Standard Terms and Conditions
All Project Proposals, and all artistic designs and renderings within such proposal(s), are the Confidential Information of Montage Mosaics and may be used exclusively by the named client solely for review in consideration of purchase from Montage Mosaics.
Tile inventories change daily. Every proposal iteration may use different source art and different tile materials. CLIENT IS RESPONSIBLE FOR REVIEWING THEIR LATEST PROPOSAL’S DESIGN AND TILE MATERIALS IN DETAIL BEFORE APPROVING PRODUCTION. Montage Mosaics makes every effort to accurately represent designs before production. Colors on client’s computer screen, and digital and physical renderings on client’s printer, may be different than on Montage Mosaics’ computer screen and printer. If client needs a physical sample, they must request one. Once production starts, no changes can be made.
Production schedules change daily. All lead times are subject to change due to work in progress, orders pending and inventory confirmation. Quoted lead times are only valid for 7 business days. ALL LEAD TIME COMMITMENTS ARE BASED UPON MONTAGE
MOSAICS’ ACTUAL RECEIPT OF YOUR INITIAL PAYMENT.
Montage Mosaics products are sold pursuant to the terms & conditions on this page. By ordering any product, client agrees to be bound by the TERMS AND CONDITIONS as they exist as of the date of order, that the TERMS AND CONDITIONS set forth the exclusive terms governing the sale of Montage Mosaics products, and that no legal terms in your purchase order or other documents shall have any force or effect. The TERMS AND CONDITIONS contain important provisions, including, among others, Limited Warranty, exclusions and limitations on Montage Mosaics’ liability for damages, and restrictions on the remedies that are available to the client.
Client represents, warrants and covenants to Montage Mosaics that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content; (b) to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties; (c) Client shall comply with the terms and conditions of any licensing agreements that govern the use of Third Party Materials; (d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables; and (e) Client shall comply with all the necessary provisions outlined in the Client Responsibilities clause.
1. DEFINITIONS
In these conditions:
“Agreement” means the entire content of this Standard Terms and Conditions document and any supplemental documents designated herein or in the Project Proposal, together with any exhibits, schedules or attachments thereto or hereto.
“Client” means the person, and where applicable, organization ordering the Deliverable(s) or Service(s) pursuant to one or more Project Proposals.
“Client Content” means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverable.
“Deliverable(s)” means the tangible mosaic(s) produced by Montage Mosaics for Client pursuant to this Agreement and may include Preliminary Works and any Final Deliverable(s).
“Delivery” means deliver FOB (Montage Mosaics Headquarters) unless otherwise specified in the applicable Project Proposal.
“Final Deliverable(s)” means the final version of Deliverable provided by Montage Mosaics. In the event Client purchased tiles only, the completion of manufacturing and preparing for shipment of the tiles to the Client is the Final Deliverable. In the event Client purchases tiles and installation, the installation of the tiles is considered the Final Deliverable.
“Invoice” means an itemized statement of money owed for Deliverables or Services under this Agreement.
“Milestone” means a significant event or stage, as outlined in the Project Proposal, used for timeline and Invoice reference in the development of the Deliverable(s) and Service(s).
“Montage Mosaics” means OTT Solutions, LLC, D/B/A Montage Mosaics, of 14825 St Mary Lane #250 Houston, Texas, United States of America.
“Preliminary Works” means all artwork including, but not limited to, concepts, sketches, visual presentations, other alternate or preliminary design and documents or mock-ups developed by Montage Mosaics and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Deliverables.
“Project” means the scope and purpose of the Client’s identified usage of the Deliverables.
“Project Proposal” means the documents used by Montage Mosaics to identify the Deliverable(s) and Service(s) to be provided by Montage Mosaics for the Project which is governed by these Standard Terms & Conditions, except in the event of any inconsistency between the Project Proposal and Standard Terms & Conditions, in which case the terms of the Project Proposal will govern.
“Service(s)” means service(s) as specified in the applicable Project Proposal.
“Third Party Materials” means third party materials which are incorporated into the Final Deliverables, including without limitation licensed photography, design, artwork, tile and other materials.
