MEDIA TRANSPORT SOLUTIONS TERMS AND CONDITIONS OF SALE

ALL TRANSACTIONS ARE GOVERNED BY SELLER’S TERMS AND CONDITIONS OF SALE.  ANY PROPOSAL THAT INCLUDES DIFFERENT OR ADDITIONAL TERMS THAT VARY FROM MEDIA TRANSPORT SOLUTIONS LLC (“SELLER”) TERMS AND CONDITIONS OF SALE ARE OBJECTED TO AND DISALLOWED.  NOTWITHSTANDING THE FOREGOING, ANY SUCH COUNTERPROPOSALS BY BUYER SHALL NOT OPERATE AS A REJECTION OF THE CONTRACT OF SALE, BUT AS A REJECTION OF THE ADDITIONAL OR DIFFERENT TERM(S)

  1. FORMATION OF CONTRACT.   An order is deemed by Seller to be an offer to purchase, which Seller may accept or reject in its sole discretion.  Seller’s acceptance of an offer to purchase is binding on Seller only if made by written instrument or, if not by written instrument, by shipment of the products ordered (and acceptance by shipment shall only be binding as to the portion of the order actually shipped by Seller). Any automatic or computer generated response to an order by Seller’s internal electronic data exchange system or otherwise shall not be deemed acceptance of an order. Seller’s acceptance is subject to Seller’s Terms and Conditions of Sale (“Terms” or “Agreement”) stated herein. Each order will be governed by, issued under and incorporate the terms of, this Agreement.  To the extent there are any conflicts between this Agreement and of any order, the terms of this Agreement will control unless the order specifically identifies such conflict and requires that the order control. 

  2. CREDIT. Seller may, but shall not be obligated to, grant credit terms to Buyer. Acceptance of any order is subject to final credit approval by Seller.  Seller reserves the right to cancel any sale if Seller deems Buyer unable to pay for any products.  Seller reserves the right, in its sole discretion and without prior notice, to deny, change or limit the amount or duration of credit to be allowed Buyer, either generally or with respect to a particular purchase order, and may require cash payments in advance or security satisfactory to Seller.

  3. PRICES. Prices and payment terms shall be determined by Seller from time to time. Prices do not include, and Seller shall not be responsible for, the cost of freight, insurance, or any required federal, state or local sales or other taxes, duties, export or custom charges, VAT charges, 

  4. SELLER’S RIGHT TO DELAY, CANCEL OR ALLOCATE.  Notwithstanding Seller’s obligations under these Terms, Seller reserves the right to refuse, cancel or delay any shipment to Customer when Customer is delinquent in payments or when Customer has failed to perform any of its obligations under this Agreement. Should any order exceed Seller’s available inventory, Seller shall in its sole discretion determine how to allocate its available inventory without liability to Customer on account of the method of allocation determined or its implementation.

  5. PAYMENT. Buyer must pay Seller’s invoices in full and in the same currency as Seller’s order form within the time noted on Seller’s invoice, or if not noted, then within thirty (30) days after the date of the invoice, with interest accruing after the due date at the lesser of 1.5% per month or the highest lawful rate. Seller may invoice parts of an order separately or together in one invoice. All invoices will be deemed accurate unless Buyer advises Seller in writing of a material error within ten days following receipt. If Buyer advises Seller of a material error, (i) any amounts corrected by Seller in writing must be paid within fourteen days of correction, and (ii) all other amounts shall be paid by Buyer by the due date. If Buyer withholds payment because Buyer believes an invoiced amount is incorrect, and Seller concludes that the amount is accurate, Buyer must pay interest as described below from the due date for the amount until Seller’s receipt of payment. Seller, without waiving any other rights or remedies and without liability to Buyer, may suspend any or all Services until all overdue amounts are paid in full.

  6. LEAD TIMES.  Buyer recognizes and accepts that most products sold by Seller are “manufactured to order” and may take thirteen (13) weeks or longer to manufacture.  Any estimated delivery dates stated on an order are estimates ONLY and are subject to change by Seller without advance notification.

  7. COST OF DELIVERY, TAXES AND OTHER CHARGES.   Buyer shall pay the costs of delivery of the products.  Buyer is responsible for payment of any sales, use, value added, GST, and any other similar taxes or governmental fees associated with Buyer’s order, except for taxes based on Seller’s net income, gross revenue, or employment obligations. Buyer must also pay all freight, insurance, and taxes (including but not limited to import or export duties, sales, use, value add, and excise taxes). If Seller is obligated by applicable law to collect and remit any taxes or fees, then Seller will add the appropriate amount to Buyer’s invoices as a separate line item. If Buyer qualifies for a tax exemption, Buyer must provide Seller with a valid certificate of exemption or other appropriate proof of exemption. If Buyer is required by law to make a withholding or deduction from payment, Buyer will make payments to Seller net of the required withholding or deduction, and will provide to Seller satisfactory evidence (e.g., official withholding tax receipts) that Buyer has accounted to the relevant authority for the sum withheld or deducted. If Buyer does not provide the information within sixty days of remittance to the applicable tax authority, Seller will charge Buyer for the amount that Buyer deducted for the transaction.

