Terms & Conditions
Effective March 1, 2016
These Terms and Conditions (this “Agreement”) is made by and between you (“Purchaser”), and Grand Stands, Inc., a California corporation (“Grand Stands”).
1.1. Quotes. Grand Stands will honor any “Quotes” delivered in writing by a Grand Stands representative for a period not to exceed sixty (60) days unless otherwise noted.
1.2. Orders. Grand Stands will only process an “Order” once (i) Purchaser has been approved by Grand Stands’ credit department (which requires submission of credit application), (ii) Purchaser has provide a credit card authorization charge form, (iii) Purchaser has provided Grand Stands with a “Purchase Order,” indicating a Purchase Order number/reference number (generated by you) and the Purchaser’s contact information, by fax or email, and (iv) all of the following terms have been agreed by the parties and have been confirmed in writing (an “Acknowledgement”):
1.2.1. Quantity of ordered products (“Products”);
1.2.2. Cost per Product (“Cost”);
1.2.3. Estimated shipment date of Order (“Shipment Date”);
1.2.4. Destination of Products (“Delivery Point”);
1.2.5. Shipment method;
1.2.6. Payment schedule/terms;
1.2.7. An indication of whether any Products are deemed “Custom;” and
1.2.8. Billing address and delivery address.
Nothing in this agreement shall obligate Grand Stands to deliver Products to Purchaser in the absence of a Purchase Order signed by the Purchaser and delivery of the deposit (if applicable).
1.3. Changes and Cancellation.
1.3.1. Custom Products. Once Grand Stands has provided an Acknowledgment to a Purchase Order, Purchaser shall provide written notice of any inaccuracies or changes within forty-eight (48) hours (“Review Period”) for any Custom Products. Purchaser may not cancel the Order for any Custom Products after such Review Period. Any deposit provided by Purchaser for Custom Orders shall be non-refundable. For the purpose of clarification, Purchaser may not return Custom Products.
1.3.2. Standard Product Orders. Subject to 1.3.1, Purchaser may provide changes to the Order, so long as written notices of such changes are provided to Grand Stands within forty-eight (48) hours of the acknowledged Shipment Date. Purchaser may cancel Orders by providing written notice at least forty-eight (48) hours prior to the Shipment Date for small orders (35 items or less). For larger orders (36 or more items), purchaser may cancel Orders by providing written notice at least 7 working days prior to the acknowledged Shipment Date. All orders cancelled without sufficient notice are subject to restocking fees. Upon a timely cancellation, Grand Stands reserves the right to seek reimbursement for any costs or expenses incurred by Grand Stands in preparing the Order.
1.4. Delivery Costs. The Acknowledgment will state if the delivery is included/FOB or if pre-paid by Grand Stands, in which case such cost will be added as a line-item to the invoice.
1.5. Taxes. In the event Purchaser has not provided a resale number or Certificate of Resale to verify its reseller status, any taxes and/or charges imposed by governmental or other authority in connection with the purchase shall be borne and paid by Purchaser.
1.6. Acceptance of Order.
1.6.1. Upon the arrival of Products at the Delivery Point, the Purchaser shall immediately inspect the Products and the “Packing List” delivered therewith.
1.6.2. Purchaser must notify Grand Stands within forty-eight (48) hours of delivery to the Delivery Point (“Inspection Period”) of any non-conformity (“Rejection Notice”). Failure to notify during the Inspection Period shall be deemed and acceptance of the Order and confirmation of the accuracy of the Packing List.
1.6.3. Upon Grand Stands’ receipt of a Rejection Notice, and in the event Grand Stands agrees that a Product is non-conforming (in Grand Stands’ sole and absolute discretion), Grand Stands shall rectify the defect as soon commercially reasonable by providing replacements to the non-confirming Products, which shall be delivered along with a “Replacement Packing List” (collectively, a Replacement Packing List and Packing list shall be referred to as a “Packing List”). Provided Grand Stands delivers replacement components or Products, Grand Stands shall have no further liability arising out of such non-conformity.
2. TITLE, RISK AND INSURANCE
2.1. Title to Products. Full legal, beneficial and equitable title to the Products shall remain vested in Grand Stands (i) where shipping is arranged by Grand Stands, until the Products are delivered to the Delivery Point, (ii) where shipping is arranged by Purchaser, when the Products are delivered to Purchaser’s specified Carrier in which event title in those Products purchased (but only those Products purchased) shall pass to the Purchaser. “Carrier” means a company that transports goods upon Purchaser’s request.
