GENERAL TERMS AND CONDITIONS
The following are the General Terms and Conditions under which Boothster (Boothster.com) sells Products and Services. These General Terms and Conditions are an addendum applicable to sales agreements/invoices created by Boothster. BOOTHSTER will not accept and hereby objects to any additional or different terms and conditions that may be contained in Customer's purchase order or other writing. By agreeing to this sales agreement by signature, verbal or email approval, Customer officially executes this Sales Agreement/Invoice and accepts these General Terms and Conditions and agrees to be bound hereby.
1. DEFINITIONS. "Products" means the off-shelf or newly constructed displays or exhibits or other products listed and described in this Agreement. "Services" means non-warranty maintenance, exhibit set-up and dismantling, supervision of exhibit set-up and dismantling, refurbishing, design or other services made available to Customer for additional charge under this Agreement.
2. PAYMENT AND TITLE.
2.1 Payment. Payments for Products and Services are due as specified in this Agreement. ANY AMOUNT NOT PAID WITHIN THIRTY (30) DAYS AFTER IT IS DUE SHALL INCUR A SERVICE CHARGE OF 1-1/2 PERCENT PER MONTH OR THE HIGHEST RATE PERMITTED BY LAW, WHICHEVER IS LOWER. If any payment is not made when due, BOOTHSTER may suspend delivery or other performance with respect to any Products and Services without liability. In addition, Customer will pay all costs and expenses of collection, including without limitation attorneys' fees, whether or not litigation is commenced. After 90 days past due, BOOTHSTER may at it’s own discretion, hire a collection agency to pursue receipt of funds.
2.2 Taxes. Prices do not include, and Customer is solely responsible for, all taxes imposed upon or in connection with the sale of Products or provision of Services.
2.3 Title and Security Interest. Both legal and equitable title to each Product will remain with BOOTHSTER until Customer has paid the full price due hereunder and all other amounts due BOOTHSTER under separate agreements between BOOTHSTER and Customer. Customer grants to BOOTHSTER and BOOTHSTER reserves a security interest in each Product, including all component parts added by modification or repair, and all proceeds from the sale thereof, until full payment under all agreements as specified above is received. Customer agrees to sign upon request any documents necessary to perfect BOOTHSTER's security interest. BOOTHSTER shall have all remedies available to a secured party under the Oregon Uniform Commercial Code.
2.4 Ownership of Design. Legal ownership of design concepts will remain with BOOTHSTER unless alternative agreement is made between BOOTHSTER and Customer. Customer is not allowed to reuse or manufacture design concepts without written permission from BOOTHSTER. BOOTHSTER is authorized to use design concepts or photos in marketing materials including but not limited to website and email indefinitely or until other agreements are made between BOOTHSTER and Customer.
3. SHIPPING, DELIVERY, INSPECTION AND INSTALLATION.
3.1 Shipment. Unless otherwise expressly agreed in this Agreement, Customer shall arrange for and pay directly all charges (including insurance) associated with shipment of Products. Products will be shipped F.O.B. BOOTHSTER's warehouse. All risks of loss will pass to Customer upon delivery to the carrier. Customer may not rebill shipments back to Boothster unless agreement is made with Boothster.com project manager.
3.2 Packing and Storage Prior to Shipment. Customer shall pay BOOTHSTER for packing and storage of Products prior to shipment at BOOTHSTER's then-current time and material charges.
3.3 Shipment and Service Dates. Customer acknowledges that specified ship dates are estimates only. BOOTHSTER's only responsibility with respect to a specified ship date will be to use reasonable commercial efforts to meet the ship date. Customer acknowledges that BOOTHSTER will not be liable for failure to deliver Products or provide Services, or any delay in delivery of Products or provision of Services, due to wars, transportation delay, strikes or other disputes with workers, delays on the part of suppliers, acts of God, shortages of goods, government regulations, or any other cause beyond the commercially reasonable control of BOOTHSTER.
3.4 Product Approvals and Inspection. Client may request in person approval and inspections upon giving reasonable prior written notice to BOOTHSTER. Customer is responsible for all costs of inspection, including costs for assembling and disassembling Products. Customer expressly waives any right to reject or revoke acceptance of Products after Products have been shipped from BOOTHSTER's warehouse.
3.5 Assembly. Customer is responsible for all labor required for unpacking and assembling each Product at the assembly site, unless Customer has purchased assembly services hereunder or Customer and BOOTHSTER have entered into a separate written agreement for such Services.
3.6 Return of Rental Products. It is the responsibility of Customer to arrange and pay for the shipment of rental products back to BOOTHSTER in Portland, Oregon. If the Customer fails to return the rental product to BOOTHSTER within a reasonable time period, the Customer is required to pay the full retail purchase price of the product.
