TERMS AND CONDITIONS OF SALE
The following terms and conditions of sale govern all quotations, offers, telephone orders, pur- chase orders, order acknowledgments, sales contracts, and deliveries for the sale, and/or delivery of all products, properties, merchandises and goods (the “Properties”) supplied by 2 American Art Associated LLC, DBA Michali Gallery (“Seller”), to the original purchaser only thereof (“Buyer”). Unless modifications or additions are expressly accepted in writing by an officer of Seller, these provisions are controlling and no other inconsistent or additional provisions shall be of any effect whatsoever. Seller’s acceptance of Buyer’s offer to purchase is expressly conditioned on Buyer’s assent to all of the terms and conditions contained herein and such terms and conditions are the only terms and conditions upon which Seller is willing to accept orders and/or sell Property. Additional or different terms issued by Buyer in any other documents are objected to and rejected and shall be deemed a material alteration hereof.
1. PURCHASE PRICE AND PAYMENT TERMS
Seller accepts payment by wire transfer, cash or check. Payment by credit card is at Seller’s dis- cretion only and is subject to a surcharge. Buyer shall, without offset or deduction, pay the purchase price for the Property indicated in Seller’s price schedule as well as all applicable federal, state, and local sales, use, excise, or other similar taxes arising out of the sale of the Property, other than taxes on Seller’s income, and any customs duties, tariffs, bank costs or commissions (collectively, the “Taxes”) on the day of delivery.
Terms of payment are within the sole discretion of Seller. Seller at it own discretion may agree separately in writing to payment of the price by installments. Unless otherwise agreed to in writing, any missed installment shall trigger acceleration of all future payments. Time is of the essence as to the payment obligations of Buyer.
2. DELIVERY AND ACCEPTANCE
Each Property will be wrapped and packaged by Seller free of charge according to the standards generally accepted in the art and antique retail industry. Buyer understands and agrees that such packaging does not offer any protection to the Property, in particular in case of transportation, and that Seller shall never be liable for damages incurred by a Property because of the insufficient protection of such packaging for transportation or other purposes. Special crate packaging may be available at Buyer’s expense under conditions to be determined by Seller. Seller shall not undertake, and Buyer shall be solely responsible for, arranging heavy packaging, long distance transportation and all associated expenses.
3. INSPECTION OF PROPERTY/DISCLAIMER AND LIMITATION OF REMEDIES
EACH PRODUT IS EXHIBITED FOR INSPECTION BY BUYER PRIOR TO THE SALE. IT IS BUYER’S SOLE RESPONSIBILITY TO SATISFY HIMSELF/HERSELF FULLY IF THE CHARACTERISTICS AND CONDITION OF THE PROPERTY, INCLUDING MATTERS RELATING TO ANY RESTAURATION, REPAIR OR ALTERATION.
NO REPRESENTATION, EXPRESS OR IMPLIED, IS MADE BY SELLER OR CONSIGNOR, AS THE CASE MAY BE, AS TO WHETHER OR NOT BUYER WILL ACQUIRE ANY REPROPERTYION RIGHTS, COPYWRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS IN, OR WITH RESPECT TO ANY PROPERTY.
ALL PROPERTIES ARE SOLD AS IS. THE LIMITED WARRANTY CONTAINED HEREIN ABOVE IS THE SOLE AND EXCLUSIVE WARRANTY OF SELLER AND IS EXPRESSLY IN LIEU OF ANY AND ALL OTHER OBLIGATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES ARISING FROM COURSE OF DEALING, USAGE INT THE TRADE, AS WELLS AS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
BUYER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY AGAINST SELLER IS LIMITED TO AN AMOUNT NOT IN ANY EVENT TO EXCEED THE PRICE ACTUALLY PAID FOR THE CORRESPONDING PROPERTY. DELIVERED PROPERTY MAY NOT BE RETURNED BY BUYER OR ITS AGENT TO SELLER WITHOUT SELLER’S PRIOR WRITTEN CONSENT AND SELLER’S PRIOR APPROVAL OF SHIPMENT METHOD.
Except where expressly acknowledged in writing by a duly authorized executive officer of Seller, no person or entity is authorized to assume for Seller any undertaking, obligation, liability, or warranty.
4. LIMITATION OF LIABILITY
Buyer is hereby expressly put on notice that it is Buyer’s responsibility to insure the Property as early as possible after completing its purchase. Seller shall in no event be liable to Buyer, nor shall Buyer recover from Seller, for injury to persons or damage to property, or any other loss or damage whatsoever, arising out of or in connection with the sale, transportation, delivery, assembly, disassembly, repair, use, or installation of a Property (whether arising from any claim based upon contract, warranty, tort, Property liability, strict liability, or any other legal or equitable theory), for any amount in excess of the amount actually paid by Buyer to Seller for the Property; provided, however, that in no event shall Seller be liable to Buyer in any manner for any special, indirect, incidental, or consequential damages, including, but not limited to, damages or losses arising out of overhead, or lost profits (whether arising from contract, warranty, tort, Property liability, strict liability, or any other legal or equitable theory), even if Seller has been advised of the possibility therefor. Any action for an alleged breach of any contract of sale or of any warranties relating to any Property sold by Seller to Buyer must be commenced by Buyer within one (1) year of the date on which such cause of action accrued.
