TERMS AND CONDITIONS OF SALE
1. TERMS OF SALE. The sale of furniture (“Goods”) by NDC, Inc dba New Design Concepts (NDC) and its affiliates (“Seller”) is subject to the terms and conditions contained herein (“Agreement”). The terms and conditions contained herein take precedence over any terms and conditions which are proposed by a buyer of goods (“Buyer”) whether contained on a purchase order or otherwise. The terms and conditions contained herein, together with any quotation delivered by Seller to Buyer (the “Quotation”), is the entire contract between the Buyer and Seller and shall supersede any and all other agreements and understandings between the parties with respect to the subject matter hereof.
2. PRICES. Prices shall be as set forth in the Quotation. Prices are stated in United States Dollars and all invoices are due and payable in United States Dollars to AUS at 150 Commercial Court, Alabaster, AL or such other place as designated in writing by the Seller. Price may be increased by an amount equal to the costs plus 15% incurred by Seller in preparing the Project site to be ready for installation as a result of delays or other items not disclosed by the Buyer or any person or entity hired or contracted by Buyer
3. TERMS OF PAYMENT. Terms of payment areas stated on the quotation. Unless otherwise stated in the Quotation, a 50% down payment at the time of signing the order is required with the balance due 21 Days after final delivery or the installation. Buyer agrees to pay interest on overdue invoices at the greater of: (i) one percent (1%) per month or (ii) the highest rate permitted by law.
4. CANCELLATION OR MODIFICATION OF ORDERS. Orders shall not be subject to cancellation or modification by Buyer in whole or in part (a) without Seller’s written consent and (b) payment of a reasonable cancellation charge for applicable costs of purchased materials and engineering costs incurred by Seller. Notwithstanding the foregoing, Buyer may not cancel or modify the order under any circumstances, if special or custom products are ordered from Seller.
5. TITLE. Title to the Goods passes to Buyer at the time the Goods are delivered to Buyer. In the event Seller is contracted to install the furniture, Title shall pass to Buyer upon completion of the installation.
7. DELIVERY. Unless otherwise agreed in writing by the parties, Seller reserves the right to select the mode of transport and the identity of the carrier. Neither Buyer nor any consignee shall have the right to direct any shipment to any destination other than that specified in the bill of lading without Seller’s written consent.
6. INSTALLATION. The site where the Goods will be delivered, assembled, and installed shall be ready to receive the delivery and installation of the Goods according to the delivery and installation schedule set forth in the Quotation (“Installation Schedule”). Buyer understands and agrees the Installation Schedule or any related agreement on the number of working days required to assemble and install the Goods at the Project subject to the Quotation may be modified, altered or changed to reflect the conditions at the Project Site subject to the Quotation. Buyer further understands and agrees that the Installation Schedule, or any related agreement on the number of working days required to assemble and install the Goods at the Project subject to the Quotation and/or the time for substantial completion and/or final completion of this Agreement will be extended for each working day, or any pro-rata portion thereof, that Seller is denied access to the Project site to assemble and install the Goods subject to this Agreement, including, but not limited to: (i) delay, disruption or interference unloading and delivering the Goods, including being denied access to unloading docks or bays, elevators and hoisting equipment; (ii) delay, disruption or interference being provided staging areas for storage and/or assembly of the Goods; (iii) delay, disruption or interference with the completion of predecessor work including ceiling, wall and floor finishes; (iv) delay, disruption or interference caused by trade stacking in areas scheduled for assembly or installation of the Goods; and (v) delay, disruption or interference caused by the lack of a clean site including keeping passageways, elevators, stairways and other general walkways free of waste materials, packaging materials, debris and tripping hazards. Buyer agrees and acknowledges any costs related to a site that is not free and clear and does not meet the conditions above may result in additional fees and change order. Due to the time sensitivity of the installation, buyer agrees any required change orders will be passed to them at cost plus 15% and agrees to pay such fees within 10 days of receipt of the invoice.
7. WARRANTIES. See below
8. LIMITATION OF WARRANTY. Seller assumes no warranty liability with respect to defects in any Goods caused by: (a) Buyer’s improper installation or maintenance of the Goods; (b) repairs to the Goods by anyone other than Seller or its authorized agent; or (c) negligent or other improper use of the Goods. Seller does not make any warranty and assumes no warranty liability for Goods that are not manufactured by Seller. Furniture of another manufacturer purchased by Seller and resold to Buyer will be limited to the warranty (if any) of such manufacturer. No agent, distributor or representative is authorized to make any warranty repair on behalf of Seller or to assume for Seller any other liability in connection with any of Seller’s Goods.
9. INSPECTION/DAMAGE. If the Goods should arrive at Buyer’s destination in a damaged condition or should a shortage exist, the damage or shortage shall be immediately called to the attention of the delivering carrier and Seller, and in case of damaged Goods a joint inspection of the loaded vehicle by representatives of the carrier and Seller shall be arranged. Any loss occasioned by damage in transit will be for Buyer’s account and claims for such loss shall be made solely against the carrier.
