a. Once Buyer accepts this Proposal and the Terms, or places a subsequent order, Buyer shall not have any right to cancel its order or reduce the quantity of Products ordered under any circumstances, even if Seller increases its prices pursuant to Section 5b.
b. Buyer assumes the risk that Seller’s cost of supplying Products after 90 days from the date of this Proposal may increase. Accordingly, Seller may unilaterally increase the prices of Products delivered to Buyer after 90 days from the date of this Proposal to reflect any increase in Seller’s cost of supplying such Products, regardless of the reason why such Products are delivered after 90 days from the date of this Proposal, provided, that this Section 5b. shall not permit Seller to increase its prices for Products delivered after 90 days from the date of this Proposal to the extent that delivery of such Products after 90 days from the date of this Proposal constitutes a breach of the Terms by Seller.
c. Subject to the further terms of this Section 5c., Seller’s lead time for supplying Products shall be as specified in the Proposal or otherwise mutually agreed by Seller and Buyer. If the quantity of any Products listed in the Proposal or subsequently ordered by Buyer exceeds Seller’s available inventory of such Products, Seller will fulfill Buyer’s order to the extent of Seller’s available inventory of such Products, backorder the remainder of such Products and fulfill the remainder of Buyer’s order when a sufficient quantity of Products is available to Seller. Seller’s lead time for supplying backordered Products shall be extended for the period reasonably required by Seller to obtain such Products and supply such Products to Buyer, and Seller shall have no liability to Buyer for such delay. Seller may increase the price of backordered Products in accordance with Section 5b. Buyer shall not have any right to revoke its order for backordered Products.
a. As specified in Section 2, Buyer shall provide to Seller the location to which Seller shall ship the Products when acknowledging this Proposal. If Buyer fails to so provide that location, time being of the essence, Seller may, in its discretion, cancel Buyer’s order for such Products or hold such Products as Bill and Hold Products, subject to storage charges as provided in Section 6b. Buyer may (i) change the location and method to which Seller shall ship any Products and Buyer is responsible for any change in cost of freight, (ii) subject to Section 6c., specify that Buyer will arrange for pickup of any Products or (iii) instruct Seller to hold any Products as Bill and Hold Products within a reasonable time prior to the scheduled date for shipment of such Products.
b. All prices for Products are F.O.B. the facility or facilities of Seller or Seller’s suppliers from which Products are shipped to Buyer. Buyer shall pay all taxes, customs and other duties and exchange, interest, banking, collection and other charges related to its purchases of Products, and, in the case of Bill and Hold Products, storage charges equal to the greater of $250 per day or $.10 per square foot per day (collectively, “Related Charges”).
c. Seller will ship the Products to the location specified by Buyer pursuant to Section 2 or Section 6a. by a common carrier selected by Seller or by other means of transport selected and provided by Seller or Seller’s supplier, except to the extent that Seller, in its discretion, permits Buyer to pick up Products at Seller’s location with a vehicle and driver acceptable to Seller, in its discretion. Buyer shall notify Seller in writing pursuant to Section 6a. if Buyer desires to arrange for pickup and transportation of Products and shall specify in that written notice the vehicle and driver that Buyer intends to use for such pick-up and transportation. Title to, and risk of loss of, any Products shipped to Buyer will pass to Buyer upon delivery of such Products to the carrier picking up the Products. Title to, and risk of loss of, any Products that Seller permits to be picked up by or on behalf of Buyer shall pass to Buyer when such Products are picked up from Seller’s or Seller’s supplier’s facility by or on behalf of Buyer. Notwithstanding anything in this Section 6c. to the contrary, Seller shall have no obligation to inspect or determine the suitability of any vehicle or driver used to pick-up and transport the Products.
