The sale of products and services (“Products”) by Exclusive Moment Photography and its divisions, subsidiaries, and affiliates (“Exclusive Moment Photography”) are subject to these terms and conditions (“Agreement”) regardless of other or additional terms or conditions that conflict with or contradict this Agreement in any purchase order, document, or other communication (“Order”). Preprinted terms and conditions on any document of customer (“Customer”) (for example: Orders or confirmations) and/or Exclusive Moment Photography’s failure to object to conflicting or additional terms will not change or add to the terms of this Agreement.
1. ORDERS. Quotes from Exclusive Moment Photography are invitations to tender and are subject to change at any time without notice. All Orders are subject to acceptance by Exclusive Moment Photography. Contracts between Customer and Exclusive Moment Photography are formed upon Exclusive Moment Photography’s written acceptance or execution of Customer’s Order and shall be subject to this Agreement. All Orders including, but not limited to, Electronic Purchase Orders, for Products identified by Exclusive Moment Photography as non-standard or “NCNR”, are non-cancelable, non-returnable. Exclusive Moment Photography may identify Products as non-standard or “NCNR” by various means including, but not limited to, quotes, Scope of Services, Products lists, attachments or exhibits. Customer may not change, cancel or reschedule Orders for standard Products without Exclusive Moment Photography’s consent. Exclusive Moment Photography reserves the right to allocate the sale of Products among its Customers.
2. PRICES. Prices are subject to change at any time. Prices are for Products only and do not include taxes, shipping charges, freight, duties, and other charges or fees, such as fees for special packaging and labeling of the Products, permits, certificates, customs declarations and registration (collectively, “Additional Fees”). Customer is responsible for any Additional Fees.
3. TERMS OF PAYMENT. Payment of the total invoice amount, without offset or deduction, is due on Order delivery or as otherwise approved in writing by Exclusive Moment Photography. On any past due invoice, Exclusive Moment Photography may charge (i) interest from the payment due date to the date of payment at 18% per annum, plus reasonable attorney fees and collection costs; or (ii) the maximum amount that is allowed under the applicable law if Exclusive Moment Photography’s interest rate is deemed invalid. At any time, Exclusive Moment Photography may change the terms of Customer’s credit, require financial data from Customer for verification of Customer’s creditworthiness, require a bank guarantee or other security, or suspend any outstanding Orders of Customer. Exclusive Moment Photography may apply payments to any of Customer’s accounts. If Customer defaults on any payment under this Agreement, Exclusive Moment Photography may reschedule or cancel any outstanding delivery and declare all outstanding invoices due and payable immediately. Unless otherwise provided by applicable law, any credit issued by Exclusive Moment Photography to Customer in respect of any of Customer’s accounts will expire if unused for twelve (12) months following the date of issuance of such credit.
4. DELIVERY AND TITLE. Exclusive Moment Photography’s delivery dates are estimates only and subject to timely receipt of supplies by Exclusive Moment Photography. Exclusive Moment Photography is not liable for delays in delivery. Exclusive Moment Photography reserves the right to make partial deliveries and Customer will accept delivery and pay for the Products delivered. A delayed delivery of any part of an Order does not entitle Customer to cancel other deliveries.
5. EXCLUSIVE MOMENT PHOTOGRAPHY’S LIMITED WARRANTY. Exclusive Moment Photography will pass through to Customer any transferable Product warranties, indemnities, and remedies provided to Exclusive Moment Photography by the manufacturer, including any warranties and indemnities for intellectual property infringement. If required by law, Exclusive Moment Photography warrants that at the time of delivery, the Products shall have the specifications stated by the manufacturer in its published data sheet for the Products for 12 months from delivery of Products. Exclusive Moment Photography warrants that for a period of 90 days after delivery of the Products to Customer, value-added work performed by Exclusive Moment Photography on Products will conform to Customer’s specifications that are in writing and accepted by Exclusive Moment Photography, and Customer shall be deemed the manufacturer of such value-added Products. To the extent permitted by law, Exclusive Moment Photography makes no other warranty, express or implied, such as warranty of merchantability, fitness for purpose or non-infringement. Customer’s sole remedies for breach of Exclusive Moment Photography’s warranty are, at Exclusive Moment Photography’s choice: (i) repair the Products; (ii) replace the Products at no cost to Customer; or (iii) refund Customer the purchase price of the Products.
6. PRODUCT RETURN. Customer may return Products to Exclusive Moment Photography only with a return material authorization (“RMA”) number issued by Exclusive Moment Photography. Customer must notify Exclusive Moment Photography in writing of any damage to the outer packaging or the Products, shortage, or other discrepancy (“Visual Defect”) within 3 days after receipt of the shipment; otherwise, Customer is deemed to have accepted the Products and may not revoke acceptance. RMAs will be issued only for Visual Defects created solely by Exclusive Moment Photography or the original manufacturer, and only if Customer satisfies the notice requirement. RMAs will not be granted for damage, shortage, or other discrepancy created by Customer, the carrier or freight provider, or any other third party. Product return pursuant to a warranty requires written notice from Customer to Exclusive Moment Photography within the warranty period detailing the Product defect. Customer must return the Products to Exclusive Moment Photography freight prepaid in original manufacturer’s shipping cartons or equivalent, along with acceptable proof of purchase, within the warranty period and as specified in the RMA. At Exclusive Moment Photography’s discretion, Exclusive Moment Photography will return all Products not eligible for return to Customer, freight collect, or hold Product for Customer’s account at Customer’s expense.