10. CREDIT APPROVAL. All shipments to be made hereunder shall at all times be subject to the approval of Seller’s credit department. Seller may invoice Buyer and recover as a separate transaction for each delivery made of Goods without regard to any other delivery. If Buyer is in default under any agreement with Seller, or if, in Seller’s sole judgment, the financial responsibility of Buyer is or becomes unsatisfactory, then Seller may at its option and without prejudice to any of its other remedies (i) defer or decline to make any shipments hereunder except upon receipt of satisfactory security or cash payments in advance, or (ii) terminate any order of Goods placed by Buyer. Buyer shall reimburse Seller for any costs incurred by Seller, including reasonable attorney’s fees, to collect amounts due by Buyer to Seller.
11. FORCE MAJEURE. Seller shall not be liable for failure to perform or delays in performance caused by acts of God; war (declared or undeclared), riot or act of terrorism; fire, explosions or floods; strikes, work stoppages, slow-downs, or other labor difficulties; shortage of vehicles, fuel, power, material or labor; embargo or delay in transportation; accidents; compliance with any order or request by a government agency or official thereof; or any other event or contingency beyond its reasonable control. In the event of the occurrence of any of the foregoing, the time for performance shall be extended for such time as may be reasonably necessary to enable Seller to perform. Seller, may, during any period of shortage due to any of the above contingencies, allocate its available supply of Goods among itself and its customers in such manner as Seller, in its reasonable judgment, deems fair and equitable.
12. CUMULATIVE REMEDIES. The remedies herein reserved by Seller shall be cumulative and in addition to any other legal remedies available to Seller.
13. LIMITATION OF ACTIONS. Notwithstanding any contrary statute of limitations, any cause of action for any alleged breach of this agreement by Seller shall be barred unless commenced by Buyer within one year from the date of shipment.
14. GOVERNING LAW. This Order shall be governed by the laws of the State of Alabama, without regard to its principles of conflicts of law. Buyer and Seller irrevocably consent to the jurisdiction and venue of the state and federal courts located in the County of Shelby in the State of Alabama in connection with the disposition of any controversy or action related to or in any manner arising out of the purchase of Goods by Buyer from Seller. Buyer waives any right to object to such venue and jurisdiction.
15. ASSIGNABILITY. This agreement and the purchase of Goods shall not be assigned in whole or in part by Buyer without the express written consent of Seller.
16. WAIVER. No waiver by Seller or Buyer of any breach of the provisions of this agreement shall be effective unless in writing and signed by the party affected thereby. No such waiver shall be construed as a waiver of any other breach of this Agreement.
17. PARAGRAPH HEADINGS. The paragraph headings contained herein are for reference only and shall not be considered as substantive parts of this Agreement.
18. MISCELLANEOUS. If any provision of this agreement shall be held to be unlawful or unenforceable, the remaining portions of this agreement shall remain in full force and effect. No other agreement or understanding shall modify this Agreement in any way or shall be binding upon Seller unless contained in a writing signed by Seller’s authorized representative.
General Limited Warranty
NDC, Inc dba New Design Concepts (“NDC”) warrants that the Goods, when sold, are new and have a clear title (exclusive of any security interest of NDC) and that the Goods, beginning at the time of sale, are free of defects in materials and workmanship under normal use and service, according to the respective Category, during the applicable Coverage Period, and subject to the limitations, exclusions, disclaimers and remedies contained in this General Limited Warranty.
During the applicable Coverage Period, NDC will repair or replace, at its sole discretion and free of charge, any covered defect. Such repair or replacement is the sole remedy provided by this General Limited Warranty. Any item repaired or replaced under this General Limited Warranty will itself be warrantied only for the remainder of the Coverage Period(s), if any, applicable to the originally purchased Good.
Other Limitations, Exclusions, & Disclaimers
This General Limited Warranty shall not apply to, and such occurrence or circumstances shall not be considered a defect: (1) any damage or failure due to misuse, mistreatment, neglect, alteration, abuse, or accident; (2) normal wear and tear, including without limitation compression and loss of shape of filling materials and surface scratches, dents and dings that occur with normal use; (3) any damage or failure which results from improper use, maintenance, cleaning or care; (4) any damage or failure related to sun exposure; (5) any damage occurring during shipping, handling, transportation or delivery; (6) any damage or failure caused by repairs or attempted repairs not made or authorized by AUS; and (7) any damage or failure caused by incomplete or improper assembly or installation.
The Goods are sold only with such warranty as is expressly provided in this General Limited Warranty, and no other warranties, express or implied, are made. AUS expressly excludes any implied warranty of merchantability or fitness for a particular purpose. This General Limited Warranty does not cover incidental, INDIRECT or consequential damages, and AUS expressly disclaims any responsibility for incidental, INDIRECT or consequential damages arising from or relating to This General Limited Warranty or any breach of this General Limited Warranty. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS OR THE LIMITATION OR EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT FULLY APPLY. THIS WARRANTY GIVES YOU SPECIFIC RIGHTS, AND YOU MAY HAVE OTHER LEGAL RIGHTS WHICH VARY BY STATE.
