyer requested changes to the Scope of Work may be made with the written consent of Seller. Any such changes may, at the sole discretion of Seller, require an adjustment to the Fee.

3. Pick-up and Delivery. The Product will be either made available for pick up at Seller’s San Diego facility or delivered to the location specified in the Scope of Work (the “Delivery Point”) on the date mutually agreed upon by the parties; provided, however, unless specifically agreed to by Seller in writing, time is not of the essence in the order, and any time quoted for delivery or installation is an estimate only and is subject to change based on reasonable notice by Seller. Buyer shall take physical possession of the Product within fourteen (14) days of being notified the Product is available for pickup, or if the Product is being delivered, upon delivery to the Delivery Point on the agreed upon date. Seller is not responsible if the Product is lost or stolen after pick-up or confirmed delivery. If for any reason Buyer fails to pick up the Product from Seller’s facility or accept delivery of the Product upon delivery to the Delivery Point, or if Seller is unable to deliver the Product at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses, or authorizations: (i) notwithstanding Section 4 of these Terms, risk of loss to the Product shall pass to Buyer; (ii) the Product shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Product until Buyer picks it up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

4. Title and Risk of Loss. Title and risk of loss to the Product passes to Buyer: (a) for Product not installed by Seller, upon Buyer’s pickup of the Product at Seller’s facility, or upon delivery of the Product to the Delivery Point; (b) for Product installed by Seller, upon completion of installation, except that Seller shall not be responsible for loss or damage to the Product during installation caused by any matter beyond Seller’s reasonable control, including but not limited to: theft, fire or other casualty to the installation premises, or the intentional or negligent acts of Buyer, its employees, agents and contractors.

5. Inspection. Buyer shall have the right to inspect the finished Product at Seller’s facility prior to making the final payment of the Fee. Inspection shall be made within three (3) days after Seller notifies Buyer the Product is finished, or at a specific time and date to be mutually agreed upon by the parties. After inspection, Buyer must immediately notify Seller if it believes the Product is nonconforming. For purposes of this Section 5, “nonconforming” means the Product does not materially meet the specifications set forth in the Scope of Work. After such notification, if Seller determines, in its reasonable discretion, that the Product is nonconforming, Seller shall, at its sole option, either (i) re-work or replace the nonconforming Product or (ii) refund Buyer all or a portion of the Fee paid for the Product as Seller determines is reasonable under the circumstances. Buyer acknowledges and agrees that the remedies set forth in this Section 5 are Buyer's exclusive remedies when the Product is nonconforming. Buyer’s failure to notify Seller that the Product is nonconforming prior to pickup or delivery of the Product shall be deemed acceptance of the Product by Buyer and agreement that the Product conforms to the specifications set forth in the Scope of Work.

6. Special Terms for Shipped Product. If the Product is to be shipped to Buyer, the following terms apply and replace Sections 3, 4, and 5 of these Terms. Product will be shipped using Seller’s standard methods for packaging and shipping. All shipping and delivery costs and insurance shall be borne by Buyer. Products that are shipped are insured with the carrier until delivery at the destination designated by Buyer. After delivery to the location designated by Buyer, risk of loss passes to Buyer. Seller is not responsible for any loss resulting from Buyer's failure to accept the carrier's delivery, or for shipments that are lost or stolen after confirmed delivery. If the carrier has to return the shipment to Seller, Buyer will be responsible for all shipping charges. As soon as the Product is delivered to Buyer, Buyer shall inspect the Product. Buyer must notify Seller, in writing, within 24 hours of delivery of the Product if Buyer believes the Product is “nonconforming.” For purposes of this Section 6, “nonconforming” means the Product does not materially meet the specifications set forth in the Scope of Work. Failure to give notice within 24 hours after delivery shall constitute irrevocable acceptance of the Product.

7. No Returns. Buyer agrees that the inspection provisions of these Terms are adequate to protect Buyer. Buyer acknowledges and agrees that the Product is custom-made by Seller to Buyer’s specifications and cannot be returned after it has been accepted by Buyer.

