TERMS AND CONDITIONS OF SALEEffective as of September 1, 2020
1.1 General terms. These general terms and conditions of sale (these “Terms”) are the only terms that govern the sale to the customer (“Customer”) whose name appears on the invoice ticket (“Invoice”) of all locksmith and security services (“Services”) and the procurement, installation, repair, or maintenance of related equipment (collectively, the “Systems”) by 24/7 Lost Mountain Locksmith & Security Solutions, LLC (“Lost Mountain”), including but not limited to the Services and Systems listed on the Invoice.
1.2 Priority. These Terms and Lost Mountain’s Invoice (Terms and Invoice together being this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Customer’s terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
1.3 Change of Services. Notwithstanding anything to the contrary contained in this Agreement, Lost Mountain may, from time to time change the Services without the consent of Customer, provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the quotation.
2. Delivery of Systems and Performance of Services
2.1 Time of Delivery. The Systems will be delivered within a reasonable time after the receipt of Customer’s order. Multiple orders of Systems may be longer. Lost Mountain will not be liable for any delays, loss or damage in transit.
2.2 Title and Risk of Loss. Title and risk of loss passes to Customer upon delivery of the Systems at the location of the Customer or other delivery point agreed to in writing by the parties (“Delivery Point”).
2.3 Customer’s Acts or Omissions. If Lost Mountain’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Lost Mountain will not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
2.4 Purchase Money Security Interest. As collateral security for the payment of the purchase price of the Systems, Customer hereby grants to Lost Mountain a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Systems, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions, thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. If the payments due by the Customer are not made within the terms established herein, the Customer shall pay the default interest at the highest rate legally allowed.
2.5 Accommodation of Services. With respect to the Services, Customer will (a) cooperate with Lost Mountain in all matters relating to the Services and provide such access to Customer’s vehicles, premises, and such other facilities as may reasonably be requested by Lost Mountain, for the purposes of performing the Services; (b) respond promptly to any Lost Mountain request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Lost Mountain to perform Services in accordance with the requirements of this Agreement; and (c) provide such materials or information as Lost Mountain may reasonably request and ensure that such customer materials or information are complete and accurate in all material respects. In the event that Lost Mountain is unable to access Customer’s vehicle or premises for purposes of the Services during an agreed upon time and date of installation, then Customer shall pay Lost Mountain a $75 fee (the hourly Service Fee) for the expense of Lost Mountain’s time and travel to Customer’s location.
2.6 Recommendations. As part of this Agreement (and subject to the warranty provisions in Section 6) Lost Mountain may provide recommendations and advice to Customer concerning the type of Systems needed and other matters related to the Systems and Services. In giving such recommendations and advice, Lost Mountain relies on Customer’s accurate representations concerning the Customer’s vehicle(s), building(s), facilities, and operations. Customer further acknowledges that, even in the absence of any defects, the performance of the Systems may vary based on external factors outside of Lost Mountain’s knowledge or control, including, without limitation, Customer’s use of the Systems. Lost Mountain will not be responsible for any loss or any defect in the performance of, or caused by, the Systems that resulted from Customer’s inaccurate information, Customer’s actions, or from external factors outside of Lost Mountain’s control.
3. Price & Payment Terms
3.1 Price. Customer will purchase the Systems from Lost Mountain at the price (“Price”) set forth in the Invoice.
3.2 Customer’s Authorization. By placing an order or request with Lost Mountain, the Customer certifies that he or she has the authority to order the Services and/or Systems.
3.3 Time of Payment. Customer will pay Lost Mountain the Price for the Systems and/or Services prior to Lost Mountain providing the Systems and/or Services.
3.4 Interest. Customer will pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer will reimburse Lost Mountain for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Lost Mountain does not waive by the exercise of any rights hereunder), Lost Mountain will be entitled to suspend the delivery of any Systems or performance of any Services if Customer fails to pay any amounts when due hereunder.
3.5 Payment Due if Alternatives Required. In the event any of the Services and/or System recommended by Lost Mountain are not successful in remedying the Customer’s issues, Lost Mountain will recommend other options. However, the Customer remains responsible for the payment of all Services performed and/or all Systems procured for the Customer by Lost Mountain notwithstanding any other provision herein.
3.6 Disputes. Customer will notify Lost Mountain in writing by email (LostMountainLocksmith@gmail.com) within five (5) days of receiving an Invoice if Customer disputes any entry on that invoice or the amount invoiced. In the absence of any such written objections within five (5) days, Customer will be deemed to have accepted and acknowledged the invoice as correct.