2.2. Risk of Loss. Upon shipment of the Products to the Delivery Point, risk shall pass to the Purchaser and Purchaser shall bear the entire risk of loss, theft, damaged and/or destruction of the Products from any cause whatsoever until any return to Grand Stands pursuant to and in accordance with this Agreement immediately upon: (i) where shipping is arranged by Grand Stands, until the Products are delivered to the Delivery Point, or (ii) where shipping is arranged by Purchaser, when the Products are delivered to Purchaser’s specified Carrier. It is the Purchaser’s sole obligation to reject Products upon delivery whereby damage was caused by a carrier.
3. PAYMENT
3.1. Prices. The prices for all Products available for purchase by the Purchaser shall be the price set forth in A Quote or Acknowledgment and shall be paid in U.S. Dollars.
3.2. Increases in Pricing. Subject to Section 1.1, Purchaser acknowledges that Grand Stands reserves the right to change or increase the prices of Products for subsequent Orders.
3.3. Terms of Purchase.
3.3.1. Payments will be made (i) via credit card in US Dollars (convenience fees may be added if applicable), or (ii) per mutually agreed upon credit terms.
3.3.2. All payments to be made by the Purchaser for the purchase of Products shall be made pursuant to the terms of the Purchase Order.
3.3.3. Purchaser shall pay any tax due.
3.3.4. Any payments made via credit card must be paid in full prior to the Shipment Date and shall be subject to applicable processing fees, which shall be provided upon request.
4. REPRESENTATIONS AND WARRANTIES.
4.1. By Grand Stands. Grand Stands hereby represents and warrants:
4.1.1. Grand Stands has the right to sell, market, and distribute the Products.
4.1.2. Grand Stands has the authority to enter into and carry out its obligations under this Agreement.
4.1.3. Grand Stands shall be responsible for any infringement by Grand Stands of any patents, designs, trademarks, copyrights or other intellectual property rights brought by a third party against Grand Stands or Purchaser in relation to the Products which are the subject of this Agreement.
4.1.4. The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement will not act as a breach of any contract or agreement to which Grand Stands is a party.
4.1.5. The Products shall be free and clear of all liens.
4.1.6. The Products shall be manufactured in conformity with applicable law.
4.2. By Purchaser.
4.2.1. Any and all related packaging, containers, labels, point of sales materials, promotional materials, etc. for or relating to the Products shall be manufactured, packaged, and labeled in conformity with applicable law.
4.2.2. Purchaser represents and warrants that it will not modify, or in any way, alter the Products, or use the Products in combination with any other products to create a new product (“Altered Products”). Altered Products shall no longer be considered Products subject to this Agreement. Purchaser further represents and warrants that it will not distribute, sell or market, or attempt to distribute, sell or market, Altered Products anywhere, at any time, during or after the Term.
5. SALES ACTIVITIES; RESPONSIBILITIES/OBLIGATIONS.
5.1. Purchaser Not an Agent. Except as otherwise provided herein, the Purchaser is not the agent of Grand Stands for any purpose and is not granted any express or implied right to assume or create any obligation in the name of Grand Stands or to bind Grand Stands in any manner.
5.2. General Duties of Purchaser. The general responsibilities and obligations of the Purchaser include the following:
5.2.1. Purchaser will be responsible for fulfilling all orders placed by its end user customer;
5.2.2. Purchaser will handle all customer service in accordance with its own policies and procedures.
5.2.3. Purchaser shall be solely responsible for any Products returned by its end user customer and Grand Stands shall bear no expense, responsibility or liability in connection therewith.
5.2.4. Purchaser shall be solely responsible for replacing or repairing any parts of Products and Grand Stands shall bear no expense, responsibility or liability in connection therewith other than Defective Allowance (defined below).
5.2.5. Purchaser will develop at its own expense all training, promotional and business sales aids, including any translation and printing costs. Grand Stands will make available examples of its training, promotional, and business sales aid materials for the Purchaser’s use. Grand Stands reserves the right to review such materials and procedures developed by the Purchaser regarding compliance with applicable law. Such approvals shall not be unreasonably withheld or delayed. Grand Stands may be willing to take part in joint promotional efforts on certain Order Products on a case by case basis.