  8. TRANSFER OF PROPERTY AND RISK OF LOSS.   Seller retains the right and title to the products sold to Buyer until Seller is paid in full for the products.  Buyer shall obtain the right and title to the products upon payment to Seller of the purchase price and any taxes, excise or other charges.  The right of loss, including, but not limited to the risk of loss, theft, damage or destruction, transfers to Buyer F.O.B. either the Seller’s warehouse or product manufacture, whichever is applicable.  

  9. NO SET-OFF.   Buyer shall have no right of set-off or withholding, and no deduction of any amounts due from Buyer to Seller shall be made without Seller’s prior, express written approval.

  10. PATENTS.   Sellers reserves the right to discontinue deliveries of any products, the manufacture, sale or use of which would, in Seller’s opinion, infringe upon any U.S. patent, trade mark or design now or hereinafter issued, registered, or existing and under which Seller is not licensed.

  11. REPRESENTATIONS & WARRANTIES (R&WS); DISCLAIMERS; LIMITATION OF LIABILITY.

    1. BUYER’S R&Ws. Buyer represents and warrants to Seller as follows: (i) that Buyer has the right to enter any transaction contemplated for hereby without violating these Terms, any applicable law, rule, or regulation, and/or any agreement with, or rights of, any third party; (ii) that Buyer will use the products provided hereunder exactly as authorized and never in any way that would violate any applicable law or third party right of any kind; and (iii) that Buyer is buying the products from the Seller for solely Buyer’s own use, and not for resale and/or export.

    2. MANUFACTURER’S WARRANTY AND SELLER’S DISCLAIMERS. Seller does not manufacture (or direct the manufacture of) any of the products offered in any way. The availability of products does not constitute an affiliation with or endorsement of any of the products or their manufacturer. As such, subject to applicable law, Seller is providing the products to Buyer “AS IS” without express or implied warranties of any kind (including without limitation any: (i) warranty of merchantability; (ii) warranty of fitness for a particular purpose; (iii) warranty of title; or (iv) warranty against infringement of intellectual property rights of a third party, whether express or implied by law, course of dealing, course of performance, usage or trade, or otherwise). They may, however, be covered by the manufacturer’s warranty as detailed in in any product’s description on Seller’s website and included with Seller’s delivery of the products. Buyer can avail itself of any of the manufacturer’s warranties by following the instructions provided in their warranty agreement[s]. PRODUCTS SOLD HEREUNDER ARE SOLD ONLY TO THE SPECIFICATIONS SPECIFICALLY SET FORTH BY THE SELLER IN WRITING.  SELLER’S SOLE OBLIGATION FOR A REMEDY TO BUYER SHALL BE REPAIR OR REPLACEMENT OF NON-CONFORMING PRODUCTS. BUYER ASSUMES ALL RISK WHATSOEVER AS TO THE RESULT OF THE USE OF PRODUCTS PURCHASED, WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS OR SUBSTANCES.  Buyer acknowledges and agrees that under no circumstances shall Seller be liable for any breach of the manufacturer’s warranty claims and/or for any loss or damages that may arise out of the manufacturer’s failure to honor its warranty obligations to Buyer.

    3. LIMITATION OF LIABILITY.   No claim by Buyer of any kind including, but not limited to, claims for indemnification, whether as to quality or amount of product delivered or non-delivery, shall be greater in amount then the purchase price for the products in respect of which damages are claimed.  IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, OR LOSS OF DATA, ARISING OUT OF, OR AS A RESULT OF, THE SALE, DELIVERY, SERVICING, USE OR LOSS OF THE PRODUCTS SOLD HEREUNDER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.

  12. INSPECTION.   Buyer shall inspect the products promptly upon receipt for non-conformity (including but not limited to non-conformity for quantity, quality, and/or defects).  Failure by Buyer to provide Seller with written notice of a claim within 14 days from the date of delivery or, in the case of non-delivery, from the date fixed for delivery, shall constitute a waiver by Buyer of all claims with respect to such products.  

  13. FORCE MAJEURE.   If the manufacture, transfer or receipt by either party of any products covered hereby is prevented, restricted or interfered with by reason of any event beyond the reasonable control of the party so affected, including but not limited to war, weather, strikes, floods, lockouts, fires, acts of God, terrorism, and/or delivery, vendor, supplier, or other third party delays, non-performance, or failures of any kind, such party shall be excused from making or taking deliveries hereunder to the extent of prevention, restriction or interference, and neither party shall be liable to the other for default or delay in performing, except with respect to payment obligations.