Buyer shall use and shall require its employees, if any, and others coming in contact with a Prop- erty to use safe handling procedures in and around the Property. Buyer shall comply at all times with all applicable laws and regulations, whether local, state, federal or otherwise, and seller reserves the right to stop delivery without liability should the Buyer fail to fulfill that obligation.
Buyer hereby expressly to comply with applicable laws at all times. Buyer hereby expressly agrees, represents and warrants that Buyer shall not register under a false name, use another person’s name, give false information or supply false credit information. Appropriate law enforcement agencies may be notified by Seller of conduct that is believed to be a violation of state or federal law. Seller will cooperate with law enforcement investigations to ensure that those violating state of federal laws are prosecuted to the fullest extent of the law.
Seller shall not be responsible for any losses or damages sustained by the Buyer or any other per- son as a result of improper installation or handling of a Property. Buyer shall defend, indemnify and hold harmless Seller and its agents and employees against any loss, damage, claim, suit, liability, judgment or expenses (including, without limitation, attorney’s fees) arising out of or in connection with any injury, disease or death of persons (including, without limitation, Buyer’s family members, employees and agents) or damage to or loss of any property or the environment by reason of any claim of negligence, breach of express or implied warranty, strict liability in tort or other theory of law, violation of any applicable laws or regulations, resulting from or in connection with the sale, transportation, installation, handling, use, restoration or repair of the Property by Buyer or of the information, designs, services or other work supplied to Buyer, whether caused by the concurrent and/or contributory negligence of Buyer, Seller, or any of their family members, agents, employees or suppliers. The obligations, indemnities and covenants contained in this paragraph shall survive the consummation or termination of this transaction. In the event of any claim against Seller by an employee or an agent of Buyer or an employee or agent of a subcontractor of Buyer or other person who might or would benefit from an immunity from making indemnity, contained in any state or federal workers’ compensation law or similar law, the Buyer specifically waives the immunity and agrees to indemnify Seller and hold Seller harmless from any claim for any type of injury or damages.
Buyer shall notify Seller within seven (7) days of Buyer’s receipt of knowledge of any claim involving Seller’s Property resulting in personal injury, death, or damage to property and Buyer shall fully cooperate with Seller in the investigation and determination of the cause of such accident and shall make available to Seller all statements, reports and tests made by Buyer or made available to Buyer by others. The furnishing of such information to Seller and any investigation by Seller shall not constitute an assumption of any liability by Seller.
Seller may cancel the sale of a Property if: (i) Buyer is in breach of any of the terms and conditions set forth herein, or fails to provide security or to pay advances or prepayment agreed with Seller, or in event of default of payment; and (ii) where the breach is remediable, Buyer has failed to remedy within thirty (30) days of Seller’s notice requiring remedy. Termination does not affect any rights of either party that may have accrued prior to termination.
8. APPLICABLE LAW
Any claims, disputes or controversies arising out of the sale of a Property shall be construed and governed in accordance with the applicable laws of the State of Florida, without giving effect to principles of (i) comity of nations or (ii) conflicts of law. Should the Parties fail to resolve their dispute amicably such dispute shall be exclusively subjected to resolution by arbitration pursuant to the rules of the American Arbitration Association.
The arbitration will take place in Palm Beach County, Florida and the language of arbitration shall be English.
In the event of a contradiction or conflict between any information contained in seller’s cata- logues and these Terms and Conditions of Sale, these Terms and Conditions of Sale shall prevail. The Terms and Conditions of Sale exclusively define and control the relationship with Buyer, at all times. In the event of any conflicts between these Terms and Conditions of Sale and any document issued by Buyer, these Terms and Conditions of Sale shall always prevail.
Seller’s waiver of any breach, or failure to enforce any of the terms and conditions hereof at any time shall not in any way affect, limit or waive Seller’s right thereafter to enforce and compel strict compliance with every term and condition hereof.
All provisions hereof are severable and divisible, and if any such term or provision should be held invalid or unenforceable for any reason, such term or provision shall be void to the extent of such invalidity or illegality, without invalidating any of the remaining terms.
13. FORCE MAJEURE
Seller shall not be liable to Buyer for any loss, cost, expense or damage occasioned by Seller’s failure to make delivery or for any delay in making delivery when such failure or delay arises out of or from causes or events beyond Seller’s reasonable control, including, but not limited to, fires, floods, accidents or other acts of God, strikes, labor disputes or difficulties, acts or requirements of government or civil authority, riot, war, embargo, terrorist activity, truck or car shortage or other transportation delay or difficulty or inability to obtain or scarcity of labor, component parts or raw materials. In the event of any such occurrence or event precluding shipment, Seller reserves the right to apportion available supplies of the Property in any manner that is fair and reasonable and to adjust the purchase price as Seller will deem fit under the circumstances. In the event of a delay arising out of any such occurrence or event, the shipment date(s) shall be postponed for a period of time equal to the time required to remedy, correct or alleviate such cause or event, if capable of correction.
The following provisions will survive expiration or termination of any transaction between the Parties: indemnity obligations, provisions limiting liability, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of such transaction and will apply to both parties’ respective successors and permitted assigns.
END OF TERMS AND CONDITIONS OF SALE