General Terms and Conditions for the Sale of Products or Services

NOTICE: These Terms and Conditions govern the sale of Products and provisions of Services by D’Andrea Visual Communications, LLC and its affiliates as well as by third party vendors and/or service providers of Seller. Any acceptance of Seller’s offer is expressly limited to acceptance of these Terms and Conditions and Seller expressly objects to any additional or different terms proposed by the buyer unless expressly agreed to in writing and signed by Buyer and Seller. No Buyer form shall modify these Terms and Conditions, nor shall any course of performance, course of dealing, or usage of trade operate as a modification or waiver of these Terms and Conditions. Buyer accepts these Terms by signing and returning Seller’s estimate, or by sending a purchase order in response to the estimate, or by providing written instruction to Seller to proceed with the estimate, or by submitting instructions to Seller to ship the Product, or by accepting or paying for the Product or Service.

1. Definitions

“Buyer” means the entity to which Seller is providing Products and/or Services under the Contract.

“Contract” means the written acceptance by Buyer of Seller’s estimate, for the sale of Products and/or Services, together with these Terms and Conditions, Seller’s final estimate, the agreed scope(s) of work, and Seller’s order acknowledgement. In the event of any conflict, the Terms and Conditions shall take precedence over other documents included in the Contract.

“Contract Price” means the agreed price stated in the Contract for the sale of Products and Services, including adjustments (if any) in accordance with the Contract.

“Product or Products” means the graphics and other tangible goods Seller has agreed to supply to Buyer under the Contract.

“Seller” means D’Andrea Visual Communications, LLC, its affiliates, and its third party vendors providing Products or performing Services under the Contract.

“Services” means the Services Seller has agreed to perform for Buyer under the Contract.

“Terms and Conditions” means these “General Terms and Conditions for the Sale of Products or Services”, together with any modifications or additional provisions specifically stated in Seller’s final estimate or specifically agreed upon by Seller in writing.

2. Orders

All orders placed by Buyer are subject to acceptance by Seller.  Any cancellation of an order by Buyer must be submitted in writing to the Seller.  Buyer will be responsible for payment of all work performed by Seller up to the date of cancellation of an order, including, but not limited to, labor hours, delivery charges, restocking fees, used materials, and unreturnable materials.  If cancellation occurs after an order has been shipped by the Seller, then Buyer is responsible for full payment of the order.

3. Contract Price.

Buyer shall purchase the Products and, if applicable, shall pay for the Services provided, from Seller at the Contract Price. All Contract Prices are exclusive of all 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. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets. If Buyer claims any exemption, Buyer must provide a valid, signed certificate, for each respective jurisdiction.

4. Payment Terms.

Payment may be made in United States Dollars by cash, check, money order, credit card, automated clearing house (ACH), or wire transfer (all fees are borne by the Buyer). A surcharge of 4% will be added to the Contract Price for payments made with credit card. This charge will be added at the time of payment processing and will not appear on the final invoice for a Contract.

Buyer is responsible for all payments due to Seller.  Seller’s acceptance of a payment from a third party does not transfer Buyer’s payment obligation or release Buyer from their obligations under these Terms and Conditions.

If Seller has extended credit to Buyer, payment shall be due within thirty (30) days from date of invoice unless extended by Seller in writing.  Interest shall accrue on past due balances at the rate of 1.5% per month (18% annual percentage rate) or, if less, the highest rate permissible under applicable law, from the date of the invoice.  Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys’ fees, and court costs. In addition to all other remedies available under these Terms and Conditions or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any orders to Buyer if Buyer fails to pay any amounts within thirty (30) days from date of invoice.

Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.

If Buyer disputes any invoice or portion thereof, it shall notify Seller in writing within thirty (30) days of receipt of said invoice, detail the reason for the dispute, and pay all undisputed amounts. All charges not timely disputed in writing shall be deemed to be undisputed and shall be due and payable as set forth above.

5. Credit Card Disputes or Chargebacks

Buyer shall not initiate a dispute or chargeback with their credit card company for any invoices paid with credit card without first notifying Buyer in writing of their reason for requesting a chargeback. Any written notice of a disputed charge must be provided to Seller within thirty (30) days of the credit card transaction. Seller will respond to Buyer’s written notice within fifteen (15) days in an attempt to resolve the reason for the dispute and chargeback. If Buyer initiates a dispute or chargeback for any reason, Seller does not waive their rights pursuant to Sections 4 and 6.

6. Dispute Resolution

Buyer and Seller shall initially attempt to resolve all claims, disputes, or controversies arising under, out of, or in connection with these Terms and Conditions by conducting good faith negotiations amongst themselves. If Buyer and Seller are unable to resolve the matter following good faith negotiations, the matter shall thereafter be resolved by binding arbitration or civil action in any court in California or Nevada, at the sole discretion of Seller.  Buyer hereby waives any right it may otherwise have to the resolution of such matter by any means other than binding arbitration pursuant to this Section 6.  If Seller elects to institute arbitration proceedings, it shall provide written notice to that effect to Buyer.  If Buyer desires to institute arbitration proceedings, it shall provide written notice to that effect to Seller.  Within thirty (30) days of receipt of Buyer’s notice, Seller will notify Buyer whether it consents to arbitration or elects civil action.

