TERMS AND CONDITIONS OF SALE
1. Quoted Offers
“Quoted Offers” must be in writing and are provided as a proforma invoice of Seller and are valid for only 30-days from the issue date unless otherwise agreed to in writing by Seller. A Quoted Offer may be accepted only in writing by Buyer delivered to Seller within 30 days from issuance.Products and services must be scheduled for delivery within [4] months of the order date unless an exception has been agreed to in writing by Seller.
2. Payment and Security Terms
Payment is due in full prior to shipment. Buyer hereby grants, and Seller hereby reserves, a purchase money security interest in each product purchased hereunder, and in any proceeds thereof, for the amount of its purchase price if not paid in full. Upon request by Seller, Buyer shall sign any document required to perfect such security interest. Any tax, duty or assessment imposed by federal, state or any other national or international governmental authority on the sale, transportation and/or delivery of the products to Buyer shall be paid by Buyer, in addition to the purchase price in the Quoted Offer. Should Seller pay any such taxes, duties or assessments, Buyer shall reimburse Seller upon demand.
To the extent there exists any unpaid balance past the payment due date, interest at the rate of 1.5% per month (18% per annum) or the highest lawful rate, whichever is lower, will be charged thereon. If Seller refers Buyer’s account for collection or otherwise undertakes efforts to collect any amounts owed to it by Buyer, Buyer agrees to pay all reasonable attorneys’ fees, costs and expenses reasonably incurred in connection with such collection efforts.
3. Deliveries and Delivery Dates
All LTL or paletted shipments shall be partially insured and sent F.O.B. destination and all services (if any) shall be performed at the locations quoted. Small parcels shipments will be sent via UPS with standard insurance coverages provided by UPS. Delivery dates shall be quoted in accordance with Seller’s standard lead times. Short lead delivery offers, if feasible, will incur rush charges. All quoted delivery dates for products and services are estimates and subject to receipt of materials from Seller’s vendors within their quoted lead times and all customer supplied art designs, dimensions, quantities, signed print approvals, and installment payments as and when request by Seller. Delays in receipt of any of these or similar items requested from Buyer may incur rush charges and may extend delivery dates. Seller shall attempt to meet any quoted delivery dates but shall not be liable for its failure to meet such dates for the above cause or unforeseen circumstances or due to causes beyond its reasonable control including, but not limited to, acts of nature, acts of government, labor disputes, or delays in transportation.
4. Shipment, Packing, and Risk of Loss
Seller shall arrange shipping in accordance with its standard practices. Buyer may specify different shipping instructions acceptable to Seller up to 5 days before shipment. If Buyer specifies an alternate carrier at any time, Buyer shall instruct such carrier to provide Seller with a Bill of Lading in advance of shipment. Buyer is responsible to pay for all shipping and handling charges of Seller when invoiced. Invoices will include all of Seller’s handling charges as well as all warehouse and drayage charges ordered by Seller on Buyer’s behalf. Title shall pass to Buyer F.O.B. destination.
5. Orders, Changes, and Acceptance
Buyer and Seller agree to be bound by the dimensions, details, and finishes of any rendering made part of the Quoted Offer ordered by Buyer. However, if further definition of finishes is required during the production process it shall be agreed to by both parties. Final graphic layouts will be submitted for Buyer approval before production. Buyer will give timely approval to electronic proofs and test prints by dates requested or delays may incur rush charges or extend the delivery date. Change orders must be agreed to by Buyer and Seller in writing and may increase the total price of the order. Buyer requested change orders may result in delays and extend the delivery date and/or incur a rush charge. A Quoted Offer that is accepted by Buyer cannot be canceled by Buyer without Seller’s written consent, which consent shall be in Seller’s sole discretion.