8. Installation. This Section only applies if Buyer has engaged Seller to install the Product as specified in the Scope of Work (such services to be referred to herein as “Installation Services”). It is Buyer’s responsibility to ensure compliance with all applicable building codes, ordinances, leases, covenants, conditions, and restrictions related to the Installation Services, to pay any fees or other charges, and to obtain any permits or authorizations necessary for the Installation Services (collectively “Legal Requirements”). Buyer is solely responsible for any fines or similar charges for violation of any applicable Legal Requirements. Buyer represents that there are no legal, contractual or similar restrictions on the installation of the Product in the location Buyer has specified in the Scope of Work. Buyer shall, at its expense, have the installation site prepared prior to Seller’s arrival and in accordance with Seller’s installation site preparation specifications, if any.

9. Fee. For, as applicable, Seller’s design and fabrication of the Product and performance of the Installation Services, Buyer shall pay Seller the price quoted in the Scope of Work (the “Fee”). Price quotations are valid for 10 days from the date of the Scope of Work, after which time Seller reserves the right to modify the Fee. Buyer shall be responsible for all applicable sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer, excluding taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property, or other assets.

10. Payment. Upon Buyer’s signing of the Scope of Work, Buyer shall pay Seller a portion of the Fee as an initial deposit (“Deposit”) in the amount specified in the Scope of Work. Additional payments shall be paid on the dates specified in the Scope of Work. At Buyer’s request, for any such additional payments, Seller will provide Buyer with an invoice that is payable upon receipt. Buyer shall remit payment electronically through the means specified on the invoice. Amounts unpaid ten (10) days after the invoice date shall accrue interest at the lesser of the rate of 1% per month or the highest rate permissible under California law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.

11. No Setof. Buyer shall not, and acknowledges that it will have no right, under these Terms, any other agreement, document, or law, to withhold, offset, recoup, or debit any amounts owed (or to become due and owing) to Seller, whether under these Terms or otherwise, against any other amount owed (or to become due and owing) to it by Seller, whether relating to Seller’s breach or non-performance of its obligations under these Terms or any other agreement between Buyer and Seller.

12. Intellectual Property Rights. Unless otherwise agreed in writing by both Seller and Buyer, any design, drawing, specification or other document (in written or electronic form) prepared or produced by Seller in performing the Services shall remain the exclusive property of Seller.

13. Cancellation.

2(a) Without prejudice to any of its other rights, Seller may suspend or cancel performance of the Services, including withholding delivery and/or installation of the Product by providing seven (7) days written notice to Buyer in the event: (i) Buyer fails to make a payment due under the Scope of Work; or (ii) Seller is informed that Buyer has become insolvent or otherwise unable to pay the Fee and Buyer is unable to provide assurance of payment to Seller. (b) Buyer may cancel its order of the Product and Services upon seven (7) days written notice to Seller and subject the conditions of subsection (c) of this Section 13. (c) If Seller has ordered material for the Product or otherwise commenced performance of the Services prior to initiating cancellation in accordance with Section 13(a) of these Terms or receiving notice of cancellation from Buyer in accordance with Section 13(b) of these Terms, Seller will deduct from the Deposit and, as necessary, from any other part of the Fee paid in advance by Buyer: (i) any expenses Seller has incurred through the date of cancellation for performance of the Services and (ii) a pro rata portion of the total Fee, that in Seller’s sole judgment, reasonably compensates Seller for the amount of time Seller has expended on the Services as of the date of termination. The portion of the Deposit and/or the Fee that remains after these deductions, if any, will be returned to Buyer within a reasonable time of the date of cancellation. No funds will be returned to Buyer if cancellation occurs after Seller has completed fabrication of the Product. (d) Seller shall have no liability to Buyer for any damage of any kind (whether direct or indirect) incurred by Buyer by reason of the cancellation of the Services.

14. No Engineering Services; Reliance on Information Provided by Buyer. BUYER ACKNOWLEDGES AND AGREES THAT SELLER IS NOT AN ENGINEER AND THAT THE SERVICES DO NOT INCLUDE ENGINEERING SERVICES. To the extent Buyer provides Seller with a specific design, drawing, model, or specification to follow in fabricating the Product, Buyer acknowledges and agrees that Seller is entitled to rely on such design, drawing, model, or specification, and has no duty to investigate, determine, or advise Buyer as to the quality, viability, or safety of the Product.