2. ACCEPTANCE/AGREEMENT
By executing the Project Proposal, submitting a payment for or ordering any product and/or service, Client accepts the terms of this Agreement. This Agreement supersedes all prior offers and other communications and sets forth the entire understanding of the parties with respect to the subject matter hereof. Any waiver or additional or different terms or conditions proposed by either party shall be ineffective unless accepted in writing by both parties. The Deliverables or Final Deliverables prepared by Montage Mosaics shall not be deemed a work for hire as that term is defined under Copyright Law. The client and/or its entities may not reproduce the Deliverables and/or Final Deliverables. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
3. PRICE, PAYMENT SCHEDULE, & PAYMENT TERMS
3.1 Price. Client agrees to pay for the Deliverable(s) and/or Service(s) the price stated in the Project Proposal, or if none is stated, Montage Mosaics’ standard prices in effect at the time of delivery (the “Project Price”).
3.2 Payment.
3.2.1 Purchase of Tiles Only. Montage Mosaics requires Client to pay fifty percent (50%) of the Project Price upon execution of the Project Proposal. Any invoices, shipping notices, bills of ladings and receipts will be provided to Client after receipt by Montage Mosaics. Prior to shipping the tiles, Client shall pay the remaining fifty percent (50%). In addition to the Project Price, Client is responsible for:
a) a 1.5% monthly service charge on all overdue balances;
b) any reasonable and necessary collection costs incurred by Montage Mosaics, including attorney fees and litigation expenses; and
c) the price of additional equipment, services and charges necessary to complete the Project made necessary by incomplete or inaccurate information supplied by the Client, in which case, Montage Mosaics will advise Client in advance of any such additional charges.
3.2.2 Purchase of Tiles and Installation. In addition to Section 3.2.1, Montage Mosaics requires Client to pay fifty percent (50%) of the Project Price relating to the installation of the tiles upon delivery of the tiles to the Project location. Installation progress will be measured by milestones and Client agrees to pay the requested invoiced amount for installation services upon receipt by Client. If Client has delayed in paying the final amount owed for the purchase of the tiles as referenced in Section 3.2.1, then Client understands that the installation services may be delayed and that any timeline provided to Client regarding the installation of the tiles shall be amended to take into consideration the delay in payment by Client. If installation is delayed due to Client’s failure to timely pay, Montage Mosaics makes no representation as to when the installation process may begin subsequent to payment by Client. Rescheduling installation will be agreed upon between Montage Mosaics, Client, and Montage Mosaics’ tile installer. Montage Mosaics may email invoices to Client, at its convenience. Upon Substantial Completion, any remaining balance shall be due. Failure to pay any amount owed when due shall be subject to the following:
a) a 1.5% monthly service charge on all overdue balances;
b) any reasonable and necessary collection costs incurred by Montage Mosaics, including attorney fees and litigation expenses; and
c) the price of additional equipment, services and charges necessary to complete the Project made necessary by incomplete or inaccurate information supplied by the Client, in which case, Montage Mosaics will advise Client in advance of any such additional charges.
3.3 Project Completion & Final Payment.
3.3.1 Purchase of Tiles Only. If Client has elected to purchase tiles, without installation, the Project shall be considered complete and final payment owed to Montage Mosaics prior to shipment of the Deliverables to Client.
3.3.2 Purchase of Tiles and Installation. In addition to final payment for the tiles as shown in Section 3.3.1, if Client has chosen installation of the tiles through Montage Mosaics, final payment for the installation portion of the Project Price shall be due upon Substantial Completion as determined by the tile installer.
4. CHANGES
Client shall have the right at any time to make changes in drawings, designs specifications, manufacture, materials, packaging, time and place of delivery and method of transportation up to the date specified in the Project Proposal, or upon execution of the Project Proposal, whichever occurs first. Any changes thereafter must be approved by Montage Mosaics. Certain changes may require an increase in the cost of the Project Proposal. If a change requested by Client causes the price referenced in the Project Proposal to change, Client and Montage Mosaics will execute a Change Order, specifying the additional amount owed. Montage Mosaics may also include in the Change Order any changes in delivery schedule or expected Deliverable time frames. Any additional amount owed due to the Change Order shall be due to Montage Mosaics at the time the Change Order is executed by both parties. Upon execution of the Change Order by both parties, the Project Proposal will be amended accordingly. Failure to agree to a Change Order as provided by Montage Mosaics shall be considered a dispute within the meaning of the Dispute clause of this contract.