6. RETURNS AND WARRANTIES.
6.1. Returns. Purchaser may return Products in their original condition and packaging as follows:
6.1.1. Purchaser must contact Grand Stands and obtain a return authorization number, which shall be included on the return package.
6.1.2. Delivery freight charges will not be refunded.
6.1.3. A 20% restocking fee (based on the Cost of the returned Products) shall be applied to any Orders returned arranged within 10 days of Shipment Date so long as the items are returns in their original condition and packaging.
6.1.4. A 30% restocking fee (based on the Cost of the returned Products) shall be applied to any Orders returned more than 11 days and up to 29 days after the Shipment Date.
6.1.5. No returns may be made 30 days after the Shipment Date.
6.1.6. Purchaser is responsible for all return freight charges.
6.2. Warranties. Warranties are set forth at www.grandstands.com/warranty. Additional warranties may be included on your Acknowledgement.
7. INFRINGEMENT.
If the Purchaser receives a claim that any Products or part thereof manufactured or distributed by Grand Stands infringes any patent, trademark, service mark, trade secret or other intellectual property right, the Purchaser shall notify Grand Stands promptly in writing and give Grand Stands information, assistance, and exclusive authority to evaluate, defend, and settle such claim. Grand Stands shall then at its own expense and option (1) settle such claims, (2) procure for the Purchaser the right to use and sell such Products in, (3) replace or modify the Products to avoid infringement, and/or (4) remove the Products and refund the Purchaser’s purchase price. In all cases, Grand Stands shall, at its sole cost and expense, defend Purchaser against such claim in accordance with Section 9 below. Provided such timely notice has been given by the Purchaser, should any court of competent jurisdiction hold such Product to constitute infringement, Grand Stands shall indemnify Purchaser of all costs and damages finally awarded on account of such infringement and, if the use of such Products is enjoined, Grand Stands shall, at its option and sole expense, take one or more of the actions under (1), (2), (3) or (4) above.
8. LIMITATION OF LIABILITY.
8.1. Except as set forth in the preceding and following Sections, the total liability of Grand Stands to the Purchaser on any claim, whether in contract, tort, or otherwise, arising out of, connected with, or resulting from the manufacture, sale, delivery, resale, replacement or use of any Products shall not exceed the price allocable to the specific Products or part thereof which gives rise to the claim.
8.2. In no event shall Grand Stands be liable to the Purchaser for any special or consequential damages including, but not limited to, damages for loss of revenue, cost of capital, claims of customers for supply interruptions or failure of supply, and costs and expenses incurred in connection with transportation or substitute facilities or supply sources. The foregoing notwithstanding, each party may be liable for damages caused to the other party by means of fraud, transmission of false information, or violations of law. Such damages will be limited to cost of goods, freight and actual damages.
9. INDEMNIFICATION
9.1. By the Purchaser. Subject to the terms of this Agreement, the Purchaser agrees to defend, indemnify and hold harmless Grand Stands and its Affiliates from and against any and all claims for losses, liability, or damage, pecuniary or physical, and reasonable attorneys’ fees and expenses, arising out of claims made by third parties to the extent arising out of or in connection with: (a) any negligent acts or omissions or willful misconduct of the Purchaser in the distribution of the Products pursuant to this Agreement, (b) any breach of this Agreement or any of its provisions or warranties by the Purchaser or (c) the Purchaser’s violation or failure to substantially comply with all applicable law which pertain to the importation, distribution and sale of the Products.
9.2. By Grand Stands. Subject to the terms of the Agreement, Grand Stands agrees to defend, indemnify and hold harmless the Purchaser from and against, any and all claims for losses, liability, or damage, pecuniary or physical, and reasonable attorneys’ fees and expenses, arising out of claims made by third parties to the extent arising out of or in connection with (a) any negligent acts or omissions or willful misconduct of Grand Stands in the manufacture of the Products, (b) any material breach of this Agreement or any of its provisions or warranties by Grand Stands, (c) any manufacture, sale, or distribution by Grand Stands of any Product alleged or actually defective by design or manufacture, (d) any breach of any duty of Grand Stands to give any adequate pre-sale, post-sale, or continuing warning of any alleged or actual defect or non-obvious risks or dangers of any Product to consumers, or (e) any alleged or actual infringement by Grand Stands of any patent, copyright, trademark, service mark, trade secret, or other intellectual property right of another.
