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Section 1.
Agreement; Acceptance Agreement.
1.1
Agreement.
Seller agrees to provide the products (“Products”) specified in the
Acknowledgement (“Acknowledgement”) in accordance with the terms of the
Acknowledgement and these Terms and Conditions.
1.2
Order and Acknowledgement Acceptance.
The issuing of an Acknowledgement (including any amendments or
schedule(s) or exhibit(s) attached thereto) indicates acceptance of
Customer’s order of the Products specified therein by an authorized
representative of Seller. If Customer agrees with the Acknowledgement
as issued by Seller, Customer must sign the Acknowledgement and return
it promptly to Seller within thirty (30) days from the date thereof.
1.3
Changes.
Customer may not make any changes to the Products, materials,
quantities, packing, lead time, place of delivery or method of
transportation set forth in the Acknowledgement after it has been issued
by Seller and signed by Customer and returned to Seller.
Notwithstanding anything contained in these Terms and Conditions to the
contrary, Customer may request to change the place of delivery or method
of transportation as long as such change (a) does not change the price
set forth in the Acknowledgment and (b) is prior to material moving into
production of the Product. If a Customer requests that a change to the
Products, materials, quantities, packing, lead time, place of delivery
and method of transportation be made after the Acknowledgement has been
signed by Customer and returned to Seller, then Customer must request
and receive a new quotation from Seller for the change to the Products,
materials, quantities, packing, lead time, place of delivery or method
of transportation. A revised Acknowledgement will be issued to Customer
by Seller, in Seller’s sole discretion, to reflect such requested
change(s) that must be signed by Customer and returned to Seller, and
upon receipt by Seller of such revised Acknowledgement, the terms as
finally determined by Seller and Customer shall be used in lieu of the
initial Acknowledgement. Each executed and approved revised
Acknowledgement shall be referred to as an “Approved Revised
Acknowledgement.” Each Approved Revised Acknowledgement: (i) shall be
deemed an amendment to any Acknowledgement; (ii) shall be subject to
these Terms and Conditions; and (iii) these Terms and Conditions shall
be hereby modified to cause any references to “Acknowledgement” herein
to be deemed to refer to the “Approved Revised Acknowledgement.”
1.4
Suitable Products.
Customer is solely responsible for determining the suitability of
Seller’s Products for their application in Customer’s business,
including, without limitation, the finished Product being available
within the Customer’s time frame, requesting and receiving necessary and
appropriate material samples, an adhesive bond test before any Product
is installed by Customer, and a finish test before any Product is
sealed, decorated or finished by Customer.
Section 2.
Purchase Price, Deposit; Invoices.
2.1
Purchase Price.
Seller will furnish the Products in accordance with the prices and
delivery schedule stated in the Acknowledgement. The prices set forth
on the original quotation (“Quotation”) and Acknowledgement shall be
governed by these Terms and Conditions, and shall include the cost of
labor, material, packing, crating, transportation, bank fees, if any,
and all applicable local, state and federal taxes, including, sales,
use, excise or other effective taxes, if any, imposed by the applicable
taxing authority. All prices referenced in the [Quotation]
and [Acknowledgement] shall remain in effect until thirty
(30) days after the date thereof, and thereafter, shall be subject to
change at any time by Seller; provided, however, all
published prices by Seller may change at any time and without notice to
Customer.
2.2
Deposit.
Contemporaneously with the execution of the Acknowledgement by Customer
for the purchase of the Products specified therein, and prior to
commencing any labor or production costs or incurring any other costs
associated with the Acknowledgment, Seller requires that Customer
deliver to Seller a non-refundable cash deposit, the amount of which
will be indicated in the Acknowledgement, in lawful U.S. currency.
2.3
Prepayments.
In Seller’s sole discretion, a progress payment schedule will be
included in the Acknowledgement. Proforma invoices will be issued by
Seller upon request by Customer. The progress payment or the proforma
invoice (as the case may be) shall be paid promptly to Seller by
Customer to avoid any production or shipping delays of the Products.
Progress payments and proforma invoices are due on the date indicated
therein and shall be payable by Customer to Seller in lawful U.S.
currency.