5. CONFIDENTIALITY
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical, business, financial and commercial information and materials of the other party, including without limitation Preliminary Works and the terms (financial and other) of this Agreement (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under this Agreement without obtaining written permission from opposite party to do so, except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
6. PUBLICITY
Client agrees that Montage Mosaics may identify Client as a client and describe, in writing and/or through photography, the Deliverables and Services in any marketing materials, advertisements, and presentations by Montage Mosaics. Client agrees that Montage Mosaics has the right to incorporate, in a tasteful manner, the Montage Mosaics logo tile in the Final Deliverables. Client reserves the right, upon written request, to have its identity remain confidential when Montage Mosaics describes, in writing and/or photography, the Services and the related promotion programs associated with the Client in any of Montage Mosaics’ marketing materials, advertisements, and presentations.
7. TERMINATION
7.1 Termination for Convenience of Client. Client reserves the right to terminate its relationship with Montage Mosaics prior to the Project Proposal being accepted by Client. In the event of such termination, Montage Mosaics shall promptly stop all work hereunder, and shall promptly cause any of its suppliers or subcontractors to cease such work. If Client elects to terminate its relationship with Montage Mosaics after the Project Proposal has been accepted, but before the tiles are manufactured, Montage Mosaics will attempt to prevent the manufacturing of the tiles. If Montage Mosaics is successful in preventing the manufacturing of the Client’s tiles, Client shall only be responsible for a termination charge consisting of ten percent (10%) of the Project Price (related to the tile purchase and not the installation services), plus actual direct costs incurred prior to or resulting from such termination. If Montage Mosaics is unable to prevent the manufacturing of the Client’s tiles, Client shall continue to be responsible for the entire amount of the Project Price related to the purchase of tiles, and not for any installation services requested by Client.
7.2 Termination for Cause. Either party may terminate this order, or any part hereof, for cause in the event of any default by the other party, or if such other party breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach. In the event of termination for cause by either party, non-breaching party shall not be liable to breaching party for any amount, and breaching party shall be liable to non-breaching party for any and all damages sustained by reason of the default that gave rise to the termination.
8. RELATIONSHIP OF PARTIES
8.1 Independent Contractor. Montage Mosaics is an independent contractor, not an employee of Client or any company affiliated with Client. Montage Mosaics shall provide the Deliverables and Services under the general direction of Client, but Montage Mosaics shall determine, in Montage Mosaics’ sole discretion, the manner and means by which the Services are accomplished.
8.2 No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties.
9. CLIENT RESPONSIBILITIES
9.1 Coordination. The Client is responsible for the communication and coordination of any administrative and/or operational decisions with decision-making parties other than Montage Mosaics if they affect the design or production of Deliverables, or provision of Services, including access to the location where the Deliverables will be installed.
9.2 Preparation.
9.2.1 Preparation if Only Tiles Purchased:
a) The Client is responsible for the complete preparation, such as, by way of example, not limitation, the construction, sanding, and flattening, of the surface(s) that is to receive the Final Deliverables.
b) The Client is responsible for bid solicitation and contract negotiation, sourcing, and establishment of final pricing and contract terms directly with vendors necessary for the implementation and/or installation of Final Deliverables.
9.2.2 Preparation if Tiles & Installation Purchased:
a) The Client will communicate with Montage Mosaics, or its representative, to provide access to the Project site in order to assess the working location.
b) The Client will notify Montage Mosaics, or its representative, of any hazardous working conditions at the Project site.
