The following terms and conditions (the “Terms”) shall apply to all sales of products or services rendered by The Grand Tour LLC (“GRAND TOUR”) (or others at the direction from or on behalf of GRAND TOUR) to a Customer and/or any and all principals and agents of a Customer (collectively “Customer”) in whatever manner or form Customer is identified in a purchase order, invoice, agreement, contract, or other document evidencing a sale or transfer of products or services to a Customer (each, an “Order”).
ACCEPTANCE OF ORDER
Any Order submitted by Customer, whether or not GRAND TOUR’s standard form of agreement is used, shall be deemed to be an irrevocable offer by Customer to purchase the products and/or services described in such Order, and Customer’s offer will not be accepted by GRAND TOUR unless and until an acceptance letter is sent to Customer by an authorized representative of GRAND TOUR. GRAND TOUR’s acceptance of Customer’s Order, and all terms and prices contained in such Order, will be subject to these Terms, together with any final written proposal provided by GRAND TOUR which shall be deemed incorporated into these Terms. Any other additions to or modifications of these Terms shall not be effective unless expressly accepted by GRAND TOUR in writing.
NO RETURN POLICY AND FINAL SALE
Customer understands that all sales are “final.” This means all sales are final and may not be revoked, canceled, or returned by Customer, unless Grand Tour expressly agrees in advance in writing to the contrary.
TAXES & SHIPPING COSTS
Customer shall be liable for and shall pay all applicable taxes and all such costs applicable to the sale, shipment, storage, and/or delivery in connection with any such Order.
PAYMENT TERMS; DEFAULT
Payment by Customer shall be made pursuant to the terms set forth on each invoice. Interest shall accrue and be payable upon GRAND TOUR’s demand on amounts not paid by Customer when due, at the lower of: (1) one percent (1%) per month, or (2) the highest rate of interest then permitted by applicable law. To secure payment of all amounts due GRAND TOUR hereunder, and pursuant to any Order, Customer hereby grants GRAND TOUR a security interest in and to all products, parts, accessories and materials which may be sold and/or furnished to Customer, and in all proceeds of the foregoing.
If Customer fails to make all payments to GRAND TOUR in accordance with these Terms or the terms of any acceptance letter or Purchaser Order, or if Customer otherwise breaches these Terms or the terms of any Order or if GRAND TOUR otherwise deems itself insecure, GRAND TOUR may require full or partial payment in advance of all sums due and to become due in connection with any such Order, whereupon Customer shall be obligated to make such payment to GRAND TOUR as demanded. Upon the occurrence of any such default or breach, or upon GRAND TOUR’s demand for payment as provided herein, GRAND TOUR shall be entitled, in addition to the foregoing, at its sole option, to: (1) cancel any and all Orders then outstanding from Customer which have not been fully performed, (2) declare, at its option, immediately due and payable all unpaid amounts for any and all GRAND TOUR products and/or services previously shipped, delivered or furnished to Customer, (3) cease and be relieved of any further obligation of performance under any or all Orders between GRAND TOUR and Customer, (4) exercise and enforce all of the rights, remedies and powers of a secured party under the Uniform Commercial Code as then in effect in the State of Florida, and (5) demand and receive from Customer a cancellation charge of twenty percent (20%) of the purchase price for non-recoverable expenses sustained by GRAND TOUR.