2.4
Invoices. A
final invoice will be issued on the date of shipment of the Products to
Customer (the “Final Invoice”) and shall be payable to Seller in lawful
U.S. currency. Customer agrees and acknowledges that any amounts
indicated in the Final Invoice not paid within net thirty (30) days
after the date of such Final Invoice shall bear a service charge of one
and one-half percent (1 ½) per month (eighteen percent (18%) per annum),
until Seller is paid in full by Customer (not to exceed the maximum
legal limit in the State of Missouri). A service charge of $25.00 will
be charged and paid by Customer to Seller for each check returned for
any reason. In addition to any progress payment or issuance of a
proforma invoice by Seller as set forth in Section 2.3 above, if, at any
time, Seller deems the financial responsibility of Customer
unsatisfactory, then Seller reserves the right to require additional
advance payments or other securities or guarantees that the Final
Invoice will be promptly paid, when due, by Customer.
Section 3.
Delivery; Shipping; Packing; and Inspection.
3.1
Delivery; Shipping.
All Products shall be delivered to Customer in the quantities, at the
time, and to the destination, specified in the Acknowledgement;
provided, however, upon the departure of any Product from
either the Seller’s or a third-party manufacturer’s facility (as the
case may be), Seller shall not be liable for any damages, claims,
liabilities, obligations or otherwise arising or resulting from, or in
connection with, any delay of shipment, or damage to shipment in
transit, of the Products caused by any reason beyond the reasonable
control of Seller, including, without limitation, any third-party
manufacturer or supplier or any Force Majeure Event (as defined in
Section 3.4 below). All Products are shipped “FOB shipping point” or
“FOB origin”. Therefore, all shipping and/or delivery damages, claims,
liabilities, obligations or otherwise must be processed by Customer with
the respective shipping carrier and shall not be a liability or
obligation of Seller. Seller will make a good faith effort to assist
Customer in every possible way with any shipping and/or delivery damage,
claim, liability, obligation or otherwise; however, any claim and future
proceedings related thereto are the sole responsibility of Customer.
Any additional costs incurred by Seller to have any Products split into
multiple shipments not previously included in the Acknowledgement will
be borne by Customer.
3.2
Packing. All
Products will be packaged, marked and prepared in accordance with good
commercial practices to obtain the lowest shipping, delivery and
transportation rates.
3.3
Inspection.
Customer must carefully inspect all Products immediately upon receipt
and before signing the Bill of Lading for possible shortages,
inaccuracies or any other errors, except for any damage to such
shipment. In the event that any shipment of the Products to Customer
contains any shortage, inaccuracy or any other error, excluding any
damage, Customer must note the shortage, inaccuracy or error on the Bill
of Lading and promptly notify Seller, in writing, within two (2) days of
receipt of shipment of the Products, and failure to give such written
notice to Seller shall constitute unqualified acceptance of the Products
and a waiver of all such claims by Customer. Upon receipt by Seller of
written notice within the two (2) day time period set forth in this
Section 3.3, Seller, in its sole discretion, shall determine whether
there was a shortage, inaccuracy or other error of the shipment of the
Products sent to Customer. If Seller determines that there was a
shortage, inaccuracy or other error of the shipment of the Products sent
to Customer, then Seller
agrees to pay the reasonable costs necessary to resolve
any issues discovered during any inspection (including freight of any
Product shipped to Customer).
3.4
Time. Time is
of the essence in the performance of the Acknowledgment; provided,
however, in the event of any Force Majeure Event, Seller reserves
the right to suspend shipment of any Products covered under the
Acknowledgement. For purposes of these Terms and Conditions, the phrase
“Force Majeure Event” means, a war, civil unrest, strike, lockout, labor
dispute, unusually severe weather, inability to procure materials,
failure of power, restrictive governmental laws and regulations, riots,
insurrections, outbreak of disease, acts of terrorism, national
emergency, governmental change, transportation curtailment, fuel
shortages, natural disaster, acts of God, acts caused directly or
indirectly by Customer (or Customer’s agents, employees, contractors,
subcontractors or any other representatives of Customer), delay by any
third-party manufacturer or supplier, concealed freight damage or any
other cause or contingency beyond the reasonable control of Seller.
Section 4.
Warranty.
4.1
Seller’s Limited Warranty.
