DIGITAL DIRECTORY EXPRESS™ (by ALIVEPROMO, INC.) STANDARD TERMS AND CONDITIONS OF SALE
PAYMENT TERMS FOR EQUIPMENT: At the time of order, Buyer shap make a non-refundable down payment equal to 50% of the entire order amount. At the time of shipment, Buyer shall make a payment of 100% of remaining cost for the hardware and services purchased hereunder. Charges for additions or changes to equipment and or services ordered shall be invoiced as made, with all invoices due upon receipt. To all pricing to the Buyer shall be added all shipping and transportation costs and applicable taxes.
INTEGRATION/PLACEMENT: AlivePromo offers equipment integration services at a standard published allowance rate for typical and reasonable situations. If actual integration expenses exceed the allowance, Buyer will be provided an updated estimate to be approved by Buyer prior to continuation of integration services. In any case of integration services exceeding amounts already paid, Buyer’s obligation is to pay immediately upon invoice for the excess. Integration shall be coordinated by Buyer with AlivePromo upon reasonable advance notice to AlivePromo of the desired placement date and following delivery to Buyer of the necessary equipment and completion by Buyer of the initial promotional content to be displayed. Buyer is responsible for all electrical, data, construction tasks, costs, and remedies associated with where the directory will be placed to ensure its proper operation.
TERM AND PAYMENT TERMS FOR DIGITAL DIRECTORY EXPRESS AND-OR ALIVEPROMO MAINTENANCE SERVICES: Unless otherwise expressly agreed to in writing, the initial term of the service portion of this contract shall be 12 months, commencing on the date of placement of the hardware. The service contract shall continue thereafter for additional 12 month terms (each an “Extended Term”), unless terminated by either AlivePromo or the Buyer by written notice received by the other at least 90 days prior to the end of the initial term or an extended term.
APPLICABLE SALES TAX: All federal, state and local taxes are for Buyer’s account and are due in addition to the prices quoted in this Agreement. Buyer shall establish exemption from any taxes and indemnify AlivePromo if such information is incorrect. AlivePromo is not currently registered to collect sales tax except in the State of Minnesota, and believes it is not required to do so under existing law. Buyer acknowledges that it will pay any “Use Tax” associated with said purchase. Should a state other than Minnesota determine that a sales tax should have been collected from Buyer and remitted by AlivePromo for products sold to or delivered or used by Buyer, Buyer agrees to reimburse Seller for said sales tax within 30 days of invoice by AlivePromo.
RISK OF LOSS: The equipment sold hereunder is provided F.O.B. point of shipment and risk of loss shall pass to Buyer upon tender of delivery to the carrier.
WARRANTY: AlivePromo will pass on to Buyer the warranty of the equipment manufacturer, which shall be subject to that manufacturer’s terms. AlivePromo makes no warranty of any nature, express or implied, whether statutory or otherwise, including any implied warranty of merchantability or fitness for a particular purpose.
CONFIDENTIAL INFORMATION; NO LICENSE: Buyer agrees that it will maintain as confidential, the proprietary information provided to it by AlivePromo and not permit disclosure to others without AlivePromo’s prior written consent. Proprietary information of AlivePromo includes, but is not limited to, the elements of design of equipment supplied by AlivePromo and all software supplied by AlivePromo. The sale of equipment and/or delivery of services by AlivePromo does not constitute a license, implied or otherwise, for the use of any patents or know-how of others or of AlivePromo.
INDEMNIFICATION: AlivePromo makes no representation and has no responsibility for the content or effectiveness of any displays on the equipment sold hereunder to Buyer and Buyer hereby indemnifies and holds harmless AlivePromo and its agents, representatives and employees against any and all suits, actions, legal or administrative proceedings, claims, demands, damages, liabilities, interest, attorney’s fees, costs and expenses arising from or in any way associated with Buyer’s use of the equipment or services furnished hereunder including, but not limited to, the content of any displays on such equipment.
FORCE MAJEURE: AlivePromo shall not be liable for any delays in the delivery of goods or services, due in whole to in part, directly or indirectly, to fire, act of God, strike, shortage of materials, suppliers of components, upgrading of technology, delays of carriers, embargo, government order or directive, or any other circumstance beyond AlivePromo’s reasonable control.
NONWAIVER OF DEFAULT: Each shipment and service made under this contract shall be treated as a specific transaction, but in the event of any default or breach by Buyer, AlivePromo may decline to make further shipments or perform services without in any way affecting its rights under this contract. If, despite any default or breach by Buyer, AlivePromo elects to continue to make shipments or perform services, its actions shall not constitute a waiver of any default or breach by Buyer or in any way affect AlivePromo’s legal remedies for such default or breach.
LIMITATION OF LIABILITY: In no event shall AlivePromo be liable for consequential, incidental, special or indirect damages of any kind, including, but not limited to, lost profits, increased costs of operation, financing costs, costs of rental equipment or delay. Said limitation shall apply regardless of whether a claim is asserted under a theory of negligence, strict liability, breach of contract or indemnity.
ATTORNEY’S FEES: In addition to any other remedies provided by law, Buyer shall be liable for attorney’s fees and litigation expenses, which AlivePromo reasonably incurs to enforce, interpret or collect damages due to Buyer’s default or breach of this Agreement, or otherwise under any of the terms of this Agreement.
APPLICABLE LAW; DISPUTES: This Agreement shall be governed by and construed in accordance with the internal laws (and not the laws of conflicts) of the State of Minnesota. Any disputes arising under this Agreement shall be resolved, if not sooner settled, by a court of competent jurisdiction located in Hennepin County, Minnesota, U.S.A. and Buyer hereby irrevocable submits to the jurisdiction of such court.