9.3 Documentation/Permitting/Licensing. Unless otherwise specified in the applicable Project Proposal:
a) The Client must provide Montage Mosaics with accurate and complete information, documentation, and materials necessary for Montage Mosaics to complete the Deliverable(s) and Service(s), such as, by way of example, not limitation, site plans, building plans and elevations, utility locations, color/material samples, installation location specifications, and all applicable codes, rules, and regulatory information. Montage Mosaics is not an expert and makes no representations or warranties in connection with compliance with such rules, codes or regulations. The compliance of the Final Deliverables with any such rule, codes or regulations shall be the responsibility of Client. Montage Mosaics shall use commercially reasonable efforts to ensure the suitability and conformance of the Final Deliverables.
b) The Client must arrange for the documentation, permissions, licensing and installation for the Project, Deliverable(s) and Service(s) of all electrical, structural or mechanical (“Engineering”) elements needed to support, house or power Final Deliverables.
c) Final proofreading and written approval of all Project documents including, by way of example, not limitation, artwork, message schedules, Final Deliverables plans and design drawings before their release for fabrication or installation. In the event that Client has approved work containing errors or omissions, such as, by way of example, not limitation, typographic errors or misspellings, Client shall incur the cost of correcting such errors.
9.4 Copyright. All images supplied to Montage Mosaics by Client are the Client’s responsibility as to copyright and permission for reproduction, not the responsibility or liability of Montage Mosaics. When Client provides Montage Mosaics with art, photography, or logo(s), Client is representing that such submitted artwork is in full compliance with the laws governing copyright, trademark, or similar protections. Client agrees to defend, indemnify, and hold Montage Mosaics harmless from any liability or claims for damages including all costs, and/or expenses of the same, including reasonable attorney’s fees and court costs arising from misuse of such artwork provided by Client.
9.5 Indemnification. The Client agrees to indemnify, save and hold harmless Montage Mosaics from any and all liabilities associated with the installation and documentation required for installation, such as, by way of example, not limitation, permitting, installer claims, and Client’s agents’ claims and/or their materials’ defects.
9.6 Implementation. Client expressly acknowledges and agrees that all estimates provided in the Project Proposal are for planning purposes only. Such estimates represent the best judgment of Montage Mosaics or its consultants at the time of the Project Proposal, but shall not be considered a representation or guarantee that Project bids or costs will not vary. Client shall contract and pay those parties directly responsible for implementation services such as fabrication or installation (“Implementation”). Montage Mosaics shall not be responsible for the quality or timeliness of the third-party Implementation services, irrespective of whether Montage Mosaics assists or advises Client in evaluating, selecting or monitoring the provider of such services.
10. WARRANTY
10.1 By Montage Mosaics – Goods & Services. Montage Mosaics warrants that the Deliverable(s) furnished under this agreement shall materially conform to the Project Proposal and will be free from defects in material or workmanship. Montage Mosaics agrees to replace or correct defects of any Deliverable(s) or Service(s) not conforming to the foregoing warranty promptly without expense to Client when notified of such nonconformance by Client. Notification shall be in writing and include photographic documentation of defects, and final determination made solely by Montage Mosaics. Client should preview their mosaic upon arrival to the worksite, and make any claims before installation commences. Any possible labor and materials for reinstalling replacement mosaic are not included in this warranty. No claims with respect to color or shade variation will be accepted after installation.
10.2 By Montage Mosaics – Montage Mosaics Agents. Montage Mosaics further represents, warrants and covenants to Client that all Manufactures’ warranties of materials and/or products used to create the Final Deliverables extend to the Client upon delivery of the Final Deliverables.
10.3 Unintended Use. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Project Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Montage Mosaics shall be void.
10.4 Disclaimer of Warranties. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, MONTAGE MOSAICS MAKES NO WARRANTIES WHATSOEVER. MONTAGE MOSAICS EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS. CLIENT ASSUMES ALL RISKS WHATSOEVER THAT MAY ARISE AS A RESULT OF THE USE OF A MONTAGE MOSAICS PRODUCT.
