OVERVIEW

BY ACCEPTING THE QUOTE, CUSTOMER HEREBY ACCEPTS THESE TERMS AND CONDITIONS, AND THE QUOTE, TOGETHER WITH THESE TERMS AND CONDITIONS, AND ANY OTHER DOCUMENTS INCORPORATED HEREIN AND THEREIN BY REFERENCE CONSTITUTE THE ENTIRE AGREEMENT BETWEEN CUSTOMER AND BOA BAR LLC.

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1. In order to secure Customer's performance, Customer hereby grants Boa Bar LLC a Security interest ("Security Interest") in all appliances, equipment, fixtures, furnishings, furniture, machinery, tools, inventory, supplies, and all other goods and property sold by Boa Bar LLC to Customer, and all accessions, accessories, additions, parts and replacements (“Goods”). Customer authorizes Boa Bar LLC without need for Customer's signature, to file any financing statements, amendments, addendums, continuation statements and other applicable filings required to perfect or continue the perfection of the Security Interest. Upon request by Boa Bar LLC, Customer shall procure landlord and mortgagee waivers pertaining to the Goods.

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2. Upon payment in full, including all taxes, as applicable, Boa Bar LLC shall assign to Customer any assignable interest Boa Bar LLC may have in any manufacturer warranty or guaranty, WHICH ARE AND SHALL BE CUSTOMER'S SOLE REMEDY APPLICABLE TO THE GOODS. FURTHER, BOA BAR LLC MAKES NO WARRANTIES EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED HEREBY TO THE FULLEST EXTENT ALLOWED BY LAW. BOA BAR LLC SHALL NOT FOR ANY REASON BE LIABLE FOR ANY INDIRECT LOSSES, DAMAGES, FINES, PENALTIES, LOST PROFITS, SPECIAL DAMAGES, AND/OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS FOR DELAYS OF ANY KIND, FOOD SPOILAGE OR BUSINESS INTERRUPTION. TO THE FULLEST EXTENT ALLOWED BY LAW, YOU HEREBY RELEASE AND INDEMNIFY BOA BAR LLC FROM ANY AND ALL SUCH DAMAGES, CLAIMS AND/OR LOSSES, REGARDLESS OF WHETHER THE SAME COULD HAVE BEEN FORESEEN.

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3. TO THE FULLEST EXTENT ALLOWED BY LAW, IN ALL CASES, BOA BAR LLC’S DAMAGES FOR ANY AND ALL CLAIMS ARISING HEREUNDER, OR RELATING HERETO, SHALL NOT EXCEED THE PURCHASE PRICE FOR THE SUBJECT GOODS PAID FOR BY CUSTOMER TO BOA BAR LLC. CUSTOMER HEREBY AGREES THAT ANY SUCH CLAIM MUST BE ASSERTED WITHIN ONE (1) YEAR OF THE DELIVERY OF THE SUBJECT GOODS, BARRING WHICH CUSTOMER HEREBY AGREES TO WAIVE THE RIGHT TO ASSERT ANY SUCH CLAIM, WHETHER FOUNDED IN CONTRACT LAW, TORT, OR ANY OTHER THEORY OF LIABILITY.

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4. THE PARTIES EXPRESSLY HEREBY AGREE THAT THE UNIFORM COMMERCIAL CODE REGARDING THE SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT AND THE GOODS SOLD HEREUNDER; AND INSTEAD, THIS AGREEMENT SHALL GOVERN THE PARTIES OBLIGATIONS.

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5. CUSTOMER ACKNOWLEDGES THAT IT HAS INDEPENDENT LEGAL COUNSEL AND HAS HAD THE OPPORTUNITY TO REVIEW THIS AGREEMENT WITH SAID COUNSEL.

 

6. Customer is responsible for any costs incurred as a result of any non-warranty repairs, alterations, or replacements of any of the Goods made after delivery of the goods and without the approval of the manufacturer or Boa Bar LLC.

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7. Return/Cancellation.

