GINGALLEY Web Design & Promotions. (“Seller”) accepts your order on the express condition that you (“Buyer”) assent to the terms and conditions below (the “Contract”), and no others. Your acceptance of Seller’s quotation via the placement of a Purchase Order, Down Payment Deposit, or Firm Request to Seller, and/or acceptance of delivered goods or services, shall constitute assent to these terms of Contract. If alternate or additional terms are required, they must be submitted in writing to the Seller in a separate letter. Seller shall not be bound to any alternate or additional terms unless Seller accepts such terms in writing in advance of Buyer’s Purchase Order, Down Payment Deposit, or Firm Request acceptance.

1. PRICES:

Unless otherwise agreed in writing, all prices and charges specified herein are based on U.S. dollars, FOB origin, and are effective only for thirty (30) days from the date of any quotation. The shipment of goods shall be by common carrier, at Buyer’s risk and expense, with the transportation, insurance, and related charges, in addition to the quoted price.  Should the delivery date, or project completion date, be postponed by the Buyer, Seller shall have the right to adjust the price of the undelivered goods and/or services to Seller’s price at the time of delivery.

2. TAXES:

Any sales or use tax which may be imposed on the sale of the goods shall be in addition to the quoted prices and paid by the Buyer. If Buyer is exempt from any taxes, Buyer shall furnish to Seller an appropriate tax exemption certificate in a form acceptable to the taxing authority.

3. PAYMENTS:

a. Unless otherwise agreed by in writing, payment is due prior to completion of the requested Project or delivery of goods. If agreed in advance that payment can be delayed, and the amount owed is less than $500.00, the terms are net thirty (30) days from date of invoice. A service charge of 2.0% per day, not to exceed the maximum rate allowed by law, shall apply to the portion of Buyer’s outstanding balance which is not paid when due. If legal action is taken by Seller, Buyer shall be liable for Seller’s reasonable attorney fees plus other costs of such action.

b. Domain Name Registration is non-refundable and the Terms & Conditions of the registration service shall be also binding to the Buyer.

c. Accounts that become past due in excess of sixty (60) days will have any goods and Projects in process halted. Buyer’s website will be taken down and media files taken offline.

d. In the event that a Buyer pays the Seller with a check that becomes invalid due to Buyer error or insufficient funds, a fee of forty dollars ($40) will be added to the Buyer’s balance owed.

e. GINGALLEY Web Design & Promotions reserves the right to change billing prices as necessary to meet market fluctuations. Projects already in process would not be affected, however subsequent quotations will show any changes that may have occurred.

f. Each Client’s (Buyer’s) Project(s) are unique and require individual attention. GINGALLEY Web Design & Promotions will design a customized plan of action for each Client and provide feedback and support throughout each Project.

4. DELIVERY, RISK OF LOSS AND SHIPMENT:

a. Delivery and performance dates specified herein or otherwise communicated to Buyer are approximate only and are based on conditions at the time Seller accepts Buyer’s Firm Request or Purchase Order. Delivery lead-time is based upon Seller’s backlog and capacity at the time of quotation. The delivery lead-time may need to be adjusted upon order placement due to changes in the schedule, supplier material commits, and national holidays.

b. Delivery shall be complete upon transfer of possession to common carrier, FOB origin whereupon all risk of loss, damage or destruction to the goods shall pass to Buyer.

c. In the absences of specific instructions by Buyer, the carrier will be selected by Seller. In no event shall Seller be liable for any delay in delivery by the carrier, or shall the carrier be deemed an agent of the Seller.

d. Seller reserves the right to make partial shipments when necessary, and to submit invoices for partial shipments.

5. CHANGES AND CANCELATIONS:

a. Firm Requests and Purchase Orders accepted by Seller are not subject to change or cancellation by Buyer after Project work is in progress, except with Seller’s written consent and upon payment of an appropriate charge to cover the cost of time spent or other loss incurred by Seller. Unless otherwise agreed in writing, such charge shall not be less than seventy five percent (75%) of the price of the goods and/or services subject to the change or cancellation.

b. Shall a Buyer wish to cancel a Project, such as a Website, GINGALLEY Web Design & Promotions will provide Buyer with means to transfer ownership of Domain Registration and Hosting Service as required. Sufficient time must be allowed in order to complete the transfer process and charges will be calculated and adjusted in accordance with the last billing cycle for maintenance fees, Hosting, and SEO programs that may be in process.  Additional fees may occur based on the amount of time it takes to transfer materials from Seller to Buyer.

6. WARRANTY:

a. Seller warrants that on the date of completion of Projects by the Seller, they shall be free from defects in workmanship under normal use and service.

b. No warranty extended by Seller shall apply to:

1. Any goods that have been modified or altered by persons other than Seller.

2. Any goods subjected to misuse, neglect, improper installation or accidental damage, or any products manufactured by a third party.