Seller warrants (“Seller’s Limited Warranty”) to the original Customer
that any Product manufactured by Seller’s actions and sold to the
original Customer under an Acknowledgement will
be free from manufacturing defects in workmanship of materials under
normal use and service, excepting any normally occurring variations
resulting from the use of feedstock with recycled content, as follows:
(A) for a period of five (5) years for synthetic resilient flooring
Products from the date of shipment from Seller’s facility; (B) for a
period of three (3) years for natural cork Products from the date of
shipment from Seller’s facility; and (C) for a period of fifteen (15)
years for polyethylene materials and fabrications (including, without
limitation, any fabricated polyethylene panel Products, restroom and
decorative partitions, toilet and shower stalls, doors, privacy screens,
vanities, countertops, store fixtures, furniture and cabinets) from date
of shipment from Seller’s facility (each period, a “Seller’s Limited
Warranty Period”). The Seller’s Limited Warranty is offered only to the
original Customer under an Acknowledgement, and does not cover damage to
any Product resulting from misuse, abuse, accident, casualty, neglect,
improper handling, freight damage (whether concealed or not),
misapplication or improper installation (including, installation in
abnormal or adverse conditions of heat, moisture, dirt or corrosive
substances) or modification to the Product, including, without
limitation, bending or lamination. Customer’s failure to timely pay any
Invoice in full within the terms specified therein or herein will void
all warranties, express or implied, with regard to any Product listed on
that Invoice, including, without limitation, Seller’s Limited Warranty.
4.2
Batch Sensitivity.
Customer agrees and acknowledges that all Products and materials
manufactured and sold by Seller are batch sensitive, and that orders for
Products and materials manufactured at different times by Seller could
be dissimilar.
4.3
Typical Properties.
All information provided by Seller is offered in good faith as
representative of the characteristics found in materials offered and
Products sold. Physical property measurements are typical values only
and are subject to normal occurring variations in test method and
Product manufacture. No guarantees are expressed or implied and Seller
assumes no liability.
4.4
Accuracy of Information.
Customer acknowledges that all of the information provided by Customer
to Seller is in all material respects true, correct and accurate.
Customers are advised to confirm, prior to executing and returning an
Acknowledgment to Seller, that all of the information provided therein
is current, applicable, reflects the information the Customer provided
to Seller, and in accordance with Section 1.4 hereof, the Products are
suitable to Customer’s circumstances and application. Since the use of
any materials and Products by Customer are beyond the control of Seller,
no guarantees by Seller are expressed or implied and Seller assumes no
liability, except as defined in Sections 4.1 and 4.5 hereof. In the
event that any information provided by Customer to Seller is inaccurate,
and due to such inaccuracies, a change must be made to the Products,
materials, quantities or otherwise, at no time shall Seller be
responsible for any such change (including, without limitation, the cost
of labor, material or transportation), and Customer must follow the
procedure set forth in Section 1.3 hereof.
4.5
Seller’s Warranty for Replacement Parts
Process. If a defect of a Product should
appear which Customer believes is covered by the Seller’s Limited
Warranty under Section 4.1 above, Customer must follow and comply with
all the applicable provisions of this Section 4.5. Seller’s
responsibility is limited to repairing the defective Product or
furnishing Customer a replacement Product at no cost to Customer, except
that, Customer is solely responsible for all shipping costs and labor to
remove and install the Product or part thereof. During the applicable
Seller’s Limited Warranty Period, Customer must notify Seller, in
writing, of any alleged defect of a Product or part thereof with
reasonable specificity, and Customer must ship the reportedly defective
Product or part thereof to Seller for inspection, freight prepaid, by
Customer. Upon inspection of any allegedly defective Product or part
thereof by Seller, Seller will either (a) ship a new replacement Product
or part thereof to Customer, freight prepaid by Seller; (b) return
repaired Product or part thereof to Customer, freight prepaid by Seller;
or (c) if the allegedly defective Product or part thereof, is found to
be non-defective by Seller, then Seller will return the non-defective
Product or part thereof, to Customer, freight paid by Customer. Proof
of a Customer’s Acknowledgment is required prior to shipment of any
Seller’s Limited Warranty replacement Product or part thereof. Any
repaired or replacement Product or part thereof will be shipped to
Customer via Seller’s freight service or by Customer specified freight
service (if Customer pays for such service). Any Seller’s Limited
Warranty claim under Section 4.1 hereof, must be made during the
applicable Seller’s Limited Warranty Period specified herein and shall
be asserted by Customer by contacting Seller at the following address:
Yemm & Hart, Ltd.
