THESE TERMS AND CONDITIONS (the “Terms”) govern the relationship between American Stalls LLC (“American Stalls”) and the person or entity identified as a “Customer” in any purchase order or other document prepared by American Stalls and incorporating these Terms (each, a “Purchase Order”). American Stalls and the Customer are each a “Party” to these Terms and are together referred to herein as the “Parties.”
Goods and Services. Subject to these Terms, American Stalls will perform the services and deliver the goods referenced in each Purchase Order executed by the Customer. In the event of any conflict between the terms of any Purchase Order and these Terms, these Terms will govern unless the applicable Purchase Order identifies the conflicting term and expressly overrides it.
- Pricing. All pricing referenced in any Purchase Order will be in U.S. dollars and will include packing, freight, and other related costs unless the Purchase Order states otherwise. Sales, use, VAT, and other related taxes are not included in the pricing referenced in any Purchase Order. If applicable, taxes will be invoiced to the Customer, and the Customer agrees to pay such taxes upon receipt of such an invoice. All payments must be made in U.S. dollars by check or electronic funds transfer to an account designated by American Stalls.
- Prerequisites. Prior to any performance by American Stalls hereunder, the Customer is required to (a) review and approve in writing those shop drawings and specifications prepared by American Stalls reflecting the custom goods to be delivered pursuant to any given Purchase Order (the “Initial Specifications”), (b) pay a non-refundable deposit equal to 50% of the fees to be paid with respect to any custom goods identified in an applicable Purchase Order (the “Custom Goods”), and (c) pay 100% of the fees to be paid with respect to any non-custom goods identified in an applicable Purchase Order (“Non-Custom Goods,” and, together with any Custom Goods, the “Goods”).
- Invoicing. American Stalls will issue an invoice for the outstanding balance to be paid with respect to any Purchase Order prior to delivery of any Goods referenced in such Purchase Order, and no Goods will be delivered until such fees have been paid in full. Each invoice will be payable within thirty days of issuance, and the Customer will incur a monthly late fee equal to 1.5% of the amount invoiced until such time as the applicable invoice has been paid in full. The Customer will also be responsible for any storage, warehousing, shipping, and freight fees associated with the Customer’s non-payment and resulting non-delivery of any Goods. All Goods remain the property of American Stalls until the Customer has paid all amounts due under the Purchase Order.
- Final Specifications. Following the Customer’s approval of the Initial Specifications, as evidenced by execution of the Purchase Order, American Stalls will use computer-aided design (CAD) to prepare revised specifications based on information provided by the Customer, which information the Customer will timely provide upon American Stalls’ reasonable request. Once such revised specifications have been finalized, the Customer will review and approve such revised specifications in writing, which approval will not be unreasonably withheld, conditioned, or delayed. Upon such written approval, the revised specifications will become the “Final Specifications.”
- Change Orders. The Customer may request changes to the Final Specifications or cancellation of the delivery of any Goods in writing. Should American Stalls receive such a request, American Stalls will prepare a “Change Order” stating the modifications necessary and the associated costs – including, but not limited to, a change order fee, changes in pricing, changes to the estimated delivery schedule, and (with respect to any cancellations) a cancellation fee equal to 20% of the total cost of any Goods that are cancelled plus the cost of producing Initial and/or Final Specifications for such cancelled Goods. No Change Order will be effective, nor will American Stalls be required to implement the terms of any Change Order until it has been executed by both Parties. Notwithstanding the foregoing, American Stalls will not be required to honor any request for a Change Order with respect to Custom Goods that have begun the process of fabrication or that have been completed, and the Customer will remain obligated to pay all costs associated with such in-progress and/or completed Custom Goods.
- Delivery. Upon the Customer’s execution of the Purchase Order, American Stalls will provide the Customer with an estimated delivery schedule for the Goods, and will keep the Customer apprised regarding the actual delivery dates. All deliveries will be made to the location specified in the applicable Purchase Order unless the Parties otherwise agree in writing. American Stalls will deliver the Goods to the Customer by means of the carrier identified in a Purchase Order or by other reasonable means in accordance with these Terms and the terms of the Purchase Order. American Stalls reserves the right to reject any transport presented for loading that American Stalls reasonably believes to be unfit or unsafe.