15. LIMITED WARRANTY AND DISCLAIMER. SELLER WARRANTS TO BUYER THAT, AS OF THE DATE OF DELIVERY, THE PRODUCT WILL MATERIALLY CONFORM TO THE SPECIFICATIONS SET FORTH IN THE SCOPE OF WORK. EXCEPT FOR THE WARRANTY SET FORTH IN THE PRECEDING SENTENCE, TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE PRODUCT IS SOLD AND THE SERVICES ARE PROVIDED TO BUYER ON AN AS-IS BASIS. SELLER MAKES NO, AND HEREBY EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE PRODUCT OR THE SERVICES, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES IMPLIED FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE.

16. LIMITATION OF LIABILITY. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO SELLER’S PERFORMANCE OF THE SERVICES, BUYER’S PURCHASE OR USE OF THE PRODUCT, OR ANY BREACH OF THESE TERMS, REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO SELLER’S PERFORMANCE OF THE SERVICES, BUYER’S PURCHASE OR USE OF THE PRODUCT, OR THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL FEE PAID TO SELLER HEREUNDER.

17. Indemnification. Buyer agrees to diligently defend, hold harmless and indemnify, Seller from and against any and all liability, claims, lawsuits, losses, demands, damages, costs and expenses, including, without limitation, attorney’s fees and costs, expert’s fees and costs, and court costs, (the “Losses”) arising from any third party claim (i) due to any use of the Product of any nature, except to the extent such Losses have been incurred as a direct result of Seller’s willful and knowing infringement of the intellectual property rights of any third party, or Seller’s gross negligence or willful misconduct, or (ii) arising out of the improper use, storage, handling, transportation, maintenance, modification or alteration of the Product by or on behalf of Buyer; (iii) arising out of a design or specification for the Product provided to Seller by or on behalf of Buyer; or (iv) as applicable to the Installation Services, arising out of the unsafe condition of the installation premises or the negligence or willful misconduct of Buyer or Buyer’s agents, employees, and contractors during performance of the Installation Services.

18. Right to Fabricate and Sell Competitive Goods. These Terms do not limit Seller’s right to fabricate or sell, or preclude Seller from fabricating or selling, to any person or entity, goods or products that are similar to or competitive with the Product.

19. Excuse for Non-Performance. Seller shall not be held responsible for failure to perform the Services or make delivery or installation of the Product if that failure is due to any cause, contingency, or circumstance not subject to Seller’s control that prevents or hinders the fabrication or delivery of the Product, including but not limited to fire, earthquake, act of God or public enemy; death illness or incapacity of Seller; federal, state, or municipal action, statute, ordinance, or regulation; strike or other labor trouble; fire damage to or destruction in whole or in part of Seller’s materials or facilities; or the lack of or inability to obtain raw materials, labor, fuel, or supplies. Seller shall notify Buyer in the event such circumstances arise, and, if possible, the parties will discuss in good faith revisions to the schedule for completion of the Services. Seller shall not, however, be deemed in violation of these Terms or held liable for any breach thereof.

20. General Provisions.

(a) These Terms and the Statement of Work may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party. (b) The failure of either party to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by both parties in writing. (c) These Terms are entered into for the sole benefit of Buyer and Seller and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever. (d) If any provision of these Terms is for any reason held invalid or illegal in any respect, such invalidity or illegality will not affect the validity of the Terms and Seller will substitute for the affected provision, a valid and enforceable provision which most closely approximates the intent and economic effect. If such provision cannot be amended so as to be valid and enforceable, then such provision is severed from the Terms and the remaining provisions of the Terms remain valid and enforceable. (e) Buyer is not entitled to assign, transfer or novate its rights and obligations pursuant to the Terms to any third party without Seller’s prior written consent. (f) No joint venture, partnership, employment, or agency relationship exists between Buyer and Seller as a result of these Terms.

(g) All matters arising out of or relating to these Terms or to Buyer’s purchase of the Product and Services from Seller shall be governed by and construed in accordance with the internal laws of the State of California, without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action or proceeding arising out of or relating to these Terms, Seller’s performance of the Services, or Buyer’s purchase of Product from Seller, shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the County of San Diego, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.