TITLE AND DELIVERY
“Third Party Carrier” means _______________________, who will be responsible for shipping to the Delivery Point and/or storage of the products, if applicable. Customer understands and agrees the Third Party Carrier is not an agent of Grand Tour, and is not affiliated with Grand Tour. Grand Tour will, however, contact Third Party Carrier to arrange for delivery of the Products (at Customer’s expense) in accordance with Customer’s written instructions, to the following address:_______________________________________(the “Delivery Point”). Title to the goods to which the Terms relate shall pass after delivery of the goods to the Delivery Point. If the products require storage prior to delivery to the Delivery Point, then Customer agrees to pay all storage and moving costs. The risk of loss from any casualty to the goods, regardless of the cause or location, shall be on Customer. Customer shall immediately notify Grand Tour of any known or anticipated delays in shipment and the estimated duration of any delays so that Grand Tour may quickly relay this information to the Third-Party Carrier. GRAND TOUR SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGES OR EXPENSE, INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL OR INCIDENTAL DAMAGES, LOSS OF PROFITS OR REVENUES, LOSS OF USE, OR OTHERWISE, WHATSOEVER INCURRED OR SUFFERED BY CUSTOMER. Without limiting the generality of the foregoing, GRAND TOUR shall not be responsible for any such delay, damages, expenses, or losses caused by other suppliers or other manufacturers of products or portions thereof, acts of God, acts of terrorism, action by any governmental authority (whether valid or invalid), compliance in good faith with any applicable foreign or domestic governmental or trade regulations or orders (whether or not any such regulation or order proves to be invalid or unenforceable to any extent), restrictive treaties, embargos, involuntary seizures in transit, fires, riots, sabotage, labor disputes, inability to obtain power, material, equipment or transportation, natural disasters, severe weather, or any other cause beyond the reasonable control of GRAND TOUR. To the extent that any cause beyond the reasonable control of GRAND TOUR results in an actual delay in deliveries or the performance of services on the part of GRAND TOUR as herein provided, the time for performance by GRAND TOUR shall be extended for a period of time at least equal to the period of delay plus a reasonable period of time thereafter in order to permit GRAND TOUR to take steps which GRAND TOUR deems to be necessary or appropriate to complete performance.
Customer acknowledges and agrees that GRAND TOUR is not the manufacturer or designer of the products. GRAND TOUR reserves the right to modify any and all specifications of products distributed or recommended by GRAND TOUR in connection with any sale of products by GRAND TOUR hereunder. Customer acknowledges that handmade items are subject to imperfections and that such imperfections will not be a cause for rejection of a product.
Unless GRAND TOUR agrees in writing to the contrary, all products are deemed accepted upon delivery to the Delivery Point, regardless of whether Customer actually signs for the delivery. Customer understands and agrees Grand Tour does not have a return policy, and Customer hereby waives any such claim. Therefore, Customer has no right to cancel the transaction if the product is not to Customer’s satisfaction or if Customer otherwise changes his or her mind. Customer understands and agrees that even if Customer claims to reject a product, Customer is still required to complete its purchase of all other products pursuant to any and all Orders between Customer and GRAND TOUR, strictly in accordance with the terms and conditions thereof.
“AS-IS” AND NO WARRANTIES
Customer represents, warrants, and understands the Customer is purchasing products or merchandise “as is.” GRAND TOUR MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. GRAND TOUR MAKES NO WARRANTY OR REPRESENTATION ABOUT THE PERFORMANCE ABILITY OF THE PRODUCTS, ABOUT ITS PRESENT STATE OF REPAIR, ABOUT THE SUITABILITY OR GENUINENESS OF PRODUCTS SUPPLIED PURSUANT TO ANY ORDER, CONDITION OR MAINTENANCE, OR ABOUT ITS APPEARANCE OR ABILITY TO FUNCTION IN ANY RESPECT. GRAND TOUR MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO ANY SERVICES PERFORMED BY GRAND TOUR OR ITS AGENTS OR ANYONE ON ITS BEHALF PURSUANT TO ANY ORDER. GRAND TOUR HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS OR IN CONNECTION WITH ANY ORDER.
GRAND TOUR does not authorize any person or entity (including, without limitation, GRAND TOUR agents and employees) to make any representations (verbal or written) contrary to the terms of this limited warranty or its exclusions. Such terms of this limited warranty and its exclusions can only be effectively modified in writing by GRAND TOUR.
In making and in execution of any Order, Customer has not relied upon or been induced by any statements or representations, other than those expressly set forth herein, of any person in respect of the title to or the physical condition of any products, or any other matter affecting the products that might be pertinent in considering the purchase of the products.
