*Terms of Sale
INCLUDING, BUT NOT LIMITED TO, ONLINE ORDERS, CUSTOM FABRICATION, OUTSOURCED WORK, SERVICES, OR RENTALS:
These terms and conditions will apply to sales of all Zilla LLC (“Zilla”) products and/or services that are the result of either: (i) Zilla’s acceptance of a purchaser’s written request (the “Purchase Order”) for the services and/or products specified therein; or (ii) a purchaser’s acceptance of a written estimate from (the “Estimate”) for products and/or services specified therein; or (iii) a purchaser's online order (the "Online Order") or (iiii) a purchaser's written request via email (the "Email") for products and/or services specified therein. For the purposes of these terms and conditions, “Buyer” shall refer to the purchaser (company and/or individual) identified in the applicable Purchase Order, Estimate, Online Order, or Email Estimate as the case may be. Further, Buyer and Zilla may be referred to herein individually as a “Party” or collectively as the “Parties”. The Parties agree as follows:
General. Upon acceptance of a Purchase Order, an Estimate, an Online Order, or Email, as the case may be, the provisions set forth in the applicable Purchase Order, Estimate, Online Order, or Email and these terms and conditions (collectively, referred to herein as the “Agreement”) will be legally binding upon the Parties. Further, upon acceptance of a Purchase Order, Estimate, Online Order, or an Email, as the case may be, Zilla agrees to provide to Buyer all products and/or services set forth in the applicable Purchase Order, Estimate, Online Order, or Email (collectively, the “Deliverables”), and Buyer agrees to pay Zilla the Purchase Price (defined below) in accordance with this Agreement. For the purposes of this Agreement the term “Applicable Order” shall refer to the applicable Purchase Order, Estimate, Online Order, or Email, as the case may be, that is subject to these terms and conditions.
Electronic/Facsimile Transmission. If a Party delivers the Applicable Order to the other Party via electronic mail, facsimile, or other means of electronic transmission, then such transmission will constitute a duly executed original. Further, the Party receiving an Applicable Order may accept such Applicable Order via electronic mail, or other means of electronic transmission, and such transmission will constitute a duly executed original. Buyer acknowledges and agrees that Zilla may rely on any electronic signature that is reasonably believed to be the approved and authorized signature of the Buyer. Buyer agrees not to contest the admissibility, validity, or enforceability.
Delivery. Zilla will deliver the Deliverables at such place, or places, and in accordance with the delivery instructions specified by Buyer in the Applicable Order. If no place of delivery is specified in the Applicable Order, the Deliverables will be delivered to Buyer’s address as it appears in the Applicable Order. If no delivery instructions are specified in the Applicable Order, Zilla will arrange delivery of the Deliverables in accordance with Zilla’s standard practices. Buyer will be solely responsible for all delivery charges. Unless otherwise indicated in the Applicable Order, Zilla will not be liable for any delay in delivery or failure to deliver due to any reason, in whole or in part, beyond Zilla’s reasonable control, including but not limited to, unavailability of materials, labor disruptions, Acts of God, health order, pandemic, weather, transportation malfunction, and/or other delivery disturbances. Buyer will also be responsible for all additional charges assessed by Zilla, in its sole discretion, for special packaging or shipment instructions specified by Buyer in the Applicable Order. All applicable delivery charges will be included as a separate line item on all invoices, if applicable, delivered to Buyer in accordance with Section 4 below. Title to the Deliverables will pass to Buyer upon acceptance of the Deliverables pursuant to Section 7.
Invoices and Payment. All sales are final. As full consideration for the Deliverables, Buyer will pay to Zilla the amount specified in the Applicable Order (the “Purchase Price”). Applicable taxes and other charges, including but not limited to shipping costs, setup fees, design fees, labor costs, drayage, union fees, duties, customs, tariffs, imports and government imposed surcharges, will be stated as separate line items on the applicable invoice. Unless otherwise agreed upon by the Parties, Zilla will provide Buyer with an invoice for the Applicable Order within thirty (30) days of acceptance of the same. Unless otherwise agreed upon by the Parties, in writing or otherwise stated in estimates or invoices, Buyer will pay each invoice in full either upon receipt, within thirty (30) days of receipt, or based on the terms stated in the Applicable Order. Any invoice that remains unpaid for more than thirty (30) days after becoming due will accrue interest on the unpaid balance at a rate of 1.5%, per month, until paid in full. Unless otherwise agreed upon by the Parties, all amounts paid by Buyer to Zilla, in accordance with this Agreement, are non-refundable. All deposits paid, when applicable, are non-refundable. Balance payments are non-refundable after the shipment has left Zilla facilities, or control, and is in the hands of the shipping company.