Goods may only be returned by Customer to Boa Bar LLC upon Boa Bar LLC's prior written consent, and Customer is responsible for any loss of or damage to any of the Goods, which occurs during the return. (a) For any Goods that are special‐ordered or manufactured specifically for the Customer, they are not returnable and cannot be canceled without express written consent from Boa Bar LLC. Without limiting the foregoing, custom and special-ordered Goods are not eligible for cancellation or return. Such items include, but are not limited to, furniture, fixtures, hoods, walk‐ins, stainless steel or millwork fabrication. This also includes customized or logoed products, as well as any non‐stock items brought into stock for a specific Customer's use. (b) Returns and cancellations, if approved, will be subject to restocking and return freight charges, which will become part of the balance due. Credits for approved returns will not be issued until the merchandise has been received, inspected, and accepted by the manufacturer. (c) Used items, items not in original packaging, items not in new condition, hazardous items, or flammable liquids are never eligible to be returned.

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8. Scope of Work

(a) Unless otherwise noted, plumbing, electrical, gas, or HVACR connectors, connections, or interconnections are NOT included in our work, nor do we mount accessories that other trades are responsible to install (faucets, hoses, drains, pressure valves, etc.). (b) All existing equipment being reused or equipment supplied by others must be verified by the contractor or owner for accuracy, functionality, proper clearances, connections, and any other requirements. Unless otherwise noted herein, removal & disposal or relocation of existing equipment is not in Boa Bar LLC's scope of work. (c) Unless otherwise noted in the Quote, Boa Bar LLC does not supply dumpsters and is not responsible for any costs associated with trash removal. (d) Boa Bar LLC does not include any structural work to the building. All wall backing, structural supports, supplementary steel, members, beams, wall, ceiling, and roof penetrations, including fire stops and weatherproofing, are to be performed and sealed by others. Additionally, pitch pockets, dunnage, conduit, sleeves, penetrations, and coring for refrigeration and beverage systems are to be provided and performed by others. (e) Unless otherwise noted in the Quote, calibration of equipment is the responsibility of the Customer. Water conditions requiring treatment are the responsibility of the Customer. Customer is encouraged to request Boa Bar LLC's assistance (if needed) to obtain water quality testing to determine if water treatment is needed. (f) Equipment damaged on-site by others, after delivery by Boa Bar LLC, or receipt by Customer, is the sole responsibility of the Customer or the party damaging the equipment, not Boa Bar LLC. (g) All Government Agencies, Labor and Industry, Health and Building Department reviews, inspections, tests, permits, sealed or stamped architectural or engineering drawings, and related scheduling and coordination are the sole responsibility of the Customer. Any and all associated costs or fees are the sole responsibility of the Customer as well. (h) Unless otherwise noted herein, all costs for union, prevailing wage, and overtime will be billed separately if applicable. Labor costs are calculated at non-prevailing and non-union rates unless otherwise stated herein. (i) Boa Bar LLC is not responsible for additional costs or delays associated with or caused by project scope changes or due to local code changes or enforcement by local enforcement agencies or officials.

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9. Delivery

Estimates are based on the manufacturer’s production and shipping schedules available to Boa Bar LLC at the time of this Agreement. Delivery dates are approximate and dependent, in part, upon Boa Bar LLC's timely receipt of: (1) the Customer’s executed Proposal form, (2) the required deposit; (3) any other information reasonably necessary for placing Customer’s order; and (4) Customer’s performance of all acts necessary prior to Customer’s ability to take possession of the Goods. Boa Bar LLC shall not be liable for loss due to delays or cancellations from causes beyond Boa Bar LLC's control. (a) Customer bears the entire risk of loss of and damage to the Goods from the date of delivery to Customer. (b) Boa Bar LLC will exercise every effort to provide a timely delivery of goods, however, Boa Bar LLC cannot commit to specific delivery dates until after a signed contract and required deposits are received. (c) It is understood that the equipment as specified or quoted can be reasonably delivered to designated locations. Boa Bar LLC does not include the removal of any doors, door frames, windows, or window frames to allow access to the installation location. This is the Customer’s responsibility. (d) Boa Bar LLC is not responsible for any damaged or missing items that were not reported at the time of delivery. The Customer is responsible for inspecting the goods at the time of delivery and noting any missing or damaged items on the bill of lading. (e) If items are delivered by anyone besides Boa Bar LLC or its contracted shipper, the Customer and/or receiving party is responsible for any related concealed damage claims and resolution. (f) Unless otherwise noted in the Quote, all items included in the Quote will be drop-shipped (FOB Factory, Freight Allowed), and the Customer will have the sole responsibility to receive, unpack, transfer internally, and install them. (g) Pricing for delivery, uncrating and setting-in-place, leveling, and fastening (as appropriate) if expressly included herein, is based on work being performed during normal working hours, Monday through Friday.

