Terms & Conditions
The following Terms and Conditions (these “Terms and Conditions”), together with all credit applications, estimates & price quotations, custom/special sales orders, and invoices (each a “Sales Document,” and collectively with these “Terms and Conditions,” the “Agreement”) issued by Tombstone City (“TSC”) to the buyer (“Buyer”), govern each sale of products by TSC to Buyer (“Products”).
In the event of a conflict between these Terms and Conditions and a Sales Document, these Terms and Conditions will control, except for terms relating to Product description, quantity, specifications, price, or payment, in which case the applicable Sales Document will control.
Sale of Products; Pricing and Payment Methods
TSC shall sell to Buyer, and Buyer shall purchase from TSC, the Products listed and detailed on the Sales Document, at the prices set forth on the applicable Sales Document (the “Prices”) along with payment terms. Until a Buyer’s order is accepted by TSC, quoted prices are subject to change without notice.
TombstoneCity has a minimum order of $250 net not including freight/shipping & handling.
Purchase Orders must be submitted by email to info@tombstonecity.com or by fax to 631-424-6575. Verbal orders will not be accepted. Once received, TSC will confirm all orders prior processing. Order fulfillment is subject to availability of inventory and may be rejected at TSC’s discretion.
Buyer shall make any and all payments due to TSC upon the terms set forth on the applicable Sales Document in immediately available funds. TSC accepts payment in the form of check, wire transfer/ACH, credit card (MasterCard, Visa). Please note that there is a 4% credit card processing fee.
Special/Custom Orders
TSC may offer modified versions of standard Products or special manufactured Products (“Special/Custom Orders”) within the following parameters: specification approval (i.e. signed drawings) are required prior to the start of production. Special/Custom Orders cannot be canceled or returned once TSC receives production approval.
Special/Custom Orders are subject to a pricing review prior to the acceptance of orders and reorders. Special Order lead times are approximate. Deposit may be required.
Returns
Eligibility for Returns
- Returns will only be accepted within 30 days of item receipt.
- Products must be unused in their original unopened packaging with all accessories.
- Products that have been damaged, altered, or used will not be accepted for return.
- Special/custom orders are not eligible for return.
- Demo/Warehouse Deals items are not eligible for return.
- TSC reserves the right to refuse returns of any merchandise that does not meet the above return conditions in our sole discretion.
To initiate a return, please follow these steps:
- Contact the TSC Customer Support team at 631-385-9452 to request a return and receive an RMA#. (TSC may request photos before an RMA is granted.)
- Provide your invoice number and the reason for the return.
- Once accepted, our customer support team will provide a return authorization (RMA) number and instructions for shipping the product back to us.
- Package the product in its original packaging and include all accessories.
- Ship the package to the address provided by our customer support team. Be sure to ship with all shipping charges prepaid along with the appropriate amount of insurance
- Items that arrive at TombstoneCity’s warehouse damaged will not be eligible for return.
Restocking Fee
A 20% restocking fee will be applied to all returns, excluding defective or damaged products.
Damaged Items
In cases of items arriving damaged, the consignee must supply TombstoneCity with photos of the damaged goods and a copy of the Bill of Lading. The Bill of Lading must be marked accordingly with the word “Damaged”, failure to do so will void any and all potential refunds, replacements or exchanges.
TombstoneCity will file claims with freight companies when needed for damaged items shipped on our freight accounts. On third-party customer accounts or freight collect, it is the consignee’s responsibility to file the claim.
Refunds
Once TSC receives the returned products and verifies that they meet the conditions for return, we will process a refund for the purchase price, minus the 20% restocking fee. Refunds will be credited via check.
Shortages/Errors
If the Buyer receives the wrong item(s), or wrong number of items, the Buyer must contact TSC within 14 days with details on the error(s). TSC may request photos and/or additional documentation at this time. TSC will, at its own discretion, replace the items at no additional cost to the Buyer.
Product Changes
In an effort to constantly improve our Products, TSC reserves the right to make changes in design, specifications, construction, and engineering at any time without notice and without incurring any obligation toward Buyer or any user of the Products. It is the Buyer’s responsibility to verify current dimensions and specifications of all Products before placing an order. TSC recommends that Buyers download the most current Product drawing and/or three-dimensional model from our website (www.tombstonecity.com) to confirm that the products meet your needs and requirements.
Shipping
Products will be delivered on or around the approximate delivery date set forth on the applicable Sales Document. All Products are FOB Shipping Point. TSC shall not be liable for any delays, loss, or damage in transit. TSC will ship Products to the location set forth on the applicable Sales Document (the “Delivery Point”) using TSC’s standard methods and procedures for packaging and shipping, unless otherwise agreed to in writing.
TSC may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for Products shipped as well as any shipping and handling charges whether such shipment is in whole or partial fulfillment of all Products purchased under the applicable Sales Document.
If for any reason the Buyer fails to accept delivery of any Products, or if TSC is unable to deliver Products because the Buyer has not provided proper delivery information, address(es), instructions, shipping account(s), documents, licenses, or authorizations: risk of loss to Products will pass to Buyer; Products will be deemed to have been delivered; TSC, at its option, may store Products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, insurance and/or storage fees); TSC will be compensated by the Buyer for any other associated loss, damage, costs, and expense suffered or incurred by TSC as a result of such delay.
Method of Shipment
Unless specified otherwise by the buyer, TSC will ship all goods prepaid and add the appropriate shipping and handling costs to the invoice.
Limited Warranty
TSC warrants to the Buyer that all Products will be free from flaws in craftsmanship and material(s). Aside from the limited warranty, all TSC products are being sold “as-is,” and TSC makes no warranty whatsoever with respect to products, including any warranty of merchantability or warranty of fitness for a particular purpose, whether express or implied by law, course of dealing, course of performance, usage of trade, or otherwise.
