Product Purchase Agreement
Dec 13, 2015
This Agreement is entered into by and between Creative Metal MD, LLC, a Maryland Corporation, hereinafter “Seller”, and the “Buyer” (i.e., the direct customer for whom the product is being made, who may be the end user or alternatively, a product retailer or reseller), for the purposes herein stated. This Agreement protects both Buyer and Seller, and represents the totality of all terms and conditions pertaining to the purchase of product(s) from Creative Metal MD, other than those covered by Maryland State and US Federal Law. When a Buyer places a firm order for a product, Buyer agrees to accept this Agreement and all its terms and conditions without Buyers' signature required on this document. Should the Buyer disagree with any of the terms in this agreement, Buyer should not purchase the product without discussion and written modification this Agreement by the Seller. Buyer should identify any specific concerns, and negotiate with Seller on possible modifications of this agreement; otherwise it is assumed Seller concurs with all clauses in this Agreement as written here without exception, if Buyer places an order for the product(s).
Definitions – In this agreement the term “product” or “products” has the meaning of any item created and sold by Creative Metal MD (Seller) to the Buyer.
1. AGREEMENT: Once the product(s) have been paid for in full by the Buyer, the Seller, Creative Metal MD, LLC hereby sells, conveys and transfers to Buyer all rights, title and interest in the product, as described on the website, invoice, and any other supporting written information such as Purchase Orders, contract agreements, and emails.
2. ORDER CANCELLATION. The making of a down payment or issuing a signed PO constitutes a non-revocable contract. All orders are final. Creative Metal MD makes custom products, and once production authorization is authorized by the Buyer, it purchases materials and schedules its labor force in the production line to specifically produce the product(s) ordered. However, should the buyer find it necessary to cancel the order or substantially modify the design of a product already in the production line (there is no charge for design modifications to design proofs prior to the Buyer authorizing production), Creative Metal MD may elect to cancel the order and refund the Buyer's money, subject to a cancellation fee. This fee is 10% if the order is cancelled within 2 working days after the order is placed; and 50% if it is cancelled within 10 days. After 10 days, no refund will be made. These refunds depend on production work load, any special material purchased, etc, and are entirely at the discretion of Creative Metal MD, LLC.
3. DELIVERY AND ACCEPTANCE: Acceptance by the Buyer shall be defined as the Buyer taking possession of the product and not returning the products to Creative Metal MD, LLC within 5 days. Such acceptance shall acknowledge that the product is in good order and condition and that Buyer is satisfied with same, and all agreed upon payments are due and payable
If there are specific issues with non-conformance of the delivered product to the approved Specification (Final Proof) that can be readily corrected by the Seller, Buyer can state these problems to the Seller within 10 days after delivery and claim conditional acceptance, with final acceptance occurring if and when the Seller fixes these problems without further cost to Buyer, including shipping. The Seller then has 45 days to fix the problems (the Buyer must make the product available for repair during this period, and repair may take place on-site after the product are installed). If the problems are fixed satisfactorily by the Seller or its designee in this time period, so that the repaired or modified product meets the specifications on the Final Proof, the Buyer agrees to accept the repaired product and complete full payment.
If the product cannot be repaired by the Seller or its designee within the 30 days so it meets the specifications on the final proof, or its appearance and workmanship after repair does not meet professional product standards, the Buyer may then refuse acceptance and return the product(s) (seller will pay for shipping). In the highly unlikely event this occurs, all of the Buyer payments related to that item being returned will be refunded to the Buyer. In no case will a refund be made if the Buyer retains possession of the product(s);
However, a partial refund may be offered by the Seller under certain conditions; the Buyer may choose to accept or reject this offer. It is possible, although unlikely, that there are some minor cosmetic style errors which do not affect functionality or professional appearance (e.g., wrong font for text used, wrong border pattern, etc) of the delivered product that are difficult or are expensive to repair by the Seller, and/or the Buyer is willing to keep the product “as is”, because the product(s) are still acceptable for their intended purpose. In this case, the Seller may offer the buyer a discount in total price (typically 5% to 10%) as compensation for the out-of-spec product, as an alternative to modifying them. The amount of discount is negotiated between Buyer and Seller, but is typically less than the cost for the Seller to make a new product or modify an existing product so it meets specs. The Buyer can accept the product with this negotiated discount, or alternatively, return the Product to the Seller, getting a full refund. This situation is quite unlikely to occur.
If the Buyer refuses acceptance of the product(s), either initially or after conditional acceptance, it has 10 days to return the product to Creative Metal MD, LLC. in their original delivered condition stating its reasons for non-acceptance. The only valid reasons for the Buyer declaring non-acceptance of the product(s) are: (1) substantial design specification variances (e.g., wrong size, wrong colors, wrong layout, wrong materials, wrong background texture, misspelled text, unreadable text) between the delivered product and the product design specifications on the Final Proof that cannot be repaired by Creative Metal MD, LLC or its designee; (2) poor quality workmanship or structural problems, well below professional product standards, that cannot be repaired by Creative Metal MD, LLC or its designee; (3) loss, severe damage or destruction of the product(s) that occurred during shipping that cannot be repaired by Creative Metal MD, LLC or its designee.