3.7 Show Services. Estimates provided prior to trade show for show services are only estimates. Actual show site services fees will be billed according to what services are actually rendered at each show. Show services may include but are not limited to install and dismantle labor; AV; furniture rentals; lighting; cleaning; drayage (material handling); internet or phone; electrical or miscellaneous items such as tools, tape, Velcro, etc.
4. CANCELLATION AND RESCHEDULING CHARGES.
4.1 Cancellation. In the event that a customer must cancel, customer agrees to notify Boothster via phone or in person as soon as possible. If there are cancellations following verbal, written or email approvals, BOOTHSTER will invoice Customer for materials purchased, and services rendered up to the point of cancellation plus 10% OR 30% of total project cost, whichever is higher. Services rendered may include design, project coordination, show service or shipping costs. Materials may include any materials purchased for the fabrication of project or prototypes. Any conduct constituting a breach or repudiation of this Agreement by Customer, including but not limited to failure to make an advance payment or to obtain a timely letter of credit as required, will be deemed a cancellation by Customer.
4.2 Rescheduling. If Customer delays shipment of any Products when ready, BOOTHSTER may place such Products in storage on BOOTHSTER's premises. In such event, BOOTHSTER will notify Customer of the storage of the Product and all risks of loss will pass to Customer at such time. In addition, (i) BOOTHSTER may, at its sole option, submit its invoice for the Products to Customer and (ii) Customer will pay BOOTHSTER for all storage services, including but not limited to storage and preparation for and placement into storage, at BOOTHSTER's then-current rates for such services. ONCE A PRODUCT IS IN STORAGE, BOOTHSTER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE TO THE PRODUCT FROM ANY CAUSE, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE CAUSED BY THE NEGLIGENCE OF BOOTHSTER EMPLOYEES OR OTHERS. CUSTOMER SHALL BE RESPONSIBLE FOR ALL INSURANCE ON THE PRODUCT, WHICH INSURANCE SHALL CONTAIN A WAIVER OF SUBROGATION RIGHTS AGAINST BOOTHSTER.
5. WARRANTIES AND REMEDIES.
5.1 Product Warranty. BOOTHSTER warrants that upon initial delivery and assembly (if applicable), each Product will substantially conform to the descriptions and specifications set forth in this Agreement. This warranty with respect to Products is in lieu of all other warranties, whether express of implied. Client has 90 days to exercise this warranty.
5.2 Service Warranty. BOOTHSTER warrants that Services will be provided in a workmanlike manner. This warranty with respect to Services is in lieu of all other warranties, whether express of implied. Client has 90 days to exercise this warranty.
5.3 Remedy. Customer's sole and exclusive remedy for breach of the warranty for Products will be, at BOOTHSTER's option, replacement or repair of nonconforming Products. In order to exercise this remedy, Customer must give BOOTHSTER written notice of the nonconformity and BOOTHSTER must determine that the nonconformity did not arise due to any cause specified in Section 5.4 below. If the Product can reasonably be repaired at BOOTHSTER's warehouse, Customer must return the Product freight prepaid F.O.B. destination. If Customer requests on-site warranty services under circumstances which would reasonably permit the Product to be repaired at BOOTHSTER's warehouse, Customer shall reimburse BOOTHSTER for any travel expense, lodging and meal expense, and any other extra expense associated with such on-site warranty services. If this remedy of replacement or repair is adjudged to have failed of its essential purpose, BOOTHSTER's total liability will be to refund the purchase price paid by Customer for the nonconforming Product. Client has 90 days to exercise this warranty.
5.4 Limitation of Remedy. The warranty remedy provided by BOOTHSTER does not include the following services, which may be provided, at BOOTHSTER's sole option, at BOOTHSTER's then-current time and material charges: (i) repair of damage caused by accident, misuse, abuse, neglect, improper handling of Products or other conditions beyond BOOTHSTER's commercial control; (ii) repair of damage caused by Customer's improper assembly or disassembly of Products, and (iii) repair of damage caused by work or causes external to the Products.
5.5 DISCLAIMER OF WARRANTY. EXCEPT FOR THE WARRANTIES STATED IN THIS SECTION 5, BOOTHSTER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BOOTHSTER DOES NOT GIVE ANY WARRANTY WITH RESPECT TO ANY SERVICES PROVIDED AS A CUSTOMER ACCOMMODATION FREE OF CHARGE INCLUDING BUT NOT LIMITED TO STANDARD WARRANTY SERVICES. BOOTHSTER IS NOT RESPONSIBLE FOR MAINTAINING OR SERVICING WARRANTIES PROVIDED BY 3RD PARTY PRODUCTS INCLUDING BUT NOT LIMITED TO AUDIO VISUAL EQUIPMENT, COMPUTERS, OR DISPLAY PRODUCTS.