9.3. Indemnification Procedure. In case any claim, demand, or action shall be brought by any third party including, but not limited to, any governmental authority, against a party entitled to indemnity, such party shall promptly notify the other party from whom indemnity is or may validly be sought, in writing, and the indemnifying party or parties shall assume the defense thereof, including the employment of counsel. In addition, in case a party hereto shall become aware of any facts which might result in any such claim, demand, or action, such party shall promptly notify the other party or parties who would be obligated to provide indemnity hereunder with respect to such claim, demand, or action, and such other party or parties shall have the right to take such action as it or they may deem appropriate to resolve such matter. The indemnified party or parties shall have the right to employ separate counsel in such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party or parties, unless the employment of such counsel has been specifically authorized by the indemnifying party or parties. Any settlement of any action subject to indemnity hereunder shall require the consent of the indemnified and the indemnifying party, which consent shall not be unreasonably withheld and which shall be given within five (5) days following the giving of notice of such proposed settlement. The indemnifying party or parties shall not be liable for any settlement of any action affected without its or their consent, but if settled with the consent of the indemnifying party or parties, or if there be a final judgment for the plaintiff in any such action, the indemnifying party or parties shall indemnify and hold harmless the indemnified party from and against any loss or liability by reason of such settlement or judgment. If requested by the indemnifying party, the indemnified party shall cooperate with the indemnifying party and its counsel and use its best efforts in contesting any such claim or, if appropriate, in making any counter-claim or cross-complaint against the party asserting the claim, provided that the indemnifying party will reimburse the indemnified party for reasonable expenses incurred in so co-operating upon presentation of receipts or other evidence of such expenses. The indemnifying party and its representatives shall have full and complete access during reasonable hours to all books, records, and files of the indemnified party expressly related to the defense of any claim for indemnification undertaken by the indemnifying party pursuant to this Section, or for any other purpose in connection therewith, provided that the indemnifying party shall safeguard and maintain the confidentiality of all such books, records, and files.
10. BREACH.
10.1. Grand Stands Right to Repossess. In the event Purchaser fails to remit payment purchase to the payment schedule set forth in the Acknowledgement Grand Stands reserves the right, in its sole determination to (i) charge interest on any amount remaining unpaid after the due date for payment, from the due date to the date of payment, at the rate of 10% per annum or (ii) repossess any Products that have not been paid for in full, wherever located. Purchaser shall bear all expenses incurred by Grand Stands in connection with enforcing its rights pursuant to this Section.
10.2. Open Orders. Grand Stands will be relieved from any obligation to make any further shipment of Products and may cancel all unfulfilled Orders in the event Purchaser has failed to comply with the payment schedule set forth in the Acknowledgement. Neither sale nor shipment of any of the Products to the Purchaser after Purchaser’s breach of its payment obligations, nor any other act of Grand Stands after such breach, shall constitute a waiver of Grand Stands’ rights under this Agreement or applicable law.
11. MISCELLANEOUS
11.1. Entire Agreement. This Agreement, together with all Appendices, Exhibits, and attachments hereto, constitutes the entire agreement between the parties with regard to the subject matter herein, and there are no agreements or commitments except as set forth herein. This Agreement supersedes all prior agreements, whether written or oral, that may have existed between the parties prior to the effective date of this Agreement relating to the subject matter herein.
11.2. Amendments. This Agreement may be amended, modified in whole or in part, or supplemented by an agreement in writing that makes reference to this Agreement and is executed by authorized officers of the parties.
11.3. No Assignment. No party hereto shall assign its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed, except Grand Stands may assign its rights and obligations under this Agreement without notice to or consent of Purchaser as part of a sale or transfer of its membership interests (whether or not such sale or transfer results in a change in control), or pledge such rights as part of financing. The parties can assign this Agreement without the necessity of obtaining prior written consent of the other party where such assignment is to a subsidiary or other entity controlled by their respective companies, provided that as a condition to any such assignment, the assignee shall assume and become liable for any and all of the assignor’s obligations under this Agreement. Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
11.4. Not a Partnership. This Agreement shall not be construed as creating a co-venture or a co-partnership between the parties. Further, this Agreement shall not give rise to any fiduciary duties as between the parties.