Any arbitration hereunder shall be conducted in the English language under the commercial arbitration rules of the American Arbitration Association. Any such arbitration shall be conducted in Orange County, California, or in a location mutually agreeable to both the Buyer and Seller, by a panel of three arbitrators: one arbitrator shall be appointed by each of Buyer and Seller; and the third shall be appointed by the American Arbitration Association. The panel of arbitrators shall have the authority to grant specific performance. Judgment upon the award so rendered may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. In no event shall a demand for arbitration be made after the date when institution of a legal or equitable proceeding based on the claim, dispute or controversy in question would be barred under these Terms and Conditions or by the applicable statute of limitations.

The prevailing party in any arbitration or civil action in accordance with this Section 6 shall be entitled to recover from the other party, in addition to any other remedies specified in the award, all costs, reasonable attorneys’ fees and other expenses incurred by such prevailing party.

7. Refunds and Credits

In the event Buyer does not use any portion of a credit (including any rebate credit) within ninety (90) days of its issue date, then Seller shall be entitled to apply such credit against any invoice(s) or other amounts owing from Buyer to Seller. All credits (including rebate credits) shall expire if not used within one hundred eighty (180) days of the credit issue date.

8. Delivery and Shipping Terms.

All deliveries will be made “EXWORKS” place of shipment. Title and risk of loss pass to the Buyer upon delivery of the Product to the carrier. Seller’s delivery dates are estimates only and Seller is not liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of the Seller, nor shall the carrier be deemed an agent of the Seller. A delayed delivery of any part of a Contract does not entitle Buyer to cancel other deliveries.

If any Products to be delivered under a Contract cannot be shipped to, or received by, Buyer when ready due to any cause attributable to Buyer, Seller may ship the Products to a storage facility, including storage at the place of manufacture. If Seller places Products into storage, the following apply: (i) title and risk of loss immediately pass to Buyer, if they have not already passed, and delivery shall be deemed to have occurred; (ii) any amounts otherwise payable to Seller upon delivery or shipment shall be due; (iii) a fee of two percent (2%) of the value of the Products will be charged to Buyer; and (iv) when conditions permit and upon payment of all amounts due, Seller shall make Products available to Buyer for delivery.

Any liability of Seller for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.

9. Returns

Products provided by Seller to Buyer are custom manufactured and therefore are non-returnable and non-refundable. In the event a Product is defective or damaged, Seller may request Buyer to return Product to Seller at Seller’s cost and expense. Buyer will make every effort to accommodate return of Product when requested by Seller. Seller will not accept returns, or pay associated expenses, without written approval from Seller to Buyer.

10. Disclaimer of Warranty.

Seller warrants that all products manufactured by Seller shall, at the time of sale, comply with applicable Seller specifications. All products not manufactured by Seller are sold only with the warranties provided by the manufacturer of products, if any. SELLER MAKES NO OTHER WARRANTY WITH RESPECT TO THE PRODUCTS, AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Seller personnel are not authorized to alter this disclaimer of warranty.

11. Limitation of Liability.

IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEADS, BUSINESS INTERRUPTION COST, LOSS OF DATA, REMOVAL OR REINSTALLATION COSTS, REPAIR COSTS, INJURY TO REPUTATION OR LOSS OF BUYERS, PUNITIVE DAMAGES, IPR INFRINGEMENT, LOSS OF CONTRACTS OR ORDERS, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER OR, AS TO SERVICES, FOR THE AMOUNTS PAID TO SELLER FOR SERVICES PERFORMED HEREUNDER.

This limitation of liability is a material basis for the parties’ bargain and reflects the bargained-for allocation of risks between Seller and Buyer, without which Seller would not have agreed to provide the Products or Services at the Contract Price.

12. Indemnification.

Subject to Section 11 hereof, each of Buyer and Seller (as an “Indemnifying Party”) shall indemnify the other party (as an “Indemnified Party”) from and against claims brought by a third party, on account of personal injury or damage to the third party’s tangible property, to the extent caused by the negligence of the Indemnifying Party in connection with this Contract. In the event the injury or damage is caused by joint or concurrent negligence of Buyer and Seller, the loss or expense shall be borne by each party in proportion to its degree of negligence. For purposes of Seller’s indemnity obligation, no part of the Products is considered third party property.

BUYER WILL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY CLAIMS BASED ON (a) SELLER’S COMPLIANCE WITH BUYER’S DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS, (b) MODIFICATION OF ANY PRODUCTS BY ANYONE OTHER THAN SELLER, or (c) USE IN COMBINATION WITH OTHER PRODUCTS.