If the Buyer wants to change the design, so that it is different from the Final approved Proof, after the product(s) is delivered, this is NOT a valid reason for refusing product acceptance. Any significant problems that occur to an Accepted product during normal "wear and tear" that bring it into non-conformance of the original specification proof are covered in Paragraph 8 below, TWO YEAR WARRANTY.
4. PURCHASE PAYMENTS: Buyer agrees to pay unto the Seller, Creative Metal MD, LLC, the total sum of money due as specified in the Final Proof, invoice, and other documentation such as emails and Purchase Orders and the online store. Until the total sum of money for the agreed upon price is paid, the product remain the property of Creative Metal MD, LLC. Partial payment by the buyer conveys no ownership or rights to the product by the Buyer. Creative Metal MD, LLC reserves to right to collect any payments the Buyer owes in arrears, which result in default of the contract, by any legal means; including charging a credit card number provided by Buyer for the down payment or initial 50% payment; employing a Collection Agency; placing a Mechanic’s lien on a building the product is installed on; and bringing a lawsuit against the Buyer. In addition, nonpayment of money due on a contract, resulting in default, will result in the Buyer being reported to the major Credit Bureaus for credit delinquency. Also, the Seller may in some cases repossess the product because the product is still the property of the Seller, and are collateral for the credit purchase.
5. SCHEDULE. Upon receipt of Order, which will include Approval of Final Design Proof by Seller, transferring of Down Payment from Buyer to Seller, and submittal of other documentation such as Purchase Order by Buyer to Seller, Seller will commit to a firm delivery date for delivery of product to buyer. Seller will make every attempt to meet this date, especially if the product is required for a critical milestone for Buyer (e.g., store opening, birthday or Christmas present, major event,, etc), and will provide status to Buyer on product delivery schedule whenever requested by Buyer. Seller has been able to meet virtually all critical dates in last 3 years, even if it requires shipping the product by Air Freight at Seller's expense. However, due to the large volume of custom and unique product produced in a short time, vendor materiel delivery delays, uncertainty of paint and coating drying time in wet weather, and variability and delays in shipping times, Seller cannot absolutely guarantee delivery of product on agreed upon dates, and Buyer agrees Seller will not be subject to schedule penalties or payment withholds due to any late delivery. Furthermore, Buyer agrees not to file a lawsuit against Seller for actual or punitive damages due to late delivery of product(s). However, if actual product delivery time is later than 10 days after delivery time promised by the Seller (loss or damage of product by shipper is excluded from this clause), Buyer has the right to cancel the product order and get all its payments refunded. If Shipper causes schedule delay, Buyer cannot cancel the product order and get a refund. Seller is not responsible for any consequential damages to the Buyer, his agents, or to a third party due to delays of delivering a product (s), such as the cost of loss of business, delay of an event, etc. In case of delays of delivering product beyond the contractual delivery date, the Seller is only responsible at most to the cost of the product, assuming it cannot be constructively used by the Buyer because of the delay in delivery time. In this case, the product must be returned to the Seller (or it may not be delivered at all to the Buyer) before a complete refund will be made. To get a refund, the Buyer must put in writing the "must have by" delivery date, and both Buyer and Seller must product this agreement. Verbal understandings of firm delivery schedule requirements will not be honored; they must be in writing with both parties agreeing to the delivery date.
6. TITLE TO PRODUCT: The Seller, Creative Metal MD, LLC represents that it owns all product described herein free and clear and that such product is free of all liens when it delivers the product to the Buyer.
7. MAINTENANCE AND REPAIR: After acceptance by the Buyer, all maintenance and repair costs to the product, except for that covered by the 2 year warranty defined in Paragraph 8, shall be paid by Buyer, and Seller is hereby relieved from any responsibility to maintain or repair product.
8. TWO-YEAR WARRANTY: The Seller offers a two (2) year a warranty on all of its product and plaques, both indoor and outdoor, which covers defects in material, design, or workmanship. This warranty covers structural damage; splitting, cracking or rotting; serious pitting or noticeable denting of product,; and significant fading or peeling of coatings, including resin epoxy, primer, color paint, or clear coat. Excluded from this warranty is any damage from vandalism; accidental impact; high winds or gusts greater than 70 mph; product banging against a post or other hard object due to motion from winds (e.g., product hanging from chains swinging wildly); bird damage; hailstorms; abuse to the product after it is received until it is properly installed; improper installation; and any unusual operating environments the product was not designed for. If the Buyers product suffers damage covered under this warranty in the 2 year warranty period, buyer can return the product to the Seller (shipping will be pre-paid by Creative Metal MD, LLC), and the product will be repaired or replaced, or the Seller may contract with a local product company for in-place repair. See Paragraph (I) below for more details. The warranty period starts the day the product is delivered to the Buyer, not the day it is installed.