3.7 No Withholding. Customer will not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Lost Mountain, whether relating to the Services, Systems, or Lost Mountain’s breach, bankruptcy or otherwise. Retainage of any kind is unacceptable.
4. Inspection and Rejection of Nonconforming Systems
4.1 Inspection Period. Customer will inspect the Systems within 24 hours of installation by Lost Mountain (“Inspection Period”). Customer will be deemed to have accepted the Systems unless it notifies Lost Mountain in writing of any Nonconforming Systems during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Lost Mountain. “Nonconforming Systems” means that the product shipped is different than identified in the Invoice.
4.2 Nonconforming Systems. If Customer timely notifies Lost Mountain of any Nonconforming Systems, Lost Mountain will, in its sole discretion, (a) replace such Nonconforming Systems with conforming Systems, or (b) credit or refund the Price for such Nonconforming Systems, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. If Lost Mountain exercises its option to replace Nonconforming Systems, Lost Mountain will, after receiving Customer’s shipment of Nonconforming Systems, ship to Customer, at Customer’s expense and risk of loss, the replaced Systems to the Delivery Point.
4.3 Remedies. Customer acknowledges and agrees that the remedies set forth in Section 4.2 are Customer’s exclusive remedies for the delivery of Nonconforming Systems. Except as provided under Section 4.2, all sales of Systems to Customer are made on a one-way basis and Customer has no right to return Systems purchased under this Agreement to Lost Mountain.
5. Change Orders
In the event that Customer causes or requests (i) changes to be made which affect delivery, installation, specifications, completion dates or otherwise or (ii) Services or shipment of Systems to be delayed, whether directly or by other contracts or because the facilities, including utilities, electrical hookup, site preparation, governmental permits, approvals or licenses, apparatus, or other conditions to be provided or arranged by Customer are lacking or insufficient, Customer will reimburse Lost Mountain for any expense incurred by Lost Mountain in respect of or resulting from each such change or delay upon presentation by Lost Mountain of a simple invoice. Any additional services or equipment not specifically set forth herein shall be at Customer’s additional expense.
6. Limited Warranty
6.1 Warranty. Lost Mountain warrants that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement
6.2 Disclaimer of Other Warranties. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 6.1, LOST MOUNTAIN MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY, (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) WARRANTY OF TITLE, OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
6.3 Third-Party Products & Installation. Customer acknowledges that Systems are manufactured by a third party and that such Systems may cause secondary issues to Customer’s vehicles and/or facilities not anticipated or known by Lost Mountain. LOST MOUNTAIN MAKES NO REPRESENTATION OR WARRANRY THAT (I) ANY OF THE SERVICES OR SYSTEMS WILL BE ERROR FREE, (II) ANY SPECIFIC RESULTS WILL BE OBTAINED USING THE SERVICES OR SYSTEMS, OR (III) ANY ERRORS OR ISSUES IN OR CAUSED BY THE SYSTEMS THAT ARE THE SUBJECT OF THE SERVICES CAN OR WILL BE CORRECTED. In all such cases Customer remains responsible for payment to Lost Mountain for its Services rendered.
LOST MOUNTAIN IS NOT RESPONSIBLE FOR ANY DEFECTS, DAMAGES, LOST MOUNTAIN MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY SYSTEMS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY, (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
6.4 Breach of Warranties Notice Requirement. Lost Mountain will not be liable for a breach of the warranties set forth in Section 8.1 unless: (a) Customer gives written notice of the defective Systems or Services, as the case may be, reasonably described, to Lost Mountain wifthin forty-eight (48) hours of the time when Customer discovers or ought to have discovered the defect (“Notice Period”); (b) if applicable, Lost Mountain is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 6.1 to examine such Systems and Customer (if requested to do so by Lost Mountain) returns such Systems to Lost Mountain’s place of business at Lost Mountain’s cost for the examination to take place there; and (c) Lost Mountain reasonably verifies Customer’s claim that the Systems or Services are defective.
6.5 Exclusions. Lost Mountain will not be liable for a breach of the warranties set forth in Section 6.1 if: (a) Customer makes any further use of such Systems after giving such notice; (b) the defect arises because Customer failed to follow Lost Mountain’s oral or written instructions as to use or maintenance of the Systems; (c) Customer alters or repairs such System without the prior written consent of Lost Mountain; (d) the defects or other problems in the System and/or Services arose due to inaccurate information provided by Customer to Lost Mountain; or (e) the defects or other problems in the Systems and/or Services arose due to external factors outside of Lost Mountain’s knowledge or control, including, without limitation, Customer’s use of the vehicle or facilities in which Lost Mountain installed the Systems or manufacturing defects in the Systems.
