ALL SALES FINAL.
GENERAL TERMS AND CONDITIONS
Applicability. These terms and conditions of sale (these "Terms") are the only terms which govern the sale of the goods ("Goods") and services ("Services") by Alpaca Action LLC DBA KCA Design ("Seller") to the buyer named on the accompanying invoice ("Buyer"). The accompanying invoice (the "Sales Confirmation") and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer's general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms. Notwithstanding anything to the contrary contained in this Agreement, Seller may, from time to time change the Services without the consent of Buyer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Sales Confirmation.
Delivery/Shipping. The Goods will be delivered within a reasonable time after the receipt of Buyer's purchase order. Seller shall not be liable for any delays, loss, or damage in transit. Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to the location and in accordance with the terms on the face of the Sales Confirmation (the "Delivery Point") using Seller's standard methods for packaging and shipping such Goods. Seller shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any such dates shall be estimates only. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point.
Price. Buyer shall purchase the Goods and Services from Seller at the price (the "Price") set forth on the face of the Sales Confirmation. Unless otherwise specified, the prices set forth in the Sales Confirmation include all acceptable federal, state, and local taxes. All such taxes shall be stated separately on Seller's invoice.
Payment Terms. Buyer shall pay all invoiced amounts due to Seller immediately upon receipt of Seller's invoice. No Services shall commence by Seller until Buyer pays in full. Buyer shall make all payments hereunder by the method designated on the face of the Sales Confirmation and in United States Dollars. Seller shall be entitled in its sole discretion to suspend the delivery of any Goods or performance of any Services if Buyer fails to pay any amounts when due hereunder.
Buyer Acknowledgments. By remitting payment to Seller pursuant to the applicable Sales Confirmation, Buyer expressly acknowledges and agrees to the following:
ALL SALES ARE FINAL. NO REFUNDS, EXCHANGES, OR RETURNS ACCEPTED. Each custom product is made specifically to Buyer’s specifications and as a result, Buyer’s orders can't be modified, cancelled, or returned, and Buyer’s purchase is non-refundable.
For vintage Goods: Vintage items may show imperfections consistent with their age, and Buyer understands no restoration work has been performed by Seller unless specific refinishing services have been agreed to in writing by both parties.
For painted Goods: Due to the custom nature of this process, and the hand painted technique, Buyer understands that the results on Buyer’s purchased Goods may vary from this mockup. Painted Goods are hand-crafted art, can vary, and design is permanent. Such design will not be altered, revised, redrawn, or otherwise once Buyer’s Good(s) is/are completed. Any subsequent modifications are subject to a new, independent Sales Confirmation order separate and entirely apart from the original Sales Confirmation or order.
No Warranty. BUYER AGREES THAT GOODS ARE SOLD “AS-IS” AND SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, THIRD PARTY GOODS INCORPORATED THEREIN, OR SERVICES, AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY OF TITLE; (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. BUYER ACKNOWLEDGES AND AGREES THAT IT HAS NOT RELED ON ANY REPRESENTATION OR WARRANTY MADE BY SELLER OR ANY OTHER PERSON ON SELLER’S BEHALF.
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, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS 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.
Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller in the presence of and certified by a notary. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement 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.
Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement 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, 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.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement 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
Governing Law; Venue. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the State of Texas without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal or state courts of the State of Texas in each case located in Dallas County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction, and this Agreement shall be deemed modified by a court of competent jurisdiction to as closely match the original intent of the parties as possible.
Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.
Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.