Seller’s exclusive obligation under warranty is, at Seller’s option, to repair or replace the defective goods (FOB Origin) or to refund to Buyer the purchase price paid for the defective goods. Seller shall not reimburse or make any allowance to Buyer for any additional charges incurred by Buyer for replacement or repair of any goods unless such charges are authorized in advance by Seller.

c. The warranty is made on the condition that Buyer gives Seller immediate written notice of any defect (in no event later than 3 days from date of Project completion of delivery of goods), that the Buyer gives Seller access to the goods and Buyer’s relevant records and data, and that Seller’s inspection reveals that Buyer’s claim is valid under the terms of the warranty.

d. No debit memos will be accepted or processed unless parts have been received and evaluated by GINGALLEY Web Design & Promotions.

e. With respect to third party goods, Seller’s only warranty to Buyer is that such goods are free of any rightful claims of their manufacturer. To the extent any warranties extended to Seller by their manufacturer are transferable; Seller shall transfer such warranties to Buyer.

THIS WARRANTY APPLIES TO THE GOODS ONLY AND NOT TO ANY COMBINATION ANY SERVICES OF SELLER. SELLER MAKES NO WARRANTY OTHER THAN THE WARRANTY SET FORTH HEREIN AND, SUCH WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERECHANTABLITIY OR FITNESS FOR A PARTICULAR PURPOSE.

7. COPYRIGHTS:

a. Buyer warrants to Seller that the designs, media, and other input shall be free from any rightful claim of any third party for infringement of an existing Copyright.

b. If such claims arise, Buyer at its own cost shall assist Seller in the conduct of such defense; and, Buyer may allow Seller at Seller’s option, to procure the right for Buyer to continue using the goods, to replace or modify the goods so that they become non-infringing, or to grant Buyer a refund of the purchase price for the goods subject to such claim of infringement.

c. Buyer assumes and shall hold Seller harmless against any Copyright liability for works created to Buyer’s specifications or design, or specially designed by Seller to meet buyer’s requirements.

d. Seller warrants to Buyer that original designs created by GINGALLEY Web Design & Promotions shall be free from any rightful claim of any third party for infringement of an existing Copyright and/or that such rights have been legally purchased or procured for use.

e. Electronic files and the design of Buyer’s Logo, Corporate Identity, Branding and any other Custom Artwork shall remain the property of Seller unless prior agreement has been established in writing; or the Customer Transfer of Copyright Form has been signed by both the Buyer and Seller.  GINGALLEY Web Design & Promotions holds the rights to display such designs as examples of work for portfolio purposes.  A transfer fee may apply.

THE PARAGRAPH ABOVE SETS FORTH SELLER’S ENTIRE LIABILITY WITH RESPECT TO COPYRIGHTS.

8. INDEMNITY:

Seller shall indemnify Buyer from sums which Buyer shall become obligated to pay any third party by reason of Buyer’s liability imposed by law for:

(a) Bodily injury, including death, or

(b) Physical injury to or destruction of tangible property, in either event to the extent directly caused by defects in goods sold by Seller or Seller’s negligence.

However, in the event any claim for which Seller is responsible is caused by the negligence of both Buyer and Seller, Seller shall be responsible for only that portion of the claim equal to the percentage of the total fault for any claims or demands against Buyer for which Seller is responsible hereunder.

9. LIMITATION OF LIABILITY:

Neither Seller, nor its suppliers, shall be liable, whether in contract, warranty, failure of a remedy to achieve its intended or essential purpose, tort (including negligence), strict liability, indemnity or any other legal theory, for loss of use, revenue or profit, or for the costs of capital or for substitute use or performance, or for indirect, special, liquidated, incidental or consequential damages, or for any other loss or cost of similar type, or for claims by Buyer for damages of Buyer’s customers. The Seller’s maximum liability under this contract shall be the Contract price. Buyer and Seller agree that the exclusions and limitations set forth in this section are separate and independent from any other remedies which Buyer may have.

10. FORCE MAJEURE:

If Seller suffers a delay in performance due to any cause beyond Seller’s reasonable control, the time for Seller’s performance shall be extended a period of time equal to the period of delay and its consequences. Seller will give Buyer written notice within a reasonable time after Seller becomes aware of such delay.

11. EXPORT:

The goods may be subject to U.S. government export controls and regulations and export may require a validated export license. Buyer agrees to abide by and assist Seller in complying with and export controls and regulations.

12. CHANGES TO THE GOODS:

Seller reserves the right to change the design, dimension, and specification of the goods when necessary. Provided, however, Seller shall not make any change to goods ordered by the Buyer without the Buyer’s consent if the change impairs the performance or function of the goods.

13. GENERAL:

a. Any drawings, data, designs, software programs or other technical information supplied by Seller to Buyer in connection with the sale of the goods shall remain Seller’s property and be held in confidence by the Buyer. Such information shall not be reproduced or disclosed to others without Seller’s prior written consent.

b. The laws of the state of South Carolina, without regard to conflict of law principles, shall govern the validity, interpretation and enforcement of the Contract. It is expressly agreed to exclude from this Contract the United Nations Convention on Contracts for the International Sale of Goods, 1980 and any successor thereto.

c. Waiver by Seller of any breach of any provision contained herein shall not constitute or be deemed to be a waiver of any other breach or of such provision. No amendment to or modification or alteration of the contract shall be effective against Seller without Seller’s specific written agreement thereto. Buyer shall not assign this Contract or rights under the Contract without Seller’s prior written consent. Disputes arising out of this Contract, not otherwise settled by mutual agreement between the parties, shall be settled by binding arbitration in Myrtle Beach, South Carolina USA pursuant to the Commercial Arbitration Rules of the American Arbitration Association then in effect.

last updated: 8/16/2011