TSC shall not be held liable for any breach of the Limited Warranty unless: Buyer gives written notice of the defect, reasonably described, to TSC within 10 days of the time when Buyer discovers or should have discovered the defect; TSC is given a reasonable opportunity after receiving the notice to examine such Products; Buyer contacts TSC customer service department and obtains a Returned Material Authorization (RMA) number; Buyer returns such Products to TSC’s warehouse, at Buyer’s expense, for examination; and TSC verifies the Buyer’s claim that the Products are defective.
TSC shall, in its sole discretion, either: repair or replace the Products (or the defective part) or credit or refund the price of the Products at a rate proportionately equal to the contract.
The aforementioned remedies set forth are the Buyer’s sole and exclusive remedies and TSC’s entire liability for any/all breaches of the Limited Warranty.
Limited Liability
In no event will TSC’s aggregate liability arising out of or related to products or the agreement, whether arising out of or related to breach of contract, tort (including negligence), or otherwise, exceed the total of the amounts paid to TSC for the products giving rise to the claim.
In no event will TSC be liable for any resulting damages, lost revenues and/or profits, or loss in value, occurring out of or related to any products or the agreement, regardless of whether such damages were foreseeable, whether or not a party was advised of the possibility of such damages, the legal or equitable theory (contract, tort, or otherwise) upon which the claim is based, and the failure of any agreed or other remedy of its essential purpose.
Without limiting the generality of the foregoing, Buyer assumes all risk and liability for the results obtained by the use of TSC products, whether in terms of operating costs, general effectiveness, success, or failure, and regardless of any oral or written statements made by TSC, by way of technical advice or otherwise, related to the use of the products.
Indemnification
Buyer shall indemnify, defend, and hold harmless TSC and its shareholders, officers, directors, officers, employees, agents, suppliers, third-party logistics providers, affiliates, successors, and assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, fees, or expenses of whatever kind, including reasonable attorneys’ fees, and the costs of enforcing any right to indemnification under the Agreement and the cost of pursuing any insurance providers, in any way relating to a claim arising out of or occurring in connection with (a) the Products, (b) Buyer’s negligence or willful misconduct, (c) Buyer’s breach of the Agreement, or (d) Buyer’s infringement or violation of a third party’s intellectual property rights. Buyer shall not enter into any settlement without TSC’s prior written consent.
Insurance
Buyer will at all times maintain sufficient liability insurance with limits in commercially reasonable amounts for death, bodily injury, and property damage. Upon request, Buyer shall provide verification of this insurance coverage by submitting a certificate of insurance to TSC. Buyer’s liability under the Agreement is not limited to the sum insured.
Assignment
Buyer will at all times maintain sufficient liability insurance with limits in commercially reasonable amounts for death, bodily injury, and property damage. Upon request, Buyer shall provide verification of this insurance coverage by submitting a certificate of insurance to TSC. Buyer’s liability under the Agreement is not limited to the sum insured.
Independent Contractor
Both TSC and the Buyer shall both be considered to be independent contractors under this Agreement. The relationship between these two parties will not be interpreted to be that of employer and employee, nor will it constitute a partnership, joint business venture or agency of any kind. Neither party shall have the right to bind the other party to any contract or other commitment outside of this Agreement.
Termination
TSC may terminate the Agreement and any Sales Document with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due; (b) has not otherwise performed or complied with the Agreement, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
Severability
If any term or provision of this Agreement is deemed to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction(s).
Delay
Any delay or failure of TSC to perform its obligations under the Agreement will be excused to the extent that the delay or failure was caused by an event or events outside of TSC’s control (including, but not limited to, trade embargoes, government orders, labor strikes, labor stoppages, labor slowdowns, epidemics, riots, wars, acts of terrorism, explosions, natural disasters, industrial disasters, or other disturbances, and shortage of adequate power or transportation facilities).
Waivers
No waiver by TSC of any of the provisions of the Agreement will be effective unless explicitly set forth in writing and signed by TSC. No waiver by TSC will operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver.
Notices
Any notices under or pursuant to the Agreement will be deemed duly sent when delivered to TSC via e-mail at info@tombstonecity.com and to Buyer at an address previously provided to TSC, in person, by courier, by registered or certified mail, return receipt requested, by FedEx or UPS; OR by email to an address specified in writing by the receiving party (with confirmation of receipt).
Intellectual Property
All intellectual property (“IP”) rights in and related to TSC’s products (and all accompanying information, specifications, models, and drawings), including any duplication, copy, customization, or derivative thereof, shall be and remain vested in TSC (“TSC IP”), and under no circumstances shall the Buyer have any right under or to TSC IP. Buyer shall not use any TSC IP without TSC’s prior written consent.
Tombstone City is a registered trademark of XL Machinery Sales Inc. and is not to be used without our prior written consent.
Entire Agreement; Amendments
The Agreement constitutes the entire agreement between the parties and supersedes all other communications, oral and written, between the parties relating to the subject matter of the Agreement. The Agreement may be amended, modified, or supplemented only by an agreement in writing signed by both parties.
Choice of Law and Forum
The Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida, without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Florida. Any legal suit, action or proceeding arising out of or related to the Agreement, or the matters contemplated under the Agreement, shall be instituted exclusively in the federal court in Fort Pierce, Florida or state courts located in Stuart, Florida, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. Neither the Uniform Law on International Sale of Goods, Uniform Law on Formation of Contracts for International Sale of Goods nor the United Nations Convention on the International Sale of Goods of 1980 (and any amendments or successors thereto) shall apply to the Agreement.