11.5. Force Majeure. The Parties performance of its obligations under this Agreement shall be excused for the duration of any delay arising directly or indirectly from (a) acts of God, unforeseeable circumstances, acts (including delay or failure to act) of any governmental authority, war (declared or undeclared), riot, revolution, fires, strikes, labor disputes, sabotage, or epidemics, (b) inability, due to causes beyond Grand Stands’ reasonable control, to timely obtain instructions or information from the Purchaser, necessary and proper labor, materials, components, facilities, and transportation, or (c) any other cause beyond Grand Stands’ reasonable control.
11.6. Notices. Any notices required or permitted to be given under this Agreement shall be in writing and shall be given by addressing the same to such other party at the address set forth below. Such notices shall be given to all parties by (1) overnight or highest priority expedited delivery by an internationally recognized air freight courier service (e.g., UPS, Federal Express, DHL) (herein referred to as “Courier Delivery”), (2) delivery of the same personally to such other party, or (3) transmitting by facsimile or email and mailing the original. Any such notice shall be deemed to have been given three (3) days after timely delivery to an internationally recognized air freight courier service; if by personal delivery, upon such delivery; or if by facsimile or email, the day of transmission if made within customary business hours (with a confirmation of delivery generated by the sending machine), or if not transmitted within customary business hours, the following business day.
Notices to Grand Stands shall be addressed and delivered to:
1946 S. Myrtle Ave., Ste. B
Monrovia, CA 91016
With a copy to (which shall not constitute notice):
Emily S. Levin,
SBL Counsel, PLC
1990 S. Bundy Dr. Ste. 390
Los Angeles, CA 90025
e-mail: Emily@sblcounsel.com
Notices to Purchaser shall be addressed and delivered to the address provided by Purchaser to Grand Stands in the Purchase Order.
11.7. Severability of Provisions. A declaration by an arbitration panel of the invalidity of any one or more of the provisions hereof shall not invalidate the remaining provisions of this Agreement, nor shall such declaration have any effect on the validity or interpretation of this Agreement. The parties undertake, however, to negotiate in good faith to find a substitute provision as close as possible to the invalid provision, taking into consideration each party’s intentions with respect to this Agreement.
11.8. Waiver of Compliance. Any failure by any party hereto to enforce at any time any term or condition under this Agreement shall not be construed as a waiver of that party’s right to enforce each and every term of this Agreement.
11.9. Dispute Resolution. Any controversy or claim arising out of or in relation to this Agreement, or the breach or alleged breach thereof, which cannot be settled amicably, shall be exclusively settled by arbitration in Los Angeles, California, which all parties agree is and shall be a convenient forum. Such arbitration shall be conducted in accordance with the Arbitration Rules of ADR Services, Inc. and the provisions of this Section. The arbitrators may grant any legal and/or equitable relief to which a party may be entitled under the law or legal theory under which the party seeks relief, subject to the limitations of liability set forth in this Agreement. The arbitration award shall be given within three (3) months from appointment of the arbitration panel. The award given by the three arbitrators or the majority thereof, shall be final and binding on the parties and shall be subject to no appeal. The award can be enforced in any court having jurisdiction. Unless otherwise required by law or court orders, the substance of any arbitration proceedings shall be kept confidential by all parties and by the arbitrators; however, the fact that such a proceeding exists, or that an award has been rendered, need not be kept confidential. The costs of the proceeding, including the fees and costs of attorneys, accountants, and witnesses, and the compensation of the arbitrators, shall be assessed by the arbitrators against the parties according to the arbitrators’ determination of fault.
11.10. Governing Law. The rights and obligations of the parties under this Agreement shall be governed by the law of the State of California, USA, including its provisions of the Uniform Commercial Code.
11.11. Captions; Counterparts. The captions in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile or electronic counterparts (pdf) shall be deemed original counterparts for all purposes hereunder and shall constitute enforceable original documents.
11.12. Further Instruments. The parties hereto agree to execute and deliver such instruments and take such other action as shall be reasonably necessary, or as shall be reasonably requested by any other party, in order to carry out the transactions and agreements contemplated by this Agreement.
11.13. Binding Contract. THIS IS A BINDING LEGAL CONTRACT. THE PURCHASER AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS, AND BE LIABLE TO GRAND STANDS FOR ANY NONCOMPLIANCE WITH THESE TERMS AND CONDITIONA. IF PURCHASER DOES NOT AGREE TO THESE TERMS AND CONDITIONS, PURCHASER SHOULD NOT PURCHASE THE PRODUCTS.