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10. Any of the following events shall constitute an event of default (“Default”): (a) Failure by Customer to pay when due any amount owing to Boa Bar LLC; (b) Failure by Customer to fully and timely perform its obligations; (c) Filing for relief under bankruptcy laws by Customer or a third party; and (d) The existence of any lien, security interest, or encumbrance with respect to the Goods, other than one filed by Boa Bar LLC due to Customer’s failure to pay all sums as and when due.

 

11. If a Default shall have occurred, Boa Bar LLC shall have the right to exercise any one or more of the following remedies: (a) To declare any and all money owed by Customer to Boa Bar LLC to be immediately due and payable, without presentment, demand, or protest of any kind, all of which are hereby expressly waived by Customer; (b) To stop deliveries of Goods or items to Customer; and (c) To pursue any other rights and remedies permitted by law or in equity.

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12. All rights and remedies of Boa Bar LLC are cumulative and may be exercised concurrently or separately. The exercise of any one right or remedy shall not be deemed to be an exclusive election of such right or remedy or to preclude the exercise of any other rights or remedies. No failure on the part of Boa Bar LLC to exercise, and no delay in exercising, any right or remedy hereunder, shall operate as a waiver thereof, nor shall any single or partial exercise by Boa Bar LLC of any right or remedy hereunder preclude any other or future exercise thereof or the exercise of any other right or remedy.

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13. Customer shall pay Boa Bar LLC all costs and expenses, including but not limited to attorney’s fees as prescribed below, incurred by Boa Bar LLC in enforcing this Agreement. If Customer fails to pay when due any amounts owing to Boa Bar LLC, Customer shall incur (i) a service charge of five percent (5%) of the delinquent amount, not to exceed fifty dollars ($50.00), (ii) accrued interest from the due date until the date of payment at the rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is lower, and (iii) attorney’s fees in the amount of twenty percent (20%) of the delinquent amount or five hundred dollars ($500.00), whichever is greater. The exercise of these rights shall not preclude the exercise by Boa Bar LLC of any other rights or remedies available to it.

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14. This Agreement, comprised of the Quote, these Terms and Conditions, and all other documents incorporated by the terms of the Quote and these Terms and Conditions, constitutes the entire understanding between Customer and Boa Bar LLC, and such understanding may not be amended, modified or waived except in writing executed by Customer and Boa Bar LLC.

15. This Agreement is assignable by Boa Bar LLC.  This Agreement is not assignable by Customer without the prior written consent of Boa Bar LLC  This Agreement shall be binding upon, and inure to the benefit of Customer and Boa Bar LLC, and their respective successors and permitted assigns.

16. If any provision of this Agreement is deemed null and void, the remaining provisions shall remain in full force and effect.

17. This Agreement shall be construed in accordance with the laws of the State of Maryland, without giving effect to any choice of law or conflict of law provision or rule. Venue shall be in the state or federal court, as applicable, having jurisdiction over claims arising in Maryland, or such other venue as determined by Boa Bar LLC to best enforce its rights under this Agreement. To the extent legally possible, Customer expressly waives any objections to Boa Bar LLC's choice of venue and waives any arguments based on the inconvenience of the selected venue. THE PARTIES HERETO HEREBY AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY.

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CONTACT INFORMATION

Questions about the Terms of Service should be sent to us at info@boa-bar.com.