6. Non-Conforming Products; Returns
Buyer shall notify Seller within one (1) business day after arrival of the products at their destination (or within such period as provided in Section 7 below) of any claim by Buyer that any products supplied by Seller hereunder do not conform to the applicable order, and Buyer waives all claims based upon the nonconformity of goods delivered unless a notice of such claim or complaint is made in writing and delivered to Seller within such period. Upon receipt of any such notice, Seller shall have a reasonable opportunity to inspect such products to confirm such claim and, if Seller agrees with the validity of such claim, Seller may, at its option, replace such non-conforming products with conforming products or issue to Buyer a credit or refund of the price paid by Buyer for such products. At Seller’s option, any non-conforming products shall be shipped to it in accordance with shipping instructions provided by Seller or, at Seller’s direction, be destroyed, and Seller shall be responsible for the cost of any freight, shipping or destruction costs incurred as a result of Buyer performing the foregoing actions in accordance with Seller’s instructions. This Section sets forth Seller’s sole obligation to Buyer with respect to the replacement or issuance of any credit or refund for any non-conforming Products.
7. Installation
If installation by Seller at customer site is expressly included in the order, then this section shall apply. Final installation services only shall be performed and occur at the agreed upon site designated in the order. Buyer shall be responsible for providing a job site which is safe, accessible, clean, clear and free of debris prior to installation. Electric current, heat, hoisting and/or elevator service shall be furnished by Buyer. Adequate facilities for off-loading, staging, moving and handling of products shall be provided by Buyer. Following the completion of installation by Seller or its agent if installation is required, Buyer shall inspect the products and services and shall, within one (1) business day thereafter give written notice to Seller of any defect or other matter or thing by reason whereof Buyer may allege that the products and services are non-conforming. If Buyer shall fail to give such notice within such time period, it shall be deemed to have accepted the products and services and shall be obligated to pay for the products and services in accordance herewith.
8. Intellectual Rights
Seller shall retain intellectual property rights for any and all designs used in fulfilling this order, including for promotional and marketing purposes.
Buyer acknowledges and agrees that Seller owns and will continue to own, or is the licensee or co-owner of, all right, title and interest in and to certain intellectual property embodied in, appurtenant to or related to the products and its designs, including patent rights (including patent applications and disclosures), all copyright rights, rights of priority, trade secret rights, trademarks and the goodwill resulting from the use thereof (including with respect to all suggested modifications, design changes or improvements), and know-how, regardless of whether the products are separate or combined with any other products.
9. Order of Precedence
These Terms and Condition take precedence over Buyer’s additional or different terms and conditions, to which notice of objection is hereby given. Acceptance by Buyer is limited to these Terms and Conditions unless otherwise superseded by terms and conditions accompanying a Quoted Offer. Neither Seller’s commencement of performance nor delivery shall be deemed or construed as acceptance of Buyer’s additional or different terms and conditions. Buyer’s purchase and Seller’s offer of products and services hereunder represents acceptance of these Terms and Conditions, which together with the applicable Quoted Offer constitute the entire understanding between the parties and supersede any previous communications, representations, or agreements by either party whether oral or written. No change or modification of any of the terms or conditions herein shall be valid of binding on either party unless in writing and signed by an authorized representative of each party.
10. Indemnity
Buyer agrees to indemnify and save harmless Seller from any and all loss or claims for loss or damage to Seller or other persons or property caused by Buyer’s (or its agent’s or representative’s) misuse or defective installation of the products.
11. Arbitration
Any controversy or claim arising out of or relating to these Terms and Conditions, or the breach thereof, shall be determined by final and binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules and Mediation Procedures. The award rendered by the arbitrator shall be final and binding on the parties and may be entered and enforced in any court having jurisdiction. Judgment on the award shall be final and non-appealable. The seat or place of arbitration shall be Loudoun County, Virginia. The arbitration shall be conducted
and the award shall be rendered in the English language. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. The arbitrator will have no authority to award punitive damages or consequential damages.
12. Miscellaneous
Seller’s failure to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights. No government terms shall be included or binding hereunder unless agreed to by both parties. Stenographical, typographical, and clerical errors are subject to correction. Any required notices shall be given in writing at the address of each party herein or as later designated. Buyer acknowledges that any transaction between Buyer and Seller are and will be commercial transactions. A waiver by either party of any breach or failure to enforce any of the terms or conditions of these Terms and Conditions shall not in any way affect, limit or waive such party’s right at any subsequent time to enforce strict compliance with such term or condition or any other term or condition herein.