LIMITATION OF LIABILITY
CUSTOMER KNOWINGLY WAIVES AND RELEASES CLAIMS FOR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE BREACH OF THIS AGREEMENT, AN ORDER, OR PURCHASE OF PRODUCTS. IN NO EVENT SHALL GRAND TOUR BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER PURSUANT TO CONTRACT, IN TORT, OR BASED UPON NEGLIGENCE OR STRICT LIABILITY, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR REVENUE, LOSS OF USE OF THE PRODUCT USED BY CUSTOMER IN CONNECTION THEREWITH, COSTS OF SUBSTITUTION OR REPLACEMENT OF THE PRODUCT, OR OTHER DAMAGES SUFFERED BY CUSTOMER. NO ACTION OR PROCEEDING SHALL BE FILED OR COMMENCED BY CUSTOMER AGAINST GRAND TOUR FOR ANY BREACH OF ANY ORDER OR THESE TERMS LATER THAN ONE (1) YEAR AFTER THE ACCRUAL OF ANY SUCH CAUSE OF ACTION HEREIN STATED IN FAVOR OF CUSTOMER AGAINST GRAND TOUR.
LIMITATION OF LIABILITY
Customer shall indemnify, defend and hold harmless GRAND TOUR, including its members, managers, employees, affiliates and agents, from and against any and all civil and governmental claims, suits, losses, damages, fines, costs and expenses, including attorneys' fees and costs, to the extent resulting from or arising out of any negligence or willful misconduct by Customer in connection with the transactions contemplated pursuant to these Terms or any Order.
REMEDIES AND DAMAGES
In the event judgment is entered against GRAND TOUR by any court of competent jurisdiction holding that GRAND TOUR is in breach of any of its obligations pursuant to any Order subject to these Terms, and such judgment has become final, GRAND TOUR’s sole and exclusive maximum liability, and Customer’s sole and exclusive remedy against GRAND TOUR, whether based on contract, tort, or otherwise, shall not in any event exceed the purchase price for the particular products which are the subject of any such claim by Customer against GRAND TOUR and which are the subject of such judgment.
APPLICABLE LAW/CONSENT TO JURISDICTION AND VENUE
These Terms will be deemed to be a contract made under the laws of the State of Florida, and will be construed in accordance with the laws of Florida without regard to principles of conflicts of law. Customer agrees that exclusive venue for any litigation, arbitration, action or proceeding arising from or relating to the Terms, any Order, or product purchased by Customer shall lie in Palm Beach County, Florida. The parties specifically waive the right to a jury trial in connection with any dispute arising out of Terms, or between the parties for any reason.
PRE-SUIT MEDIATION AND ARBITRATION
If a dispute arises out of or relates to the Terms, or the alleged breach thereof, any Order, or product purchased by Customer, and if the dispute is not settled through informal negotiation within ten (10) days, Customer agrees first to try in good faith to settle the dispute by mediation in West Palm Beach, Florida before resorting to arbitration. The process shall be confidential based on terms acceptable to the mediator and/or mediation service provider. Customer agrees that any dispute relating to or arising from the Terms, or the alleged breach thereof, any Order, or product purchased by Customer, which the Parties are unable to resolve between themselves, shall be solely and finally settled by arbitration. The Parties shall mutually select a single arbitrator who shall conduct the arbitration and shall resolve the dispute in accordance with the rules of the American Arbitration Association. If, for any reason, the Parties are unable to agree upon an arbitrator, then either Party, after having given notice to the other Party, may apply to the American Arbitration Association for the appointment of an arbitrator. The arbitrator’s decision shall be in writing and shall set forth the basis for his or her decision. The Parties agree to abide by the decision of the arbitrator and further agree that the arbitrator’s fees and any related expenses of arbitration shall be divided equally.
Any failure of GRAND TOUR to enforce at any time any of the provisions, rights or remedies of any Order or these Terms, to exercise any election or option provided therein or herein, or to require at any time performance of any of the provisions thereof or hereof, shall in no way be construed to be a waiver of such provisions, rights or remedies, nor in any way construed to affect the validity or enforceability of such Order or these Terms, or any part thereof or hereof, or the right thereafter to enforce each and every such provisions, right or remedy. No evidence of any waiver or modification shall be offered or received in evidence in any proceeding or litigation between the Parties arising out of or affecting the Terms or any Order, or the rights or obligations of the Parties hereunder, unless such waiver or modification is in writing and signed by GRAND TOUR.