1417 Madison 308
Marquand, Missouri 63655
Tel: (573) 783-5434
Fax: (573) 783-7544
Email:
yemmhart@hughes.net
THERE ARE NO OTHER
EXPRESS OR IMPLIED WARRANTIES WHICH EXTEND BEYOND THE ACKNOWLEDGEMENT,
INVOICE OR THESE TERMS AND CONDITIONS. THE SOLE AND EXCLUSIVE REMEDY IS
THE REPAIR OR REPLACEMENT OF THE PRODUCT OR PART THEREOF. IN NO EVENT
SHALL SELLER BE LIABLE FOR ANY INDIRECT, ACTUAL, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF, RELATED TO, OR
IN CONNECTION WITH, A DEFECT IN ANY PRODUCT, LABOR OR MATERIAL. NO
REPRESENTATIVE OF SELLER HAS THE AUTHORITY TO MAKE ANY AFFIRMATION OF
FACT OR PROMISE WHICH RELATES TO THE PRODUCTS EXCEPT AS STATED HEREIN.
Section 5.
Confidentiality.
Customer will treat as confidential all trade
secrets and other information regarding Seller, its Products or business
provided or made accessible by Seller under the Quotation,
Acknowledgement, Invoice and these Terms and Conditions (“Confidential
Information”). Customer will not disclose Confidential Information to
any third-party, nor use that information, directly or indirectly, other
than as contemplated by the Quotation, Acknowledgement, Invoice and
these Terms and Conditions, without the express prior written consent of
Seller. Notwithstanding the foregoing, Customer is not prohibited from
disclosing Confidential Information (a) that was previously known to
Customer before the disclosure thereof by Seller under the Quotation,
Acknowledgement, Invoice and these Terms and Conditions; (b) which is
now or becomes in the future, public knowledge other than by breach of
the Acknowledgement, Invoice and these Terms and Conditions by Customer;
(c) which is lawfully obtained by Customer from a source that is
independent of Seller and is not obligated to keep the information
confidential; (d) which is required to be disclosed by judicial or
administrative process, provided Customer must promptly notify Seller
and allow Seller a reasonable time to seek an injunction or other
appropriate remedy or provisional judicial or administrative relief, if
appropriate, in the sole discretion of Seller; or (e) which has been
disclosed to Customer on a non-confidential basis by any third-party
that is in lawful and rightful possession of the information and not
under any obligation of confidentiality.
Section 6.
Cancellations.
Cancellation by Customer of an order of Products
specified in an Acknowledgement is subject to written acceptance by
Seller, in its sole discretion. If such cancellation is accepted in
writing by Seller, a refund of any progress or advance payment will be
made after deducting all expenses and costs related to the
Acknowledgement and incurred by Seller up to the point of cancellation
of an order of the Products specified in the Acknowledgement (including,
without limitation, manufacturing and production costs and Seller’s
customary charges for labor and profit for the manufacturing and
management of the Products). In accordance with Sections 2.2 and 2.3
hereof, the non-refundable cash deposit, any prepayments or any progress
payments will be imposed against Customer to indemnify Seller for any
and all losses or expenses sustained as a result of any accepted
cancellation of an order of the Products specified in the Acknowledgment
by Seller. All Products are “built-to-order” items and may not be
returned to Seller, subject to Section 4.5 hereof, and Customer agrees
and acknowledges that the price and any non-refundable cash deposit
stated in the Quotation and Acknowledgement includes the entire cost of
the Products manufactured or acquired in pursuance hereof.
Section 7.
Independent Contractor.
Seller is an independent manufacturer under the
Acknowledgement and these Terms and Conditions, and nothing herein shall
be construed to create a contractor sub-contractor relationship,
partnership, joint venture or agency relationship between Seller and
Customer. Neither party shall have the authority to enter into
agreements of any kind on behalf of, or for the benefit of, the other
party, and, shall have no power or authority to bind or obligate the
other party in any manner to any third-party.