7. LIMITATION OF LIABILITY. To the extent permitted by law, neither Exclusive Moment Photography nor its employees or agents are liable for and Customer is not entitled to any indirect, special, incidental or consequential damages (for example, loss of profits or revenue, loss of data, loss of use, rework, manufacturing expense, injury to reputation, or loss of Customers). To the extent permitted by applicable law, Customer’s recovery from Exclusive Moment Photography for any direct damages will not exceed the price of the Product at issue. Customer will indemnify, defend and hold Exclusive Moment Photography harmless from any claims based on: (i) Exclusive Moment Photography’s compliance with Customer’s designs, specifications, or instructions, (ii) modification of any Product by anyone other than Exclusive Moment Photography, or (iii) use of Products in combination with other products or in violation of clause 9 below.
8. FORCES BEYOND EXCLUSIVE MOMENT PHOTOGRAPHY’S CONTROL. Exclusive Moment Photography is not liable for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control (for example: acts of nature, acts or omissions of the Customer, operational disruptions, man-made or natural disasters, epidemic medical crises, materials shortages, strikes, criminal acts, delays in delivery or transportation, or inability to obtain labor or materials through its regular sources).
9. USE OF PRODUCTS. Customer shall comply with the manufacturer’s or supplier’s Product specifications. Products are not authorized for use in critical safety or other applications where a failure may reasonably be expected to result in personal injury, loss of life, or serious property damage. If Customer uses or sells the Products for use in any such applications or fails to comply with the manufacturer’s Product specifications, Customer acknowledges that such use, sale, or non-compliance is at Customer’s sole risk.
10. EXPORT/IMPORT. Certain Products and related technology and documentation sold by Exclusive Moment Photography are subject to export control laws, regulations and orders of Canadian Government, the United States, the European Union, and/or other countries (“Export Laws”). The Customer shall comply with such Export Laws and obtain any license, permit or authorization required to transfer, sell, export, re-export or import the Products and related technology and documentation. The Customer will not export or re-export the Products and related technology and documentation to any country or entity to which such export or re-export is prohibited, including any country or entity under sanction or embargoes administered by Canadian Government, United Nations, Department of Treasury or Department of Commerce. The Customer will not use the Products and related technology and documentation in relation to nuclear, biological or chemical weapons or missile systems capable of delivering same, or in the development of any weapons of mass destruction.
11. PRODUCT INFORMATION. Product information (for example, statements or advice (technical or otherwise) advertisement content, and information related to a Product’s specifications, features, export/import control classifications, uses or conformance with legal or other requirements) is provided by Exclusive Moment Photography on an “AS IS” basis and does not form a part of the properties of the Product. Exclusive Moment Photography makes no representation as to the accuracy or completeness of the Product information, and DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND LIABILITIES UNDER ANY THEORY WITH RESPECT TO THE PRODUCT INFORMATION. Exclusive Moment Photography recommends Customer validate any Product Information before using or acting on such information. All Product information is subject to change without notice. Exclusive Moment Photography is not responsible for typographical or other errors or omissions in Product information.
12. ELECTRONIC ORDERS. In the event that any part of the purchase and sale of Products, including Customer’s NCNR acknowledgment, utilizes electronic data interchange, Customer’s internal portal or third party portal, or any other electronic means (“Electronic Purchase Order”), this Agreement will continue to apply to the purchase and sale of Products between Customer and Exclusive Moment Photography. Customer’s acceptance of Exclusive Moment Photography’s acknowledgment request or Exclusive Moment Photography’s specification of details with respect to Electronic Purchase Orders via writing, email or other electronic data interchange shall be binding on Customer.
A. This Agreement shall be governed, construed, and enforced in accordance with the laws of the country where the Exclusive Moment Photography entity that accepted Customer’s Order (“Governing Country”) is located. The courts of the Governing Country shall have jurisdiction and venue over all controversies arising out of, or relating to, this Agreement.
B. Customer may not assign this Agreement without the prior written consent of Exclusive Moment Photography, and Exclusive Moment Photography’s affiliates may perform Exclusive Moment Photography’s obligations under this Agreement. This Agreement is binding on successors and assigns.
C. This Agreement can only be modified in writing signed by authorized representatives of both Exclusive Moment Photography and Customer.
D. Exclusive Moment Photography and Customer are independent contractors and agree that this Agreement does not establish a joint venture, agency relationship, or partnership.
E. Exclusive Moment Photography’s failure to object to any document, communication, or act of Customer will not be deemed a waiver of any of these terms and conditions.
F. The unenforceability of any of these terms or conditions will not affect the remainder of the terms or conditions.
G. Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses, and Customer will comply with such rights.
H. Customer and Exclusive Moment Photography will comply with applicable laws and regulations
I. The parties agree to use electronic signatures and agree that any electronic signatures will be legally valid, effective, and enforceable.