The Customer will be responsible for unloading the Goods from the delivery vehicles, and neither American Stalls nor any delivery personnel will participate in such unloading. The Customer will be responsible for the cost associated with such unloading, as well as the cost of storage and transportation of the Goods once they are unloaded. The first two hours’ worth of unloading time is included in the pricing referenced in the Purchase Order. Thereafter, the Customer will incur an unloading expense in the amount of $75 per hour.
- Deferral. The Customer may request that the delivery date for the Goods be deferred by means of the Change Order process referenced in Paragraph 6 of these Terms. In the event that American Stalls agrees to issue a Change Order, the full purchase price for all Goods will continue to be due and payable as of the date an invoice for such purchase price is issued to the Customer.
- Risk of Loss. Shipping is freight on board (FOB) origin. The Customer will bear the risk of loss for all Goods and will take title to such Goods as of the date they are delivered to the carrier for shipment.
- Inspection. The Customer is responsible for inspecting the Goods upon delivery for conformity with the Purchase Order. If, upon inspection, the Customer believes that any Goods fail to conform with the Purchase Order, the Customer must (i) take photographs evidencing any nonconformity, (ii) note any nonconformity – whether based on overage, underage, damage, failure to comply with the Final Specifications, or otherwise – in the carrier’s delivery record and/or bill of lading, and (iii) notify American Stalls promptly (and in any event within 24 hours of delivery) and state whether the Customer is seeking to reject any Goods based on such nonconformity. The Customer’s failure to take such action constitutes the Customer’s waiver of the ability to reject nonconforming goods. For avoidance of doubt, should the Customer fail to submit a rejection claim within 24 hours of delivery of any Goods, the Customer will be deemed to have accepted such Goods and to have found such Goods in good, safe, and merchantable condition fit for the Customer’s intended use.
- Rejection. Should American Stalls receive a timely rejection claim from the Customer, and if, in its reasonable discretion, American Stalls agrees to honor the Customer’s rejection claim, American Stalls will arrange for the return, repair, replacement, or disposal of the rejected Goods or affected components thereof at American Stalls’ expense.
- Returns. American Stalls does not accept returns of any Custom Goods that meet the Final Specifications. American Stalls may accept the return of Non-Custom Goods subject to the Customer’s pre-payment of (i) a restocking fee of up to 40% of the fees charged with respect to such Non-Custom Goods, and (ii) all return shipping costs. The Customer will be responsible for arranging all return shipping logistics. To be eligible for return, all Non-Custom goods must be in their original packaging and in new and saleable condition.
- Force Majeure. American Stalls will not be liable for any loss, damage, detention, or delay, nor be deemed to be in default due to causes beyond its reasonable control (each, a “Force Majeure”) – including, without limitation, fire, flood, storms, or other acts of God; strikes or labor difficulties; acts or omissions of any third party, any governmental authority, or the Customer; compliance with governmental regulations; insurrections, riots, or acts of terrorism; embargoes, delays or shortages in transportation or inability to obtain necessary labor, materials, or manufacturing facilities from usual sources; defects or delays in the performance of its suppliers or subcontractors due to any of the foregoing enumerated causes; or any other cause similar or dissimilar to the foregoing. The Customer’s obligation to make payment hereunder will not be affected by any Force Majeure.
- Limited Warranty.
Representations. Seller represents and warrants that all Custom Goods will (i) be delivered free and clear of all liens, and (ii) upon delivery, will conform to the Final Specifications.
- Warranty. Subject to the other provisions of these Terms, American Stalls warrants that all Custom Goods will be free from defects in material and workmanship that result in structural failure of any such Custom Goods for a period of five years from the date on which such Custom Goods are delivered – SPECIFICALLY EXCLUDING DAMAGE TO OR DEFECT IN PAINT AND FINISH (the “Limited Warranty”).
