Custom Storefronts, Inc. – Terms and Conditions of Sale

CUSTOM STOREFRONTS, INC. — TERMS AND CONDITIONS OF SALE (v.3)

Seller’s “Standard Material Proposal” (the “Proposal”) and these “Terms and Conditions of Sale” (“terms and conditions”), shall apply to all transactions for the sale of Goods by Seller to Buyer. The specific terms of the Proposal shall control any conflicts in terms between the Proposal and these terms and conditions. As used herein, “Seller” means Custom Storefronts, Inc.; “Goods” means the goods, materials and items (including shop drawings) of an order; and “Buyer” means the person ordering Goods from Seller.

  1. ENTIRE AGREEMENT. These terms and conditions, and those in Seller’s Proposal, supersede all previous written or oral understandings and agreements between the parties, and are the only ones under which Seller agrees to sell Goods. No other terms or conditions in any way altering or modifying Seller’s Proposal and these terms and conditions, whether in Buyer’s acceptance, purchase order, RFP, or other (“Buyer’s Forms”), shall be binding upon Seller, and shall be considered void. Buyer’s placing of an order, with or without Buyer’s signature on Seller’s Proposal, constitutes Buyer’s unqualified acceptance of Seller’s terms, and Seller’s waiver of all other terms proposed in Buyer’s Forms or otherwise.
  2. ORDERS. Buyer’s acceptance of Seller’s Proposal constitutes Buyer’s non-cancellable commitment to purchase the Goods of that order. Buyer agrees to pay all reasonable costs and expenses (including overhead, and a $1500 minimum charge for shop drawings preparation) incurred by Seller with any modification or cancellation of Buyer’s order that Seller, in Seller’s sole discretion, may agree to accept. Seller shall use reasonable efforts to meet quoted lead times of a Proposal, but Buyer agrees that the same are only estimates. Seller shall not be liable for any failure of or delay in the performance of Seller’s obligations of all or any part of an order for the period that such failure or delay is due to causes beyond Seller’s reasonable control, including but not limited to severe weather, natural disasters, acts of God, war, acts of terrorism, strikes or labor disputes, embargoes, government orders or because of or related to any other force majeure event.
  3. GOODS AND PRICE. The price includes only the Goods of the Proposal, and unless itemized in Seller’s Proposal, the order and price DOES NOT include any: applicable taxes, freight, permits, fees, performance/payment bonds, engineering, installation of Goods, or other third-party charges, all of which shall be Buyer’s responsibility. The price of an order will be increased to cover any costs (plus overhead and profit) occasioned by Buyer’s requested changes to the Goods, schedule, or any other item of performance of an order which Seller, in its discretion, agrees to accept.
  4. DELIVERY. Goods are sold F.O.B. Seller’s dock, freight prepaid, or coordinated to third-party carrier to Buyer’s account. All risks of loss pass to Buyer upon tender of Goods to Buyer or a carrier at Seller’s dock, regardless of whether Seller pays/prepays or invoices shipping charges to Buyer.
  5. WARRANTIES AND DISCLAIMERS. Seller warrants only that the Goods will meet Seller’s written specifications at the time of tender of the Goods, and that Seller will convey good title thereto. The foregoing is Seller’s sole warranty, and there are no third-party beneficiaries to this warranty. Seller expressly represents that its shop drawings are not “certified” to any standard, and are provided solely for general knowledge, reference and illustration purposes, without warranty or representation of compliance with any building code or other requirement or specification. Buyer is responsible for verifying with Buyer’s licensed engineers, architects, and other professionals that all Goods (including any shop drawings Seller may provide) are acceptable and appropriate for Buyer’s use and purposes, as well as for each and every aspect of the design, application and installation of the Goods. SELLER DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE.
  6. INSPECTION AND REJECTION. Buyer shall inspect the Goods within 2 days of receipt of the Goods at Buyer’s shipping destination. If Buyer rejects the Goods, Buyer must notify Seller in writing of all details of any defects and non-conformities within 3 days of receipt. Buyer’s failure to so act constitutes (a) Buyer’s acknowledgement that the Goods are of good quality and meet specifications and (b) Buyer’s irrevocable acceptance of the Goods.