CUSTOMER REQUESTED PRODUCT CHANGES
Charges for changes requested by Customer which results in an increased cost to GRAND TOUR will be quoted to and paid by Customer. Such changes will be implemented only upon GRAND TOUR’s receipt of a new or amended Order from Customer, acceptance of which by GRAND TOUR will constitute Customer’s agreement to pay all such additional charges quoted to Customer by GRAND TOUR, and Customer shall be solely responsible and liable for all consequences which may result from such changes, including, without limitation, delays in completing delivery.
All notices and demands of any kind which either party may be required or may desire to serve upon the other party under any Order or these Terms shall be in writing and shall be served by personal service, overnight express courier or by mail at the address of the receiving party as designated in the applicable Order which is the subject of such notice or demand, or as otherwise designated in any notice of a change of address of the receiving party delivered to the sending party in the same manner. All notices or demands by mail shall be by certified or registered mail, return receipt requested, and shall be deemed complete in ten (10) days after mailing. All notices or demands by overnight express courier shall be deemed complete on the business day immediately following the day on which it was deposited in a regularly maintained receptacle for the deposit of overnight express mail.
505 South Flagler Drive, Ste 900
West Palm Beach, Florida 33401
Attn: Caroline Rafferty
In the event that any of the provisions of any Order or these Terms shall be held by a court or competent jurisdiction to be invalid or unenforceable, the remaining portions of such Order and these Terms shall remain in full force and effect.
CANCELLATION BY GRAND TOUR
Upon termination or cancellation of an Order between GRAND TOUR and Customer, unless GRAND TOUR and Customer agree in writing to the contrary, Customer shall immediately pay to GRAND TOUR the following amounts: (1) the full price applicable to the products or services for Order(s) which have been accepted by GRAND TOUR and which are cancelled by Customer, (2) the Order price for all items or services which have been completed in accordance with such Order and not previously paid for by Customer, and (3) the actual costs incurred by GRAND TOUR, plus a reasonable profit to GRAND TOUR, not to exceed the aggregate purchase price specified by GRAND TOUR in furnishing the products or services under such Order.
Each shipment received by Customer shall be deemed to be only upon the terms and conditions contained in these Terms. These Terms and any final Orders expressly accepted by GRAND TOUR and which supplement these Terms constitute the entire agreement between the parties relating to the sale of the products and supersede all previous communications, representations or agreements, either oral or written, with respect to the subject matter hereof. In making and in execution of this document, Customer has not relied upon or been induced by any statements or representations, other than those expressly set forth in these Terms, of any person in respect of the title to or the physical condition of the products purchased by Customer, or any other matter affecting the products or any Order that might be pertinent in considering the purchase of the products or any Order. In the event of a conflict or inconsistency between the provisions of these Terms and any Order, the provisions of these Terms shall govern. No representations or statements of any kind made by any representatives of GRAND TOUR, which are not stated herein, shall be binding on GRAND TOUR. No addition to or modification of any provision to these Terms shall be binding on GRAND TOUR unless made in writing and signed by an authorized representative of GRAND TOUR. No course of dealing or usage of trade or course of performance shall be relevant to explain, supplement, or determine the meaning of any term or provision expressed in any Order or these Terms. Each shipment received by Customer shall be deemed to be only upon the terms and conditions contained in the Terms herein, except as they may be added to, modified, superseded, or otherwise altered by writing signed by GRAND TOUR.
RELATIONSHIP OF PARTIES AND NO THIRD PARTY BENEFICIARIES
Nothing herein shall be construed to create a principal-agent, partnership or a joint venture relationship between Grand Tour and Third Party Carrier or any third party manufacturer. These Terms shall be binding upon and inure solely to the benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever for any specified period, under or by reason of these Terms.
SUCCESSORS AND ASSIGNS
Orders and these Terms shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns; provided, however, that Customer shall not transfer, sell, assign, pledge or encumber any of its rights, interests, or obligations thereunder or hereunder without the prior written consent of GRAND TOUR.