9. Product INSTALLATION. Seller takes no responsibility for proper product installation, unless Seller is under contract to install the product. However, Seller will take responsibility for the integrity of all hardware it provides and attaches to the product(s), assuming it has been informed correctly of the expected thermal and structural environment the product and its supports will be operating in.Seller takes no responsibility for product warping in extremely high-temperatures experienced by the product, greater than 130 degrees F. Seller takes no responsibility for failure of a wall, beam, post, eyehook, or other structural support unless Seller has provided such support, or has inspected such support and has installed the product on it. When a hanging product is ordered, Buyer must inform Seller of worst case expected wind condition so that proper hardware is installed to avoid a potential safety problem. See Paragraph (H) below for more details. Seller is not responsible for structural failure if winds exceed the design values of 70 mph (e.g., a tornado or hurricane). Buyer agrees Seller is indemnified against any damages to persons or property in case of a product structural failure when Buyer, or third Party, installs the product. In any case of product structural failure, Buyer agrees that Sellers liabilities are limited to the cost for replacing the product, and will not include any consequential damages to persons or property.
10. TAXES AND LICENSES: All taxes, license fees, import and customs duties, and other expenses associated with the product shall be paid by Buyer. Maryland sales tax, if applicable for Buyers located in the State of Maryland, will be added onto the price of the product and the Buyer will pay this tax, which the Seller will then send to the State of Maryland.
11. INDEMNIFICATION OF SELLER: Buyer shall indemnify, protect and hold harmless the Seller (Creative Metal MD, LLC); its agents, servants, successors and assigns from and against all losses, damages, injuries, claims, demands and expenses, including legal expenses, of whatever nature, arising out of the use, condition or operation of any item of the product, regardless of where, how and by whom installed. Buyer shall assume the settling of, and the defense of any lawsuits or other legal proceedings brought to enforce all such losses, damages, injuries, claims, demands and expenses and shall pay all judgments entered in the suit for other legal proceedings. The indemnification and assumptions of liability and obligation herein provided shall continue in full force and effect notwithstanding the termination of this agreement, whether by expiration of time, by operation of law or otherwise.
12. DEFAULT BY BUYER: Time is of the essence under this agreement and any of the following events shall constitute defaults on the part of Buyer here under: (a) failure of Buyer to pay any payment within fifteen (15) days in which same becomes due; (b) any breach or failure of Buyer to perform any of its obligations (such as returning the product if it refuses acceptance, or making them available for repairs) under this agreement; (c) insolvency of bankruptcy of Buyer or assignment for the benefit of creditors; (d) any other act of Buyer which will causes Seller to deem itself insecure. Upon the occurrence of any default, Seller may exercise this option without notice to or demand on the Buyer and thereupon all product and rights of Buyer therein shall be surrendered unto Seller; upon default, Seller may take possession of the product where found with or without process of law in court, may enter upon the agreed premises without liability for suit, action, or other proceedings by Buyer and remove same; hold, sell, agreement or otherwise dispose of the product or keeping of any of them as the Seller so chooses without effecting the obligation of Buyer as providing by this agreement; collect all unpaid payments due without prejudice to the Seller in right to regain possession of the product.
13. INTELLECTUAL PROPERTY & DESIGN RIGHTS. Seller agrees to allow Buyer to put photos of completed product(s), including installed product, on Seller's website (www.CreativeMetalMD.com), for purposes of advertising only, unless Buyer provides in writing a prohibition to do so, within 10 days after the product is delivered. If Buyer has developed the product's design, or its logo, or artwork, and provided this to the Seller, Buyer can declare this as intellectual property (including a copyright) and Seller has no right to use these designs on any other product, banners, or other material to be sold without express written permission from the Buyer; however, Seller can still include photos on the website unless explicitly prohibited from doing so by the Buyer within 10 days of product delivery.. All designs that the Buyer has developed for "free", ,ie., no cost to Seller except for the nominal $30 proof fee which is refunded once Buyer purchases product, remain the intellectual property of Seller, and Buyer may not use these designs on any other product, business cards, banners, brochures, printed materials, logos, etc without express permission of Seller (usually this is given at no cost). However, if Buyer has commissioned Seller in a separate transaction specifically to design a logo, emblem or other artwork; in this case, Buyer then owns all rights to the design and Seller cannot use this for other purposes without the express written permission of the Buyer. Both Buyer and Seller agree that should any dispute arise on intellectual property ownership, neither party will file a lawsuits but an independent arbitrator located in the State of Maryland will be employed, with arbitration costs to be shared equally between Buyer and Seller, to determine intellectual property ownership, fault, and any damages.
14. FINAL RELEASE. Upon receiving the final payment from Buyer under this agreement, Seller shall execute such further assurances as may be reasonably required by Buyer to insure that the equipment is free from all liens and encumbrances.
15. GOVERNING LAW: This agreement shall be governed by the laws of the State of Maryland. Any lawsuit initiated by Seller to recover payments or damages will most likely be filed in the State of Maryland; however, Seller reserves to right to file a lawsuit in the State where the Buyer is located. Buyer agrees that any countersuit will be filed in the State of Maryland.
signed, Luke Markey CEO/Owner Creative Metal MD, LLC