a. Buyer shall pay to Seller, together with Buyer’s acceptance of this Proposal and prior to shipment of Products to Buyer, the full amount of the price of the Products or the amount of any lesser up-front payment required by this Proposal. Seller will invoice Buyer for any balance of the purchase price for the Products and any Related Charges initially borne by Seller at a time or times determined by Seller in its discretion. Buyer shall pay each such invoiced amount within the time specified in the Proposal or, if not specified in the Proposal, as specified in Seller’s invoice or, if not specified in the Proposal or such invoice, net 30 days of the date of the relevant invoice. Buyer shall pay all amounts due to Seller under the Terms in immediately available U.S. dollars.
b. Buyer shall not exercise, and hereby waives, any right of setoff, offset or deduction Buyer has, or may in the future have, against any amounts due to Seller under the Terms or otherwise.
c. If Buyer fails to pay when due any amounts payable by Buyer to Seller, under the Terms or otherwise, in addition to any other rights Seller may have under the Terms and applicable Law, (i) such overdue amounts shall be subject to a service charge at the rate of 1.5% per month or the maximum legal rate, whichever is lower, (ii) Seller may cancel or delay any future shipments of Products to Buyer without any liability to Buyer and (iii) Seller may accelerate payment of any other amounts owed by Buyer to Seller, under the Terms or otherwise, and such amounts shall become immediately due and payable. Buyer will pay to Seller any amounts charged to Seller by its banks plus a service charge of $20 for any Buyer checks that are returned by Seller’s bank or are otherwise invalid or dishonored.
d. If Seller accepts partial payment of any amount due to Seller under the Terms, Seller hereby reserves, and shall be deemed to have reserved, its rights in connection with such acceptance in accordance with Section 1-207 of the New York Uniform Commercial Code, regardless of whether Seller notes such reservation of rights in the course of such acceptance.
e. Notwithstanding anything in this Proposal to the contrary, Seller may at any time and in its discretion (i) extend credit to Buyer, (ii) withhold or withdraw credit from Buyer or (iii) require Buyer to pay in cash all or any portion of the purchase price for any Products and any Related Charges (A) upon delivery of such Products or (B) at any earlier time. Notwithstanding any action or inaction by Seller permitted by this Section 7e., Buyer’s obligations under the Terms shall remain in effect, unchanged.
f. Any property of Buyer in Seller’s possession at any time including Bill and Hold Products and Products to be delivered to Buyer shall be deemed held by Seller as security for Buyer’s obligations to Seller under this agreement or arising in any other manner and Seller shall have the rights pertaining to such property of a secured party under article 9 of the New York Uniform Commercial Code.
a. Buyer shall inspect all Products delivered to Buyer or picked up by or on behalf of Buyer immediately upon such delivery or pickup for (i) any discrepancy in the quantity of such Products from that specified in this Proposal and (ii) any damage visible without removing the packaging of such Products (collectively, “Initial Discrepancies”). Buyer shall list any such Initial Discrepancies in writing and have the delivery driver, or, if such Products are picked up by or on behalf of Buyer, a representative of Seller or Seller’s supplier, sign and date such list before leaving the delivery or pickup location. Prior to the close of business at the location of delivery or pickup on the day of delivery or pickup, Buyer shall send such signed list of Initial Discrepancies to Seller by facsimile or email and send a follow-up paper copy to Seller by mail. Buyer shall, at Seller’s request, permit Seller to inspect any alleged Initial Discrepancies at the place where the Products are located during normal business hours.
b. Buyer shall (i) inspect all Bill and Hold Products for Initial Discrepancies within 10 days after the date on which Buyer notifies Seller that Seller is holding such Products and (ii) notify Seller in writing of any Initial Discrepancies related to such Products before the close of business on that 10th day.
c. Buyer shall (i) further inspect all Products within 5 days after the date on which such Products are delivered to, or picked up by or on behalf of, Buyer for (y) any non-compliance of such Products with the specifications therefor and (z) any damage visible only after removing the packaging of such Products (collectively, “Follow-Up Discrepancies,” and together with Initial Discrepancies, “Discrepancies”), (ii) notify Seller in writing on or before the close of business on that 5th day of any such Follow-Up Discrepancies and (iii) at Seller’s request, permit Seller to inspect any alleged Follow-Up Discrepancies at the place where the Products are located during normal business hours.