10.5 Limitation of Liability. In no event shall Montage Mosaics, Montage Mosaics’ affiliates, or Montage Mosaics or its affiliates’ respective contributors, employees, directors, officers, consultants, agents, or other persons related to or engaged by Montage Mosaics (collectively the “Montage Mosaics Persons”), Montage Mosaics’ licensors, or Montage Mosaics’ suppliers, be liable for any damages (including, without limitation, special, indirect, incidental or consequential damages, personal injury/wrongful death, lost profits, or damages resulting from business interruption) resulting from this Agreement, whether based on warranty, contract, tort, or any other legal theory, and whether or not the Montage Mosaics Persons, Montage Mosaics’ licensors or Montage Mosaics’ suppliers are advised of the possibility of such damages. The Montage Mosaics Persons, Montage Mosaics’ licensors or Montage Mosaics’ suppliers shall be liable only to the extent of actual damages incurred by you, not to exceed the Project Price. The remedies under this Agreement are exclusive and are limited to those expressly provided for in this Agreement.
10.6 Warranties by Client. Client represents, warrants and covenants to Montage Mosaics that:
a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content;
b) to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties;
c) Client shall comply with the terms and conditions of any licensing agreements that govern the use of Third Party Materials;
d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables; and
e) Client shall comply with all the necessary provisions outlined in the Client Responsibilities clause.
10.7 Limitation of Warranties by Montage Mosaics. No warranty provided herein by Montage Mosaics shall be effective without independent documentation that substrate preparation and complete installation was in accordance with current recommendations of the Tile Council of North America. Methods of installation are beyond Montage Mosaics’ control and Montage Mosaics does not accept responsibility for chipping, crazing, spalling, cracking, etching, discoloration, or loosening from the setting bed.
11. DELIVERY/SHIPPING POLICIES/DAMAGES
11.1 Transfer of Ownership All Final Deliverables will be suitably boxed, wrapped, or crated so as to be protected against hazards of shipment, storage and exposure. Terms are F.O.B. Montage Mosaics’ nearest located office. Title and risk of loss or damage to each of the Products will pass to the Purchaser when delivery is made to the carrier.
11.2 Damages. It is Client’s responsibility to note any damage to packaging, contents, or missing pieces before signing for the shipment, or notify carrier within 24 hours to initiate a claim. Breakage, loss in transit, delays in delivery, and any other claims that are beyond Montage Mosaics’ control, must be made to the carrier. The shipment will include instructions for handling damage claims. Loss or damage must be reported to Montage Mosaics within ten (10) days.
12. INDEMNIFICATION
12.1 By Client. Client agrees to indemnify, save and hold harmless Montage Mosaics from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Client shall promptly notify Montage Mosaics in writing of any claim or suit. Client shall have control of the defense and all related settlement negotiations; and Montage Mosaics shall provide Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Montage Mosaics in providing such assistance.
12.2 By Montage Mosaics. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Montage Mosaics agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Montage Mosaics’ representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of negligence or misconduct of Client; provided, that Client promptly notifies Montage Mosaics in writing of the claim. Montage Mosaics shall have control of the defense and all related settlement negotiations; and Client shall provide Montage Mosaics with the assistance, information and authority necessary to perform Montage Mosaics’ obligations under this section. Notwithstanding the foregoing, Montage Mosaics shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Montage Mosaics.
13. FORCE MAJEURE
Each party shall not be deemed in breach of this Agreement if said party is unable to complete the Services or obligation outlined in this Agreement, or any portion thereof, by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of said party or any local, state, federal, national or international law, governmental order or regulation or any other event beyond said party’s control (collectively, “Force Majeure Event”).
14. DISPUTES/GOVERNING LAW/JURISDICTION/VENUE
The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the laws of the State of Texas, without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association in Houston, Texas. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all circumstances, the parties specifically consent to the local, state and federal courts located in the State of Texas. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Montage Mosaics will have no adequate remedy at law in the event Client uses the Deliverables in any way not permitted hereunder, and hereby agrees that Montage Mosaics shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
15. MODIFICATION/INTEGRATION
Both parties must agree to any change, addition or modification to this Agreement in writing. Furthermore, this Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement.
These standard terms and conditions are effective: January 1, 2019