- Claims. In order to make a Limited Warranty claim, the Customer must:
Promptly provide written notice to American Stalls after discovering any Custom Goods’ structural failure;
- At American Stalls’ request, either (A) permit American Stalls or its designated agent to inspect the Custom Goods in question at the Customer’s premises on a mutually agreed-upon date; (B) at American Stalls’ expense, promptly ship the Custom Goods in question to American Stalls for purposes of inspection; or (C) provide American Stalls with photographs and other documentation necessary to evidence any structural failure of the Custom Goods in question
- Determination. Any Limited Warranty claim will be subject to American Stalls’ reasonable determination that the structural failure of the Custom Goods in question resulted from a defect in material or workmanship.
- Continuation. Following repair of a material- or workmanship-related defect under this Limited Warranty, the Custom Goods in question will remain subject to the same Limited Warranty for the remainder of the original warranty period and are otherwise subject to the same terms and conditions.
- Limitations. THE LIMITED WARRANTY IS CONTINGENT UPON THE PROPER USE OF THE CUSTOM GOODS AT ALL TIMES AFTER DELIVERY TO THE CUSTOMER. THE LIMITED WARRANTY WILL NOT APPLY TO CUSTOM GOODS THAT AMERICAN STALLS REASONABLY DETERMINES TO HAVE BEEN MISUSED, ABUSED, USED FOR ANY PURPOSE BEYOND THE ORDINARY AND USUAL PURPOSES FOR WHICH SUCH CUSTOM GOODS ARE INTENDED, OR HAVE BEEN THE SUBJECT OF AN ACCIDENT. FURTHERMORE, IN THE EVENT THAT CUSTOM GOODS ARE OR WERE REPAIRED OR MODIFIED BY ANY PERSON OR ENTITY OTHER THAN AMERICAN STALLS OR ITS AUTHORIZED AGENT, AMERICAN STALLS MAY, AT ITS OPTION, DECLARE THE LIMITED WARRANTY NULL AND VOID AS TO SUCH CUSTOM GOODS. THE LIMITED WARRANTY WILL NOT APPLY TO ANY DAMAGE CAUSED BY THE CUSTOMER OR BY ANY THIRD PARTY IN THE COURSE OF LOADING, UNLOADING, OR INSTALLING THE CUSTOM GOODS, NOR WILL THE LIMITED WARRANTY APPLY TO ANY OTHER DAMAGE OTHERWISE CAUSED AT ANY TIME BY ANY THIRD PARTY.
- No Other Warranty. THE REPRESENTATIONS CONTAINED IN PARAGRAPH 9(A) OF THESE TERMS AND THE LIMITED WARRANTY ARE EXCLUSIVE AND SUPERSEDE ANY OTHER REPRESENTATIONS OR WARRANTIES MADE IN ANY BROCHURES, MANUALS, CATALOGS, PRODUCT LITERATURE OR OTHER MATERIALS PROVIDED BY OR THROUGH AMERICAN STALLS. FURTHERMORE, NO REPRESENTATIONS, WHETHER ORAL OR WRITTEN, OF ANY OF AMERICAN STALLS' REPRESENTATIVES MAY BE RELIED UPON AS A SUBSTITUTE OR MODIFICATION OF PARAGRAPH 9(A) OF THESE TERMS OR THE LIMITED WARRANTY.
- Manufacturer’s Warranty. American Stalls agrees to and hereby does pass through and assign to the Customer any warranties given by American Stalls' third-party vendors in connection with any Non-Custom Goods to the extent permitted by the terms and conditions of such warranties. THESE ARE THE CUSTOMER'S EXCLUSIVE WARRANTY REMEDIES WITH RESPECT TO NON-CUSTOM GOODS. NO ADDITIONAL TERMS OR WARRANTIES ARE OFFERED.
- Limitations on Liability.