d. To the extent that (i) the Products are installed or altered in any way or (ii) Buyer fails to notify Seller of, and permit Seller to inspect, any Discrepancies pursuant to Section 8a., b. or c., as applicable, time being of the essence, Buyer shall be deemed to have waived its right to object to such Discrepancies in such Products.
a. SELLER WARRANTS TO BUYER THAT THE PRODUCTS WILL BE THE QUANTITY AND TYPE OF PRODUCT PROVIDED IN THIS PROPOSAL AND WILL BE FREE OF ANY SECURITY INTEREST OR OTHER LIEN. SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, RELATED TO THE PRODUCTS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLER MAKES NO WARRANTY RELATED TO THE COMPOSITION, GRADE, WEIGHT, QUANTITY, BREAKING STRENGTH, SHRINKAGE, YIELD, STAIN RESISTANCE, COLOR, FINISH, FIRE RETARDANCE, PERFORMANCE, DESIGN CAPABILITIES, OR CAPACITIES, OTHER MECHANICAL, PHYSICAL, OR CHEMICAL PROPERTIES, ABSENCE OF MINOR, USUAL OR ORDINARY DEFECTS, OR VARIATION IN THICKNESS OR FINISH OF THE PRODUCTS OR PERCENTAGE, SIZE AND SHAPE OF MARKINGS.
b. Product samples and the statements in Seller’s brochures and advertising materials are for informational purposes only. The color of natural stone and wood products and the percentage, size, and shape of markings on such products will vary. The pattern and shade of man-made products will also vary. All Product sizes are nominal, not actual.
c. Natural and man-made products of the type sold by Seller inevitably contain irregularities and defects. Products containing irregularities or defects (x) that are beyond the control of Seller, (y) that Seller cannot prevent by the exercise of reasonable care or (z) that are natural to or inherent in any particular Product, shall not be deemed to be defective, and Buyer shall have no recourse to Seller for such irregularities or defects in such Products.
d. BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR SELECTING PRODUCTS THAT MEET BUYER’S REQUIREMENTS AND INSPECTING SUCH PRODUCTS.
e. Seller may cure any Discrepancy consisting of a shortage in quantity of any Products by delivering a conforming quantity of Products to Buyer, by a common carrier selected by Seller or other means of transport selected and provided by Seller or Seller’s supplier, as soon as reasonably practicable after Buyer notifies Seller in writing of such shortage pursuant to Section 8a. or b., as applicable, in which case Buyer shall have no further recourse to Seller.
f. Buyer’s sole remedy for any Discrepancies other than a shortage in quantity of Products shall be to return the affected Products to Seller at Buyer’s expense, subject to receiving a return authorization from Seller. FOR CUT-TO-SIZE AND SPECIAL ORDERED PRODUCTS THE SELLER WILL NOT ACCEPT ANY RETURN OF PRODUCT. Upon its receipt of returned Products, Seller will determine the extent to which Discrepancies exist in such returned Products, including by performing any Product tests deemed required by Seller, in its discretion. To the extent that Seller determines that Discrepancies exist in any returned Products, Seller, in its discretion, will either (i) refund the purchase price and any Related Charges paid to Seller for such Products and, only if Buyer complied with any shipping instructions in Seller’s return authorization, reimburse Buyer for the shipping charges incurred by Buyer to return such Products to Seller in accordance with such shipping instructions or (ii) deliver conforming Products to Buyer at Seller’s expense within 45 days after Seller’s receipt of such returned Products, or such longer period as Seller reasonably requires to obtain and deliver conforming Products, and in each case Buyer shall have no further recourse to Seller. To the extent that Seller determines that no Discrepancies exist in any returned Products, Buyer (x) shall remain liable to Seller for the purchase price of such Products and shall not be entitled to any refund or reimbursement for return shipping charges, (y) shall pay to Seller, on demand, Seller’s fully burdened cost of inspection and any testing and (z) shall arrange for such Products to be removed from Seller’s facility at Buyer’s sole expense within 20 days after Seller notifies Buyer of such determination or pay to Seller, on demand, a restocking fee of 25% of the purchase price for such Products.