13. LIMITED PRODUCT WARRANTY
THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE. THE LIMITED WARRANTY CAN ALSO BE FOUND ONLINE AT www.adaptivdc.com/terms. WE WARRANT THAT DURING THE WARRANTY PERIOD, THE PRODUCT WILL BE FREE FROM MATERIAL DEFECTS IN MATERIALS, WORKMANSHIP, AND FUNCTION. WE LIMIT THE DURATION AND REMEDIES OF ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE TO THE DURATION OF THIS EXPRESS LIMITED WARRANTY. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. OUR RESPONSIBILITY FOR DEFECTIVE GOODS IS LIMITED TO REPLACEMENT OR REFUND AS DESCRIBED BELOW IN THIS WARRANTY STATEMENT.
WHO MAY USE THIS WARRANTY?
AdaptivDC, LLC, located at address 42395 Ryan Road, Suite 112 / PMB 212, Ashburn, VA 20148, (”we”) extend this limited warranty only to the customer who originally purchased the product (”you”). It does not extend to any subsequent owner or other transferee of the product.
WHAT DOES THIS WARRANTY COVER?
This limited warranty covers material defects in materials, workmanship, and function of the myWall product, accessories, and extensions (the “product”) for the Warranty Period as defined below.
WHAT DOES THIS WARRANTY NOT COVER?
This limited warranty does not cover any defect or damage due to: (a) transportation; (b) storage; (c) installation; (d) non-recommended use or conditions; (e) failure to follow the product instructions or to perform any preventive maintenance; (f) modifications or repairs; (g) normal wear and tear; (h) exposure to outdoor weather or climate elements; (i) inconspicuous defects; and (j) external causes such as accidents, abuse, or other actions or events beyond our reasonable control.
“Non-recommended use or conditions” includes, but is not limited to, mishandling or misuse, damage from excessive heat or moisture conditions, exposure to ultraviolet light, physical or chemical abuse, or thermal shock due to direct contact with hot items.
Further, this limited warranty does not cover variances related to color, shade, particle structure, pits, fissures, surface irregularities or other variances that may occur in the manufacturing process or through degradation due to exposure to sunlight, heat/cold, moisture, or other natural or artificial elements. Given the nature of the myWall rubberwood material and manufacturing process, there will be minor manufacturing variances in color, shade, gloss level, and particulate structure, and size when compared to any samples. This limited warranty does not cover immaterial variances in color, edging, seam appearance, performance, or any other opinions that are based on personal preference.
This limited warranty does not cover any defect or damage that is discoverable upon a reasonable visual inspection of the product upon receipt during the period provided in Section 6 and 7 above. All rights and remedies related thereto are covered solely under Section 6 above.
WHAT IS THE PERIOD OF COVERAGE?
This limited warranty begins on the date of your purchase and lasts for one year (the “Warranty Period”). The Warranty Period is not extended if we repair or replace the product. We may change the availability of this limited warranty at our discretion, but any changes will not be retroactive.
WHAT ARE YOUR REMEDIES UNDER THIS WARRANTY?
With respect to any defective product during the Warranty Period, we will, in our sole discretion, either: (a) repair or replace such product (or the defective part) free of charge, or (b) refund the purchase price of such product. We will also pay for shipping and handling fees to return the repaired or replacement product to you if we elect to repair or replace the defective product.
HOW DO YOU OBTAIN WARRANTY SERVICE?
To obtain warranty service, you must call or email our Customer Service Department at info@adaptivdc.com during the Warranty Period to obtain a case number. No warranty service will be provided without a case number.
14. LIMITATION OF LIABILITY
THE REMEDIES DESCRIBED ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE LIABILITY FOR ANY BREACH OF THIS LIMITED WARRANTY. OUR LIABILITY SHALL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL
AMOUNT PAID BY YOU FOR THE DEFECTIVE PRODUCT, NOR SHALL WE UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
