1. Terms: The purchase and sale of the products (“Products”) of Architectural Art Tile. (“Company”) noted in this invoice (“Invoice”) is subject solely to the terms set forth herein. Any additional or different terms proposed by Customer (whether in any purchase order or other document now or subsequently submitted by Customer) are rejected by Company and will be of no effect unless expressly agreed to in writing by an authorized representative of Company.
2. Prior Acceptance: All orders for Products presented to Company are subject to, and shall not be binding upon Company absent, written acceptance of such order by an authorized representative of Company. After its acceptance by Company, any expense incurred by Company as a result of Customer’s cancellation, amendment or modification of such order shall be added to the amount due Company under its Invoice unless waived in writing by Company.
3. Shipment: Unless otherwise noted, Products are shipped F.O.B. Company Facility, Freight Collect. Title and risk of loss shall pass to Customer upon placement of the Products with the carrier designated by Customer (or in absence of a carrier designated by Customer, a carrier selected by Company). Customer shall bear all costs associated with shipment, including but not limited to, freight costs, customs duties and insurance costs.
4. Delivery Dates: Company shall use reasonable commercial efforts to meet delivery dates for Products quoted herein, but such delivery dates are approximate and are subject to change, and, unless otherwise agreed in writing, Company shall have no liability for failure to strictly comply with such delivery. Unless otherwise agreed, Company shall be entitled, at its option, and upon notice to the Customer, to deliver the quantity of Products noted herein by single delivery or by installments. Expedited orders shall be subject to an additional Rush Order Service Charge.
5. Shortages, Overages, Defects: Any claims for shortages or other defects in a particular shipment due to acts or omissions of Company must be made in writing to Company within ten (10) days following receipt of such shipment by the Customer. In the event of such a shortage or defect, Customer’s sole remedy and Company’s sole obligation shall be, at the Company’s option, to arrange for prompt shipment of additional or replacement Products or reduce the amount due Company by the cost of the unshipped or defective Products. In the absence of such notice, Customer shall be deemed to have accepted such shipment, and, except as otherwise provided herein, Company shall have no liability associated with such shortages, overages or other defects.
6. Damage Policy: Report damage on shipped products to Architectural Art Tile within 24 hours of receipt of shipment. UPS will perform a damage inspection, so keep all packaging and tile intact as received.
7. Terms of Payment: Payment of invoice is due prior to shipping date. Company reserves the right to request payment in advance or satisfactory guarantee that invoices will be paid promptly when due.
8. Company Warranty: Company warrants the Products provided by Company hereunder shall be of merchantable quality and shall substantially comply with the Company’s base formulation associated with such Product and shall be free from material defects in materials and workmanship for a period of twelve (12) months from the date of shipment by Company (“Company Warranty”). Company shall not be liable for any breach of the Company Warranty due to (i) acts or omissions of Customer or any third party after delivery; (ii) abuse, damage beyond normal wear and tear or failure, (iii) use of Products other than in accordance with manufacturer's instructions and Product specifications; or (iv) modification or alteration of the Products by any party other than the Company. In the event any Product is determined by the Company to be in breach of the aforementioned Company Warranty, the sole remedy of complaining party and the Company’s sole obligation shall be, at the Company’s discretion and cost, to either repair or replace the allegedly defective Product.
THE COMPANY WARRANTY IS THE SOLE WARRANTY OF COMPANY WITH RESPECT TO THE PRODUCTS SOLD HEREUNDER AND COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF PERFORMANCE OR COURSE OF DEALING.
9. Vendor Products: Components of Products supplied by Company hereunder are provided and manufactured by vendors other than Company and are subject to warranty terms provided by such vendors (“Vendor Products”). Company makes no warranties of any kind with respect to such Vendor Products, whether express or implied.
10. Product Returns: No Product may be returned to Company without the prior written authorization of Company. Company may, at its discretion, refuse the return of any non-standard Product manufactured to Customer specifications. Items approved for return must be shipped prepaid and all shipping documents must reference the Company Return Goods Authorization (“RGA”) number issued by Company.
11. LIMITATION OF LIABILITY: IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER, OR TO ANY THIRD PARTY CLAIMING BY OR THROUGH CUSTOMER, FOR ANY DIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS REVENUE OR GOODWILL) ARISING OUT OF OR IN CONNECTION WITH THE PURCHASE, SALE OR USE OF PRODUCTS HEREUNDER. THE FOREGOING NOTWITHSTANDING THE AGGREGATE LIABILITY OF COMPANY WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER IN TORT, CONTRACT OR OTHERWISE SHALL IN NO EVENT EXCEED THE COMPENSATION PAID BY CUSTOMER TO COMPANY PURSUANT TO THIS INVOICE.
12. Company Intellectual Property: Customer acknowledges and agrees that any and all patents, trademarks, copyrights, trade secrets, know-how and other intellectual property of Company associated with the Products sold hereunder “Proprietary Information”) is the exclusive property of Company and the Customer (a) shall hold Proprietary Information received or otherwise obtained from Company in confidence and not disclose such Proprietary Information to any third party; (b) will have no rights, by license or otherwise, to use the Proprietary Information except as expressly provided herein; and (c) will not reverse engineer, decompile or disassemble any Proprietary Information disclosed by Company.
13. Governing Law; Jurisdiction: This Invoice shall be governed by the laws of the state of Washington, without regard to applicable rules governing conflicts of laws and without regard to or application of the United Nations Convention on Contracts for the International Sale of Goods. The parties agree that any dispute arising out of or related to the purchase and sale of Products by Customer or this Invoice shall be subject to the non-exclusive jurisdiction of the courts of the State of Washington, U.S.A., in King County, Washington and the United States District Court for the Western District of Washington at Seattle. |