g. Buyer shall not have any right to return any Products to Seller unless Discrepancies exist in such Products. Buyer shall not return any Products to Seller without first obtaining written return authorization from a duly authorized representative of Seller. Buyer shall ship the returned Products to Seller in accordance with any shipping instructions contained in such written return authorization. Seller shall not unreasonably withhold or delay providing such a return authorization. Buyer shall include a copy of such written return authorization with the returned Products.
a. NOTWITHSTANDING ANYTHING IN THE TERMS TO THE CONTRARY, SELLER SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO BUYER FOR ANTICIPATED PROFITS, LOST PROFITS OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY CLAIM ARISING OUT OF THE TERMS, OR OTHERWISE RELATED TO THE PRODUCTS, REGARDLESS OF WHETHER SUCH CLAIM SOUNDS IN TORT, CONTRACT, BREACH OF WARRANTY OR ANY OTHER THEORY. THE REMEDIES GRANTED TO BUYER IN SECTION 9 ARE SOLE AND EXCLUSIVE. BUYER ACKNOWLEDGES THAT SUCH REMEDIES ALLOCATE RISKS BETWEEN BUYER AND SELLER FAIRLY AND IN A MANNER WHICH UNDER NO CIRCUMSTANCES WILL CAUSE SUCH REMEDIES TO FAIL OF THEIR ESSENTIAL PURPOSE.
b. Seller’s aggregate liability to Buyer related to any Products shall in all circumstances be limited to the purchase price of such Products.
a. Buyer shall indemnify Seller and its members, managers, directors, officers, employees, agents and affiliates (collectively, the “Seller Indemnified Persons”) against, and hold the Seller Indemnified Persons harmless from, any and all Losses arising from or related to (i) any claims by or on behalf of any third Person that relate to any Products and arise from or relate to events occurring after delivery of such Products to Buyer or (ii) any breach of this Proposal and the Terms by Buyer.
b. “Losses” means any and all losses including lost profits and consequential and incidental losses, claims, shortages, damages, Liabilities, fees, expenses and costs (including reasonable fees of attorneys and other professionals), assessments, taxes and insurance premium increases, including such items incurred in investigating, defending or asserting any claim.
c. “Liability” means any liability or obligation, whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated and whether due or to become due, regardless of when asserted.
a. Any dispute or claim arising out of, or in connection with, any provision of the Terms or the Products shall be finally and exclusively settled by binding arbitration in New York County, New York, in accordance with the rules of the American Arbitration Association, by one arbitrator appointed in accordance with those rules. The arbitrator shall have no power to amend the Terms and shall apply the Laws of the State of New York to the resolution of such dispute or claim in accordance with Section 16.
b. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each party hereby submits to the non-exclusive jurisdiction of the New York state and United States federal courts sitting in New York County, New York in any action or proceeding for entry of judgment on the award rendered by the arbitrator, and each party hereby waives any objection (Y) to the laying of venue in any such court or (Z) based on the inconvenience of any such court as a forum in any such action or proceeding.
c. Buyer and Seller will accept service by prepaid letter delivered by reputable courier in any arbitration proceeding involving Buyer and Seller.
d. Notwithstanding the other provisions of this Section 17, the parties may apply to any court of competent jurisdiction for preliminary or interim equitable relief, or to compel arbitration in accordance with this Section 17, without breach of this Section 17.
e. Seller shall not be compelled to participate in any consolidated or joint arbitration among Buyer and any customer of Buyer or any third Person, and Buyer hereby waives any right to seek such participation. However, in accordance with this Agreement, Seller may compel Buyer to assert any claims Buyer may have against Seller in a consolidated arbitration among Buyer, Seller, and Seller’s suppliers or other third Persons.