Risk of Loss & Destruction of Goods. Buyer assumes all risk of loss of the Deliverables once the Deliverables are no longer under Zilla's direct control. If the Deliverables, or any portion thereof, are destroyed after Deliverables are no longer under Zilla’s direct control, Buyer will submit all claims for loss, damage, or destruction attributable to shipping directly to the applicable carrier or shipping service, as the case may be, and will hold Zilla harmless for the same.
Warranties. Deliverables may be subject to certain manufacturer warranties and, in such cases, Zilla will not be responsible for honoring such manufacturer warranties. Upon request, Zilla may, at its discretion, assist Buyer in filing or directing claims for such “non-conforming” Deliverables to the applicable manufacturer. Unless otherwise specified in the Applicable Order, or as required by law, Zilla makes no warranty to Buyer with regard to the condition or merchantability of the Deliverables, and Buyer is purchasing such Deliverables on an “as is” basis. Zilla may, at its discretion, replace and/or correct defects of any Deliverables that Buyer claims are “non-conforming” in accordance with Section 7 below, however, Zilla is under no obligation to replace and/or correct such “non-conforming goods”.
Inspection and Acceptance. All sales are final. Upon Buyer’s receipt of the Deliverables, or delivery to Buyer's requested destination, Buyer will have forty-eight (48) hours thereafter (the “Inspection Period”) to inspect and evaluate the Deliverables to determine whether such Deliverables satisfy the specifications, instructions, drawings, requirements, standards, samples, or other descriptions set forth in the Applicable Order or other notice furnished or specified by Buyer (collectively, the “Specifications”). If during the Inspection Period, Buyer determines that the Deliverables fail to conform to the Specifications, Buyer must notify Zilla of such determination within the Inspection Period. Within fourteen (14) days of receiving such notice Zilla may, at its option, repair or replace any non-conforming Deliverables at no cost to Buyer or provide Buyer with a refund for the non-conforming goods and will provide Buyer with written notice of its decision. In such an event, restocking fees may apply to applicable goods. Customized goods, including but not limited to custom-manufactured or custom-fabricated goods, custom rental equipment, and custom printed goods, are non-refundable. In the event Zilla elects to replace any non-conforming Deliverables or issue Buyer a refund, as the case may be, Buyer will first cause all non-conforming Deliverables to be returned to Zilla. Notwithstanding the foregoing, Buyer’s use, modification, or installation of any alleged non-conforming or defective Deliverables after receipt, or Buyer’s failure to comply with this Section 7, will bar any claim against Zilla for non-conforming Deliverables and Buyer will be deemed to have accepted the Deliverables “As Is”.
Change Orders. If Buyer requires any change(s) to the Applicable Order or the Specifications therein, as the case may be, such change(s) must be requested in writing (a “Change Order”) and delivered to Zilla. No Change Order shall become binding on Zilla or a part of this Agreement unless agreed upon by Zilla. Zilla reserves the right to assess, in its sole discretion, any additional charges to the Applicable Order that may result due to Zilla’s acceptance of a Change Order, and Buyer agrees to pay any additional charges.
Indemnity. Buyer agrees to indemnify, defend, and hold harmless Zilla, its owners, directors, officers, employees, affiliates, and/or agents (“Indemnitees”), from and against all loss, liability, cost, damage, or expense whatsoever, including but not limited to reasonable attorney’s fees, incurred by or alleged against Indemnitee’s as a result of Buyer’s breach of this Agreement or as a result of acts, errors, or omissions by Buyer, its agents, and/or its employees. This Section 9 will survive termination of this Agreement for any reason.
Intellectual Property Rights. The Parties agree that all logos, designs, drawings, trademarks, service marks, labels, product names, media, and service names with respect to any Applicable Order, this Agreement, or the Deliverables (collectively, the “Marks”) are owned or licensed by or to Zilla and/or its affiliates. Buyer will refrain from copying, displaying, or otherwise using any of the Marks without Zilla’s prior written consent. Notwithstanding the foregoing, Buyer agrees to refrain from using the Marks in any manner likely to cause confusion, disparagement, or dilution of the Marks and/or in connection with any product or service that is not authorized or sponsored by Zilla.