13. Adequate Assurance.

Seller reserves the right to cancel any order or require full or partial payment or adequate assurance of performance from Buyer without liability to Seller in the event of: (i) Buyer’s insolvency, (ii) Buyer’s filing of a voluntary petition in bankruptcy, (iii) the appointment of a receiver or trustee for Buyer or (iv) the execution by Buyer of an assignment for the benefit of creditors. Seller reserves its right to suspend its performance until payment or adequate assurance of performance is received.  Seller also reserves its right to cancel Buyer’s credit and require payment in full at any time and for any reason.

14. Intellectual Property Rights.

Seller is unable to guarantee that no patent rights, copyrights, trademarks, (user) rights, trade models or any other rights of third-parties are infringed by goods received from suppliers and/or Buyers via Seller, including but not limited to goods, models and drawings for the manufacture and/or delivery of certain Products.

In the absence of written agreement to the contrary, Seller holds the copyrights and all rights of (industrial) property to the offers it has made and the designs, images, drawings (test) models, software, templates, and other goods that it has issued.

15. Compliance with Laws.

Seller shall take reasonable steps to ensure the Products are in conformity with applicable laws and regulations; however, Buyer acknowledges that Products may be used in various jurisdictions for various applications subject to disparate regulations and therefore that Seller cannot warrant compliance with all applicable laws and regulations. Seller disclaims any representation or warranty that the Products conform to federal, state, or local laws, regulations, ordinances, codes, or standards, except as expressly set forth by Seller in writing. Buyer shall comply with all applicable laws, regulations, and ordinances. Seller may terminate this Contract if any governmental authority imposes antidumping or countervailing duties or any other penalties on Products.

The products, items, technology, or software covered by a Contract may be subject to various laws including U.S. and foreign export controls. Seller is committed to complying with all relevant export laws. If these items are of United States origin and are being exported from the United States, the following statement applies, “These commodities, technology or software were exported from the United States in accordance with the Export Administration Regulations. Diversion contrary to U.S. law is prohibited.” Buyer is responsible for applying for export licenses, if required, based on end user or country of ultimate destination. Seller’s obligations are conditioned upon Buyer’s compliance with all U.S. and other applicable trade control laws and regulations. Buyer shall not trans-ship, re-export, divert or direct Products other than in and to the ultimate country of destination declared by Buyer and specified as the country of ultimate destination on Seller’s invoice. Buyer agrees to indemnify and hold Seller harmless from any and all costs, liabilities, penalties, sanctions, and fines related to non-compliance with applicable export laws and regulations.

Buyer represents and warrants that it is not subject to any trade sanctions imposed by the U.S., EU and/or UN and that it is in compliance and shall comply with all applicable laws and regulations relating to trade restrictions and/or export controls (including trade sanctions imposed by the US, EU and/or UN) with respect to Products sold hereunder, and shall provide evidence of compliance with the foregoing as Seller may reasonably request from time to time.

Buyer represents and warrants that it is in compliance and shall comply with all applicable anti-bribery and anti-corruption laws, including the U.S. Foreign Corrupt Practices Act, and has not, directly or indirectly, offered, paid, promised, or authorized the giving of money or anything of value to any government official for the purpose of influencing any act or decision of such government official. Buyer is not on, nor is Buyer associated with any organization that is on, any list of entities maintained by the United States government that identifies parties to which the sale of goods or services is restricted or prohibited.

16. Amendment and Modification.

These Terms and Conditions may only be amended or modified in writing and signed by an authorized representative of Buyer and Seller.

17. Waiver.

No waiver by Seller of any of the provisions of this Contract is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Contract operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

18. Confidential Information.

All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Contract may be used only in connection with this Contract and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

19. Force Majeure.

Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Contract, for any failure or delay in fulfilling or performing any term of this Contract when, and to the extent, such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

In an event of force majeure condition, the Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to the Buyer.

20. Assignment.

Buyer shall not assign any of its rights or delegate any of its obligations under this Contract without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Contract.

21. Relationship of the Parties.

The relationship between the parties is that of independent contractors. Nothing contained in this Contract 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.

22. Governing Law.

All matters arising out of or relating to this Contract are governed by and construed in accordance with the laws of the State of Nevada, without giving effect to any choice or conflict of law provision or rule (whether of the State of Nevada or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. If the Contract includes the sale of Products and Buyer is outside of Seller’s Country, the United Nations Convention on Contracts for the International Sale of Goods shall apply.

23. Notices.

All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Contract or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Contract, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

24. Severability.

If any term or provision of this Contract is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Contract or invalidate or render unenforceable such term or provision in any other jurisdiction.

25. Survival.

Provisions of these Terms and Conditions which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms and Conditions including, but not limited to, the following provisions:  Compliance with Laws, Confidential Information, Governing Law, Indemnification, Submission to Jurisdiction/Arbitration and Survival.

26. Complete Agreement.

These General Terms and Conditions constitute the entire agreement between Buyer and Seller relating to the subject matter hereof, and supersede all prior and contemporaneous discussions, understandings, and agreements related to the subject matter hereof.

27. Language.

The parties have expressly requested that this Contract and all related documents be drafted in the English language.