Exclusive Remedy. In the event of any meritorious Limited Warranty claim under Paragraph 9 of these terms, rejection of Goods pursuant to Paragraph 7(e) of these Terms, or any other claim relating to any Goods delivered pursuant to these Terms, AMERICAN STALLS WILL, AS THE CUSTOMER'S EXCLUSIVE REMEDY AND AT SELLER’S OPTION AND EXPENSE, UNDERTAKE ONE OF THE FOLLOWING REMEDIAL ACTIONS: (A) REPAIR OR REPLACE THE DEFECTIVE GOODS OR AFFECTED COMPONENTS THEREOF, OR (B) REFUND ANY AMOUNTS PAID BY THE CUSTOMER WITH RESPECT TO THE AFFECTED GOODS OR COMPONENTS THEREOF. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE CUSTOMER ACKNOWLEDGES THAT THE CUSTOMER IS NOT RELYING ON AMERICAN STALLS’ SKILL OR JUDGMENT TO SELECT OR FURNISH GOODS SUITABLE FOR ANY PARTICULAR PURPOSE AND THAT THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE TERMS SET FORTH HEREIN.
Other Limitations. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AMERICAN STALLS’ LIABILITY AND THE CUSTOMER’S REMEDIES ARE HEREBY LIMITED EXCLUSIVELY TO THE TERMS SET FORTH HEREIN. IN NO EVENT WILL AMERICAN STALLS BE LIABLE TO THE CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LIQUIDATED DAMAGES (INCLUDING SUCH DAMAGES ARISING FROM STRICT LIABILITY, BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, TORT OR OTHER LEGAL THEORY), OR FOR INJURY TO PERSON OR PROPERTY, OR FOR LOST PROFITS, EVEN IF AMERICAN STALLS HAS BEEN ADVISED OF (OR KNOWS OR SHOULD KNOW OF) THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES, AND NOTWITHSTANDING ANY OTHER PROVISIONS OF THESE TERMS TO THE CONTRARY, WILL AMERICAN STALLS’ CUMULATIVE LIABILITY TO THE CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY LOSSES, DAMAGES, CLAIMS, FINES OR EXPENSES OF ANY NATURE NOT DISCLAIMED ABOVE ARISING OUT OF OR WITH RESPECT TO THE GOODS AND/OR THESE TERMS EXCEED THE PURCHASE PRICE OF THE GOODS THAT GAVE RISE TO THE LIABILITY, DAMAGE, OR CLAIM. THE FOREGOING LIMITATIONS WILL APPLY AND SURVIVE NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AMERICAN STALLS OR ITS AGENTS WILL CREATE ANY DIFFERENT OR ADDITIONAL WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF THE LIMITED WARRANTY.
Laws and Regulations. American Stalls does not assume any responsibility for compliance with federal, state, or local laws and regulations. Nothing contained herein will be construed as imposing responsibility or liability upon American Stalls for the obtaining of permits, licenses – or approvals from, or product compliance with laws, codes, or regulations promulgated by – any government or governmental agency required in connection with the supply, installation, or operation of any Goods. The Customer agrees to fully comply with every applicable statute, law, regulation, and ordinance, whether federal, state, or local, that directly or indirectly regulates or affects the Goods.
Indemnification. The Customer agrees to indemnify and hold American Stalls harmless as to third parties with respect to any liability that arises out of or relates to the Customer’s action or non-action in connection with performance of these Terms that results in third-party demands, claims, or litigation. This indemnification will include attorneys’ fees and expenses.
No License. Any Final Specifications, designs, shop drawings, software, or other material disclosed by American Stalls to the Customer remain the exclusive property of American Stalls. The Customer may not, without American Stalls’ prior written consent, copy or disclose such information to any third party. Such information will be used solely for the operation, installation, or maintenance of the Product and not for any other purpose. No material delivered to the Customer hereunder will be considered a “work made for hire,” as that term is used and defined under the United States Copyright Act.