Confidentiality. In connection with this Agreement, Buyer may acquire Zilla Confidential Information (as defined below) in connection with its performance hereunder and agrees to keep such Zilla Confidential Information in confidence during and following termination or expiration of this Agreement. For the purposes of this Agreement, “Zilla Confidential Information” includes but is not limited to all information, whether written or oral, in any form, information relating to the research, development, photographs, drawings, logos, designs, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel data, and other material or information considered proprietary by Zilla relating to the current or anticipated business or affairs of Zilla which is disclosed directly or indirectly to Buyer. In addition, Zilla Confidential Information means any third party's proprietary or confidential information disclosed to Buyer in the course of providing the Deliverables to Zilla. Zilla Confidential Information does not include any information: (i) which Buyer lawfully knew without restriction on disclosure before Zilla disclosed it to Buyer; (ii) which is now or becomes publicly known through no wrongful act or failure to act of Buyer; (iii) which Buyer developed independently without use of the Zilla Confidential Information, as evidenced by appropriate documentation; or (iv) which is hereafter lawfully furnished to Buyer by a third party as a matter of right and without restriction on disclosure. In addition, Buyer may disclose Zilla Confidential Information which is required to be disclosed pursuant applicable law or as expressly authorized by Zilla prior to such disclosure.
Force Majeure. Zilla will not be liable for any circumstances beyond its control which may make such delivery, installation, or performance commercially impractical, including but not limited to, Acts of God, fire, flood, acts of war, government action, accident, health order, pandemic, labor difficulties or shortage, or inability to obtain materials, equipment, or transportation.
Severability. If any provision of this Agreement will be deemed to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
Limitation of Liability. IN NO EVENT WILL ZILLA BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER OR NOT ZILLA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. In no event will Zilla be liable to Buyer or any third party for damages for loss of business or business profits, business interruption, or any other pecuniary loss in connection with or arising out of this Agreement. Notwithstanding the above, in no event will Zilla’s liability to Buyer or any third party under this Agreement, if any, exceed, in the aggregate, the cost of the Deliverables purchased pursuant to the Applicable Order(s). Any action resulting from any breach on the part of Zilla must be commenced within one (1) year after the cause of action has occurred.
Assignment; Waiver. The Parties may not assign this Agreement, or any of its rights or obligations under this Agreement, without the prior written consent of the other Party. Any assignment or transfer without such written consent will be null and void. This Agreement will inure to the benefit of, and be binding upon, the successors and assigns of the Parties without restriction. The failure of any Party herein to enforce at any time any of the provisions of this Agreement will in no way be construed to be a waiver of any such provision, nor in any way to affect the validity of this Agreement or any part thereof or the right of any Party thereof to enforce each and every such provision. No waiver of any breach of this Agreement will be held to be a waiver of any other or subsequent breach.
Notices. All notices and other communications required hereunder must be in writing, and may be delivered via regular mail, certified mail, facsimile transmission, or electronic transmission. Delivery of notices hereunder will be considered to occur upon receipt of the intended recipient.
Survival of Obligations. Unless otherwise indicated in this Agreement, all obligations and duties set forth in this Agreement will survive the consummation of the transaction contemplated herein or expiration or termination of this Agreement.
Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Ohio, without giving effect to any choice or conflict of law provisions. The Parties agree that the exclusive venue to resolve any legal dispute will be the courts located in Franklin County, Ohio and consent to the jurisdictions thereof.
Attorneys Fees. If it becomes necessary to bring suit to enforce any provision of this Agreement, the prevailing party will be entitled to recover, in addition to any other award, its reasonable costs incurred in connection therewith, including court costs and attorney’s fees. For purposes of this Agreement, “prevailing party” means, for any proceedings, the Party in whose favor an award is rendered, except that neither Party will be the prevailing party if in those proceedings the award is rendered in favor of one Party on one or more claims or counterclaims and in favor of the other Party on one or more other claims or counterclaims. If any proceedings are voluntarily dismissed or are dismissed as part of settlement of that dispute, neither Party will be the prevailing party in those proceedings.
Entire Agreement; Modification. This document contains the entire agreement between the Parties and supersedes any prior or contemporaneous discussions, negotiations, representations, or agreements between them relating to the Deliverables. This Agreement may not be varied, modified, altered, or amended unless agreed upon by the Parties in writing.