  7. LIMITATION OF LIABILITY. SELLER SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO BUYER OR ANY THIRD-PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION: LOST PROFITS OR REVENUES, INCREASED COSTS, COST OF CAPITAL OR PURCHASING POWER, SUBSTITUTE OR ADDITIONAL PRODUCTS OR GOODS OR LABOR, INTERRUPTION OR DELAY IN STARTUP OR BUSINESS OPENINGS, OR ANY DAMAGES ARISING OUT OF BUYER’S BREACH OF CONTRACTS WITH OTHERS. CUSTOM STOREFRONTS’ AGGREGATE TOTAL CUMULATIVE LIABILITY UNDER THIS LIMITED WARRANTY IS LIMITED TO THE PURCHASE PRICE OF THE DEFECTIVE PRODUCT. SELLER’S SOLE OBLIGATION FOR DEFECTIVE OR NON-CONFORMING GOODS PROPERLY REJECTED IN ACCORDANCE WITH THESE TERMS (AND WHICH SELLER REASONABLY AGREES, OR ARE FOUND TO BE, DEFECTIVE OR NON-CONFORMING), SHALL BE (AT SELLER’S SOLE DISCRETION):
    1. REPAIR – CUSTOM STOREFRONTS MAY CHOOSE TO REPAIR THE DEFECTIVE PRODUCT. BUYER IS REQUIRED TO NOTIFY CUSTOM STOREFRONTS UPON DISCOVERY OF POTENTIAL DEFECT AND ALLOW CUSTOM STOREFRONTS THE OPPORTUNITY TO TROUBLESHOOT AND RESOLVE SAID DEFECT. AT NO TIME DOES THIS WARRANTY CONFER UPON THE BUYER OR ANY OTHER PARTY THE RIGHT TO PROCEED WITH REPAIR, REPLACEMENT OR RESTORATION, WITHOUT WRITTEN AGREEMENT WITH AN AUTHORIZED REPRESENTATIVE OF CUSTOM STOREFRONTS.
    2. REPLACEMENT – CUSTOM STOREFRONTS MAY CHOOSE TO REPLACE DEFECTIVE PRODUCT. REPLACEMENT OF PRODUCT IS LIMITED TO REPLACEMENT WITH PRODUCT OF LIKE GRADE AND QUALITY, PACKAGED AND SHIPPED VIA STANDARD GROUND TRANSPORTATION; ADDITIONAL COSTS FOR EXPEDITED TRANSPORTATION ARE THE RESPONSIBILITY OF THE BUYER. CUSTOM STOREFRONTS IS ONLY OBLIGATED TO PROVIDE REPLACEMENT PRODUCT IN ACCORDANCE WITH LEAD TIMES PROVIDED FOR ORIGINAL PRODUCT. ALL COSTS ASSOCIATED WITH THE REMOVAL OF DEFECTIVE PRODUCT AND INSTALLATION OF REPLACEMENT PRODUCT IS THE SOLE RESPONSIBILITY OF THE BUYER. CUSTOM STOREFRONTS RESERVES THE RIGHT TO REQUEST DEFECTIVE OR NON-CONFORMING GOODS BE RETURNED FOR INSPECTION AND QUALITY CONTROL REVIEW.
    3. REIMBURSEMENT – CUSTOM STOREFRONTS MAY CHOOSE TO REIMBURSE BUYER FOR DEFECTIVE PRODUCT. UPON RECEIPT AND INSPECTION OF DEFECTIVE PRODUCT, CUSTOM STOREFRONTS WILL ISSUE A CREDIT OR REFUND FOR THE COST OF THE DEFECTIVE PRODUCT. ANY TRANSPORTATION COSTS ASSOCIATED WITH THE ORIGINAL SHIPMENT WILL NOT BE INCLUDED IN THIS REIMBURSEMENT. ALL COSTS ASSOCIATED WITH THE REMOVAL AND CRATING OF DEFECTIVE PRODUCT ARE THE SOLE RESPONSIBILITY OF THE BUYER.
  8. BUYER’S INDEMNIFICATION. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BUYER SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND SELLER AND ITS AFFILIATES, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND INSURERS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, SUITS, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES), FOR ANY DAMAGE, INJURY, DEATH, LOSS OR DESTRUCTION OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSSES OF BUYER, ITS EMPLOYEES AND ITS AGENTS) RELATING TO OR IN ANY WAY ARISING OUT OF BUYER’S (OR ITS AGENT’S) INSTALLATION, APPLICATION, DESIGN, CONSTRUCTION, TRANSPORT, OR USE OF THE GOODS, WHETHER ARISING UNDER THEORIES OF WORKERS’ COMPENSATION, CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR FAULT OF ANY KIND. THE PARTIES AGREE THAT THIS INDEMNIFICATION SHALL APPLY TO LOSSES INCURRED BY THE PARTIES IN CONNECTION WITH CLAIMS BETWEEN THEM.
  9. WAIVER AND SEVERABILITY. Seller’s failure to enforce any provision of these terms and conditions shall not be construed as a waiver of Seller’s right to enforce that provision, or any other, at any other time. If any provision or paragraph contained herein is held to be illegal, invalid or unenforceable under present or future laws, such provision shall be fully severable, and the balance shall remain in full force and effect.
  10. RELATIONSHIP OF THE PARTIES, GOVERNING LAW, MISC. The relationship between Seller and Buyer is strictly one of seller and buyer, and neither these terms and conditions nor the transactions between Buyer and Seller shall in any way create a partnership, or joint venture. Seller’s Proposal, and these terms and conditions shall be interpreted and governed by the laws of the State of Kansas, without regard to any conflict of laws principles; and the federal and state courts of Johnson County, Kansas shall have exclusive jurisdiction over and venue over any suit that relates thereto. Buyer agrees to pay a carrying charge of the higher of 1.5% per month, or highest written contract rate allowed by law, on all amounts due and owing to Seller on any unpaid invoicing.