6. LIMITATION OF LIABILITY.
6.1 Special, Indirect, Consequential, Incidental Damages. IN NO EVENT WILL BOOTHSTER BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES INCLUDING BUT NOT LIMITED TO FIRE, NATURALAL DISASTER OR DAMAGE TO BOOTHSTER’S STORAGE FACILITY RESULTING IN DAMAGE TO PRODUCT, LOSS OF PROFITS OR REVENUES, DAMAGE TO OR LOSS OF THE USE OF THE PRODUCTS, DAMAGE TO PROPERTY, CLAIMS OF THIRD PARTIES INCLUDING PERSONAL INJURY OR DEATH SUFFERED AS A RESULT OF USE OF PRODUCTS OR PROVISION OF SERVICES, OR FAILURE OF BOOTHSTER TO INSTRUCT, OR TO ADEQUATELY INSTRUCT, ABOUT THE PROPER USE OF THE PRODUCTS, WHETHER OR NOT BOOTHSTER HAS BEEN ADVISED OF THE POTENTIAL FOR SUCH DAMAGES.
6.2 Limitation. THE TOTAL LIABILITY OF BOOTHSTER TO CUSTOMER FROM ANY CAUSE WHATSOEVER, WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCTS LIABILITY OR ANY OTHER THEORY OF LIABILITY, WILL BE LIMITED TO THE LESSER OF CUSTOMER'S ACTUAL DAMAGES OR THE PURCHASE PRICE FOR THE PRODUCTS AND/OR SERVICES THAT ARE THE SUBJECT OF CUSTOMER'S CLAIM.
6.3 Time for Claims. All claims against BOOTHSTER must be brought within one (1) year after the cause of action arises and Customer expressly waives any statute of limitations which might apply by operation of law or otherwise.
7. INDEMNIFICATION. Customer shall defend, indemnify and hold harmless BOOTHSTER and BOOTHSTER's agents and employees, from and against all third party claims for damage or injury, and all damages and expenses (including reasonable attorney fees and costs) incurred by BOOTHSTER, its agents or employees with respect to such claims, arising out of or resulting from Customer's assembly, disassembly and use of Products, including without limitation patent, trademark and copyright infringement; provided, however, that this Section 7.1 shall not apply to claims for bodily injury or property damage caused by BOOTHSTER's negligence.
8. MISCELLANEOUS.
8.1 Choice of Law; Jurisdiction and Venue. All disputes arising in connection with this Agreement shall be construed and governed under the laws of the state of Oregon without regard to its conflict of laws provisions and excluding the United Nations Convention for the International Sale of Goods. Customer hereby irrevocably consents to the jurisdiction and exclusive venue of an arbitral body or a state or federal court of competent jurisdiction in Multnomah County, Oregon.
8.2 Arbitration. In the event of any dispute arising out of or relating to this Agreement, BOOTHSTER may, at its sole election, require that the dispute be submitted to arbitration under the rules of either the American Arbitration Association or the Arbitration Service of Portland, Inc. Judgment upon the arbitration award may be entered and enforced in any court of competent jurisdiction.
8.3 Attorney Fees. In the event arbitration is instituted, or a suit or action is brought, to enforce or determine the parties' rights or duties arising out of the terms of this Agreement, the prevailing party shall recover from the losing party reasonable attorney fees and costs incurred in such proceeding and in any appeal therefrom, as determined by the arbitrator(s)/judge presiding over such proceeding.
8.4 Assignment. Except with the other party's prior written consent, a party may not assign any rights or delegate any duties under this Agreement.
8.5 Notices. Notices or requests to be given or made by either party under this Agreement shall be in writing and shall be deemed given or made (i) when personally delivered, (ii) two days after mailing by first class mail, postage prepaid, or (iii) one day after being sent by express overnight delivery, to the address of the other party listed on the front of this Agreement. Written notices or requests shall also be deemed given or made (i) by electronic mail sent to the electronic mail address of the other party listed on the front of this Agreement, 24 hours after receipt by the other party's electronic mail provider, and (ii) by facsimile transmission sent to the facsimile number of the other party listed on the front of this Agreement, when transmission is confirmed by the sending facsimile machine.
8.6 Severability. The invalidity or unenforceability, in whole or in part, of any provision in this Agreement will not affect in any way the remainder of the provisions herein.
8.7 Waiver. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
8.8 Entire Agreement. This Agreement, together with any other materials referenced in or expressly made a part of this Agreement, constitutes a final, complete and entire agreement between BOOTHSTER and Customer and supersedes all prior and contemporary agreements, oral or written, with respect to the Products and/or Services specified hereunder. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by all parties.