Section 8.
Indemnity.
Customer will indemnify, hold harmless and defend
Seller and its affiliates, and their respective officers, members,
directors, managers, employees, agents, representatives and advisors
(collectively, the “Indemnified Parties”), from and against, and will
reimburse those Indemnified Parties with respect to, any and all claims,
demands, debts, expenses, liabilities, fines, penalties, deficiencies,
judgments or costs, including any reasonable attorneys’ fees and court
costs, amounts paid in settlement and costs and expenses of
investigations, at any time and from time to time asserted against or
incurred by any of those Indemnified Parties arising out of, relating
to, in connection with, or resulting from or by reason of (a) any breach
of the Acknowledgement, Invoice and these Terms and Conditions by
Customer; or (b) any negligent act, willful act or omission of
Customer. Seller shall have the right to apply such costs against any
and all sums payable to Seller under the Acknowledgement, Invoice, these
Terms and Conditions and any and all sums payable to Seller under this
Section 8.
Section 9.
General Provisions.
9.1
Binding Nature of Agreement; No
Third-Party Beneficiaries. All of the terms
and provisions of the Acknowledgement, Invoice and these Terms and
Conditions will be binding upon, and will inure to the benefit of, the
parties and their respective successors, permitted assigns, heirs and
personal representatives. It is not the intention of the parties to
confer third-party beneficiary rights upon any other third-party.
9.2
No Exclusive Agreement.
Customer is free to engage others to provide services the same as, or
similar to, Seller.
9.3
Notices. All
notices or other communications required or permitted under these Terms
and Conditions will be in writing and will be delivered by hand or
overnight courier service, mailed by certified or registered mail, or
sent by fax or email, using the recipient party’s contact information
identified in the Acknowledgement, Invoice or these Terms and
Conditions. A party may change its contact information by notice to the
other party. All notices and other communications given to a party in
accordance herewith will be deemed to have been given on the date of
actual receipt (with sufficient evidence of proof of delivery).
9.4
Assignment.
Customer may not assign, delegate or transfer to any third-party any of
its rights or obligations hereunder without the prior written consent of
Seller.
9.5
Consent to Conduct Business
Electronically. Except as may be specifically
set forth in these Terms and Conditions, the parties may use and rely
upon electronic records and electronic signatures, including, without
limitation, to the extent signed and delivered by means of a facsimile
machine, or as an attachment to an electric mail message in “pdf” or
similar format, (a) for the acceptance, execution and delivery of the
Quotation, Acknowledgement and any other agreements, undertakings,
notices, disclosures or other documents, communications or information
of any type sent or received in accordance with the Acknowledgement,
Invoice and these Terms and Conditions, and (b) in providing their
obligations or exercising their rights under the Acknowledgement,
Invoice and these Terms and Conditions. For avoidance of doubt, the
parties expressly agree and acknowledge that any Quotation,
Acknowledgment, these Terms and Conditions or any other agreement
relating to the Products may be accepted, or otherwise agreed upon, by
Customer by and through any means of electronic transmission in lieu of
a signed Acknowledgement by Customer in accordance with Section 1.2
above, including, without limitation, by way of an electronic mail
message.
9.6
Construction.
The terms “include,” “including” and similar terms will be construed as
if followed by the phrase “without being limited to.” The words
“hereof,” “herein,” “hereto,” “hereby,” “hereunder,” and similar terms
in these Terms and Conditions refer to these Terms and Conditions as a
whole and not to any particular provision or section of these Terms and
Conditions. Unless otherwise expressly stated, the term “party” means a
party hereto and “parties” means, collectively, all parties hereto.
Where the context requires, the use of any gender shall include any and
all genders or neutral genders.
9.7
Authority.
Customer represents that it has the full power and authority to enter
into the Acknowledgement and these Terms and Conditions, and the person
issuing and executing the Acknowledgement on behalf of Customer has been
properly authorized and empowered to take such action. Customer
acknowledges that it has read the Acknowledgement, Invoice and these
Terms and Conditions, understands them, and agrees to be legally bound
by them.