  14. SELLER’S RIGHTS.   If Buyer should fail in any manner to fulfill the terms and conditions hereof, Seller may defer further shipments until such default is cured.  Remedies provided herein shall be in addition to, and not in lieu of, other remedies that may be available to Seller.  If for any reason, the quantities of the products covered hereby or of any materials used in the production of the products reasonably available to Seller shall be less than Seller’s total needs for its own use and for sale, Seller may allocate its available supply of products among its existing or prospective purchasers and/or its own departments, divisions and affiliates in such manner Seller deems proper in Seller’s sole discretion, without thereby incurring liability on account of the method of allocation determined or its implementation or for failure to perform this agreement.

  15. GOVERNING LAW / BINDING ARBITRATION.

    1. Governing Law: This Agreement shall be construed, and the respective rights and duties of Buyer and Seller shall be determined, according to the laws of the State of Florida, without giving effect to its principles of conflicts of laws.  The UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. 

    2. Binding Arbitration: Subject to subsection (c) below and all applicable laws, Buyer is agreeing to give up: (i) Seller’s right to litigate any claims that may arise hereunder in court or before a jury; and (ii) Seller’s right to consolidate any claim and/or participate in any class-action claim that may arise hereunder in any manner or forum. Instead, any claim, dispute, or controversy of any kind or nature arising hereunder which cannot be amicably resolved by the parties shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place before a panel of three arbitrators sitting in either Hillsborough or Osceola County, Florida. The language of the arbitration shall be English. The arbitrators will be bound to adjudicate all disputes in accordance with the laws of the State of Florida. The decision of the arbitrators shall be in writing with written findings of fact and shall be final and binding on the parties. Seller shall bear all of its own costs, as well as your reasonable outside attorneys’ fees, actually incurred in connection with any such arbitration proceedings; provided, however, that if Seller is the prevailing party, Seller shall be entitled to reimbursement for those amounts that were expended on Buyer’s behalf. With respect to any arbitration hereunder, as stated above, you hereby expressly waive any right to consolidate any claim and/or participate in any class-action claim of any kind or nature. This Section provides your sole recourse for the settlement of any disputes arising out of, in connection with, or related to these Terms. If any provision of this clause is found unenforceable, such unenforceable provision will be removed and the remaining terms will be enforced.

    3. Small-Claims Option: Notwithstanding the foregoing, either party may elect to pursue a breach of warranty claim in small-claims court rather than submit to binding arbitration, but only if the moving party provides the other party with written notice of its desire to do so within ninety (90) days of Buyer’s purchase transaction. Any small-claims court proceeding initiated hereunder will be limited solely to Buyer’s individual dispute; i.e., Buyer is not permitted to file, or participate in, a class action suit in small-claims court with respect to these Terms.  Any small-claims action brought by either party against the other party arising out of or related to this Agreement shall be brought in a state or federal court of competent jurisdiction located in either Hillsborough or Osceola County, Florida and each party consents to the jurisdiction.

      1. WAIVER OF JURY TRIAL.  BUYER AND SELLER WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY FOR ANY LEGAL PROCEEDING ARISING, DIRECTLY OR INDIRECTLY, OUT OF OR RELATING TO THIS AGREEMENT. BUYER AND SELLER EACH (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; AND (II) ACKNOWLEDGES THAT EACH OF THE PARTIES HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS WAIVER OF JURY TRIAL.

  16. NO ASSIGNMENT.   This contract between Buyer and Seller is not transferable by either party without the prior written consent of the other party, except that Seller may assign this Agreement without Buyer’s consent of the assignment is to a to an affiliate or if the assignment is carried out as part of a merger, restructuring, or reorganization, or sale or transfer of all or substantially all of Seller’s assets. Any assignment without such consent shall be null and void.

  17. COMPLIANCE WITH LAWS; EXPORT LAWS.   Buyer and Seller shall comply with all applicable international, national, state, regional and local laws and regulations with respect to their performance of this Agreement.  Buyer agrees to adhere to all applicable US Export laws and regulations with respect to the products.  

  18. NOTICES. Seller may provide notices hereunder to you by: (i) email; (ii) regular mail; or (iii) posting them on Seller’s website. Buyer shall be responsible for ensuring that you have provided us with your current email and mailing addresses. Buyer can contact Seller at any time by any of the following means: (i) email, at: info@mediatransportsolutions.com; or (ii) personal delivery, overnight courier, or registered or certified mail to: Notices Dept, Media Transport Solutions, 9960 5th St. N, Suite 304 , St. Petersburg, FL33702

  19. SECTION HEADINGS. The paragraph headings are for convenience only and shall not be used in interpreting or construing these Terms.

  20. NO WAIVER.  No waiver by Seller of any of Terms or any breach hereof shall constitute or be deemed to be a waiver of any such term or any such breach in any other case.  No waiver shall be deemed to occur as a result of the failure to enforce any term or condition of these Terms.  If any clause or portion hereof shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining clauses or portions shall remain in full force and effect.   

  21. ENTIRE AGREEMENT. These Terms, along with each order issued hereunder, are the sole and exclusive statement of the parties’ understanding and agreement with respect to the transactions contemplated and the subject matter hereof, notwithstanding any other terms that might be contained in any purchase order or other document received from Buyer or submitted to Seller thereof.

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