6.6 Repairs and Refunds. Subject to Sections 6.2 through 6.5, with respect to any such Systems during the Warranty Period, Lost Mountain will, in its sole discretion, either: (a) repair or replace such Systems (or the defective part) or (b) credit or refund the price of such Systems at the pro rata contract rate provided that, if Lost Mountain so requests, Customer will, at Lost Mountain’s expense, return such Systems to Lost Mountain. Subject to the limitations in this Section 6 with respect to any Services subject to a claim under the warranty set forth in 6.1, Lost Mountain will, in its sole discretion, (a) repair or re-perform the applicable Services or (b) credit or refund the price of such Services or Systems at the pro rata contract rate.
6.7 Remedies. The remedies set forth in Sections 6.6 are the Customer’s sole and exclusive remedy and Lost Mountain’s entire liability for any breach of the limited warranties set forth in Section 6.1.
7. Limitations of Liability
7.1 Existing Conditions. Lost Mountain is not responsible for existing conditions or defects that existed in the Customer’s vehicle or other property prior to Lost Mountain’s provision of Services and/or Systems or that otherwise were not proximately caused by Lost Mountain.
7.2 Third Party Products. Customer acknowledges that Systems are manufactured by third parties and that such Systems may cause secondary issues to Customer’s vehicles and/or facilities not anticipated or known by Lost Mountain. IN NO EVENT WILL LOST MOUNTAIN BE RESPONSIBLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY DAMAGES OR ERRORS CAUSED BY THE SYSTEMS TO CUSTOMER’S VEHICLES AND/OR FACILITIES.
7.3 Other Limitations. IN NO EVENT SHALL LOST MOUNTAIN BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT LOST MOUNTAIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL LOST MOUNTAIN’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO LOST MOUNTAIN FOR THE GOODS AND SERVICES SOLD HEREUNDER, as reflected in Lost Mountain’S INVOICE AND records.
To the fullest extent permitted by law, Customer shall indemnify, defend and hold harmless Lost Mountain and its officers, directors, shareholders, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees, the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers) resulting from any claim of a third party or Lost Mountain arising out of or occurring in connection with (a) the Systems or Services purchased from Lost Mountain, or (b) Customer’s negligence, willful misconduct or breach of this Agreement. Customer shall not enter into any settlement without Lost Mountain’s or Indemnified Party’s prior written consent. This indemnification provision shall not apply to claims resulting directly from Lost Mountain’s gross negligence or Lost Mountain’s breach of this Agreement.
9. Confidential Information
All non-public, confidential or proprietary information of Lost Mountain, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Lost Mountain to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement, and may not be disclosed or copied unless authorized in advance by Lost Mountain in writing. Upon Lost Mountain’s request, Customer will promptly return all documents and other materials received from Lost Mountain. Lost Mountain will be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
10. Force Majeure
Lost Mountain will not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Lost Mountain including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage.
In the event that at any time Customer is in default under any terms of any order arising out of this Agreement or any other order, Lost Mountain reserves the right to withhold delivery of the Systems or performance of the Services and to cancel and terminate any or all orders and to hold Customer liable for any damages and expenses incurred by Lost Mountain. Lost Mountain also reserves the right to declare all charges and accounts to be immediately due and payable.
12.1 Choice of law; Jurisdiction. This contract and all claims relating to or arising out of this contract shall be governed in accordance with the laws of the U.S. state of Georgia, excluding that state’s choice-of-law principles. All disputes arising out of or in connection with this Agreement will be brought in the courts of Cobb County, Georgia or the U.S. District Court for the Northern District of Georgia, and the Parties consent to the jurisdiction of such courts.
12.2 Assignment. Customer will not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Lost Mountain. Any purported assignment or delegation in violation of this section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
12.3 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement may be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party has authority to contract for or bind the other party in any manner whatsoever.
12.4 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under these Terms.
12.5 Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth on the face of the Invoice or quotation, purchase order, acknowledgment, or to such other address that may be designated by the receiving party in writing. All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), verified email (with confirmation of transmission), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
12.6 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
12.7 Survival. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Limited Warranty, Limitation of Liability, Indemnification, Relationship of the Parties, No Third-Party Beneficiaries, Notices, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction, and Survival.
12.8 Amendment and Waiver. This Agreement may not be modified except in a writing signed by both Parties. No waiver by either Party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by the waiving Party. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
12.9 Clerical Errors. Lost Mountain reserves the right to unilaterally correct clerical, arithmetical, or stenographic errors or omissions in quotations, order acknowledgements, invoices, or other documents.