Proprietary Information. In performing hereunder, each Party will come into contact with valuable Proprietary Information of the other Party, as that term is hereafter defined. Each Party agrees to respect the Proprietary Information, as hereafter defined, by retaining such Proprietary Information in strict confidence. All material in whatever form that should reasonably be recognized as having commercial value or other utility to the disclosing Party or any of its clients and is not generally known to the public will be deemed Proprietary Information. Information that (a) is already known or made known to the receiving Party from sources other than the disclosing Party, which sources are not known by the receiving Party to be subject to any confidentiality obligations in favor of the disclosing Party, or (b) becomes generally available to the public without breach of the receiving Party’s obligations will not be deemed Proprietary Information. The Proprietary Information is the sole property of the disclosing Party, and is provided to the receiving Party in the receiving Party’s individual capacity for the sole purpose of facilitating performance of these Terms. Any other direct or indirect use, or any redistribution, of the Proprietary Information is strictly prohibited. The receiving Party will protect and safeguard all of the Proprietary Information against unauthorized use, publication, or disclosure. This obligation of confidentiality and non-use will remain effective for a term of seven years – expressly provided that any Proprietary Information that qualifies for trade secret protection under applicable law will be kept in strict confidence for so long as it continues to qualify for such protection. This obligation of confidentiality and non-use will not apply to Proprietary Information that is required to be disclosed by law or by regulatory or judicial process – expressly provided that the receiving Party must give the disclosing Party prompt advance notice sufficient to enable the disclosing Party to contest or seek to limit such request or order prior to any disclosure. The receiving Party will immediately return or destroy any Proprietary Information immediately upon the disclosing Party’s written request.
Independent Contractor. American Stalls, in rendering performance under these Terms, will be deemed an independent contractor. Nothing in these Terms creates or is intended to create any employer-employee relationship, joint venture, franchise, or partnership between the Parties.
Termination. Without prejudice to its other rights, American Stalls may (a) immediately terminate any Purchase Order and these Terms as to the Customer if the Customer breaches any of its material obligations under these Terms, to include timely payment of any fees, or (b) terminate any Purchase Order and these Terms as to the Customer for convenience upon thirty (30) days’ notice to the Customer. Such termination will not affect any other rights that either Party may have regarding any breach of these Terms that occurred prior to termination.
Parties Bound; Assignment. These Terms will be binding on and inure to the benefit of the Parties and their legal representatives, heirs, legatees, successors, and assignees. The Customer may not assign any of its rights under these Terms to any third party without the express written permission of American Stalls.
Dispute Resolution. These Terms will in all respects be governed by and construed and interpreted in accordance with the laws of the Commonwealth of Virginia without regard to choice of law rules. Any claim or dispute associated with or arising out of these Terms must be resolved exclusively by a state court having jurisdiction in Fairfax County, Virginia or by the United States District Court for the Eastern District of Virginia ‒ Alexandria Division. The Parties agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such claims or disputes. The Parties waive any objection to the laying of venue for any suit, action, or proceeding in such courts. The substantially prevailing Party in any action will be entitled to recover its reasonable costs and fees, including reasonable attorneys’ fees. IN NO EVENT WILL EITHER PARTY SEEK TO HAVE ANY MATTER ARISING HEREUNDER OR RELATING HERETO TRIED TO A JURY.
Notice. Any notice, request, instruction, or other document to be given hereunder by any Party hereto to any other Party will be in writing and will be sufficiently given if delivered in person, sent by electronic mail with return receipt, sent by internationally recognized overnight courier service, or sent by registered or certified mail, postage prepaid, to the receiving Party’s last known address.
Amendment; No Waiver. These Terms may be modified only by a writing signed by both Parties. No waiver of any provision of these Terms or of a breach hereof will be effective unless expressed in a writing signed by the waiving Party. The waiver by any Party of any of the provision of these Terms or of a breach hereof will not operate or be construed as a waiver of any other provision or breach.
Severability; Survival. If any provision of these Terms or the application hereof will for any reason or to any extent be construed by a court of competent jurisdiction to be invalid or unenforceable, the remainder of these Terms, and application of such provision to other circumstances, will remain in effect and be interpreted so as best to reasonably effect the Parties’ intent. The Parties agree that all provisions of these Terms that should, by their nature, survive termination of any Purchase Order and of these Terms as to the Customer will so survive.
Integration. These Terms, together with any applicable Purchase Order, constitute the Parties’ entire agreement with respect to the subject matter hereof and supersede any and all prior written or oral understandings, negotiations, and agreements with respect to the subject matter hereof.