9.8
No Waiver. No
failure or delay by any party in exercising any right, power, or
privilege hereunder will operate as a waiver of any right, power, or
privilege hereunder. No waiver of any default on any one occasion will
constitute a waiver any subsequent or other default. No single or
partial exercise of any right, power, or privilege will preclude the
further or full exercise thereof.
9.9
Dispute Resolution.
The parties agree to resolve any disputes, controversies or claims
arising out of, relating to, or in connection with, the Quotation,
Acknowledgement, Invoices or these Terms and Conditions through email,
telephone or face-to-face discussions and negotiations between each
other. In the event that, after good faith discussions, such disputes,
controversies or claims cannot be resolved solely between the parties,
the parties may agree upon any type of formal or informal dispute
resolution that is feasible under the circumstances, including referral
of any such dispute, controversy or claim to any third-party for
resolution. In the event of any dispute, controversy or claim still
exists and the parties are unable to agree on a form for dispute
resolution, such dispute shall be resolved by arbitration in accordance
with procedures set forth in the American Arbitration Association.
The parties may use all
methods of discovery available under the Federal Rules of Civil
Procedure. The final award shall award to the prevailing party its or
his reasonable attorneys’ fees and expenses incurred in connection with
the arbitration and may grant such other and further relief as
determined by the arbitrator, including damages of reasonable
out-of-pocket costs. The decision of the
arbitrator shall be binding on the parties and each party shall have the
right to bring an action in a state or federal court located in Kansas
City, Jackson County, Missouri, to enforce and confirm any award
under this Section 9.9. The arbitration shall be held in the Greater
Kansas City, Missouri, metropolitan area. The law of the State of
Missouri shall be the law used by the arbitrator in rendering the award
9.10
Survival.
Upon termination of the Acknowledgement, Invoice and these Terms and
Conditions, any and all rights and obligations of the parties under the
Acknowledgement, Invoice and these Terms and Conditions shall terminate;
provided, however, that any right or obligation which by
its nature or express duration extends beyond the termination of the
Acknowledgement, Invoice and these Terms and Conditions, including,
those set forth in Sections 2, 3, 4, 5, 6, 7, 8 and 9 hereof,
shall survive such termination and continue in effect.
9.11
Entire Agreement.
The agreements indicated in the Acknowledgement, Invoice and these Terms
and Conditions contain the entire agreement among the parties with
respect to the subject matter hereof, and supersede all prior and
contemporaneous agreements and understandings, inducements or
conditions, expressed or implied, oral or written. If any conflict
exists among any of the terms of the Quotation and Acknowledgement, the
terms and conditions of the Acknowledgement shall govern and control.
9.12
Prevailing Party Expenses.
In the event that any party seeks to enforce the terms and conditions of
the Acknowledgment or these Terms and Conditions, all costs and expenses
(including any reasonable attorneys’ fees and dispute resolution costs
pursuant to Section 9.9 above) incurred by the successful or prevailing
party enforcing any term and condition of, or protecting the successful
or prevailing party’s rights under, the Acknowledgment or these Terms
and Conditions, shall be paid by the non-prevailing party.
9.13
Amendment.
Except as otherwise provided herein, neither the Acknowledgement,
Invoice or these Terms and Conditions may be modified or amended other
than by an agreement in writing signed by duly authorized
representatives of each of the parties.
9.14
Severability.
The provisions of these Terms and Conditions will be deemed severable,
and the invalidity or unenforceability of any one or more of the
provisions hereof will not affect the validity and enforceability of the
other provisions hereof.
9.15
Publicity.
Customer will not use any Seller’s trademark, name or logo in any
publicity release, advertising or other promotional activity without the
prior written consent of Seller. Seller’s published information in
print or on their website is copyrighted by “Yemm & Hart, Ltd.” and all
rights are reserved.
9.16
Governing Law; Venue.
The Acknowledgement, Invoice and these Terms and Conditions will be
governed by and will be construed, interpreted, and enforced in
accordance with the laws of the State of Missouri, without regard or
reference to conflicts of law principles. The parties hereby irrevocably
and unconditionally consent and submit to the personal jurisdiction and
venue of any state and federal court located in Kansas City, Jackson
County, Missouri.
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