GENERAL TERMS AND CONDITIONS
- General: All offers and sales by Hunter Douglas Facades, Inc. (“Seller”) to Customer, with respect to products manufactured or otherwise supplied by Supplier (“Products”), are expressly conditioned on customer’s acceptance of these terms and conditions exclusively. Any purchase order or other communication from customer that contains terms or conditions in addition to or inconsistent with these terms and conditions will not apply to the purchase of any Products by customer or be used to waive, modify, vary, explain or supplement all or any part of these terms and conditions and are hereby objected to and rejected by Seller, unless expressly agreed upon in writing by Seller. Seller’s general terms and conditions of sale and delivery also apply if seller carries out the delivery to the Customer without expressly agreeing in writing to general terms and conditions of the Customer conflicting with or deviating from Seller’s general terms and conditions of sale and delivery. Seller’s employees are not authorized to make additional oral agreements or provide oral promises that extend beyond the content of the written agreements.
- Price: Written quotations are subject to change after 30 days without notice until a signed purchase order is received. Customer shall bear all applicable taxes, license fees and similar charges relating to the purchase of the Products. The purchase price may not include such taxes, fees and charges, and Seller reserves the right to separately invoice customer for all applicable taxes, fees and charges and customer agrees that these amounts shall be immediately due and payable. Customer will not have the right of offset against the purchase price of any Products nor the right to back charge any agreement or sales document unless Seller has given its prior written consent.
- Product Quality: Customer agrees and understands that clay is a natural material so variations in size, color, texture and tonality may occur and is a desired and inherent characteristic of ceramic products. In addition, tolerances customary in trade with regard to size and thickness do not constitute a reason for a claim of the customer. Crazing is a typical characteristic of many glazed ceramic tiles and is not a defect and does not impair the utility or value of the tiles. Glazed tiles may craze before or after installation and occasionally even years later.
(a) Liability. Seller is not liable for any third party design, engineering or installation services or products, including, without limitation, any building wall system into which the Products are incorporated. SELLER WILL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL SPECIAL OR INDIRECT DAMAGES, LOST PROFITS OR OTHER LOSSES OF CUSTOMER OR ANY THIRD PARTY IN ANY WAY RELATING TO ANY PRODUCT. Notwithstanding anything to the contrary contained herein, any written warranty separately issued by Seller for the Products shall be incorporated herein as if a part of the terms hereof.
(b) Mold Build Up. It is essential that a properly designed building wall system, based upon the specifications and recommendations of Customer’s professional architect and/or engineer, and taking into account, among other things, building materials to be used, be utilized when selecting and installing one of our rain screen facades. SELLER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED AS TO THE ABILITY OF OUR RAIN SCREEN PRODUCTS TO PREVENT, IN WHOLE OR IN PART, THE PRESENCE OF MOLD OR FUNGUS IN THE WALLS OF BUILDINGS UTILIZING OUR PRODUCTS, AND SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY, OF WHATEVER NATURE, RELATING TO THE PRESENCE OF ANY MOLD OR FUNGUS WHICH MAY OCCUR.
(c) Design Advice. Seller may provide application assistance, design advice and/or reliability or performance data in connection with CUSTOMER’S purchase of the Products. Providing any of these items shall not expand or otherwise affect any warranty issued by Seller and no obligation or liability shall arise from Seller’s provision thereof. The specification and recommendations of CUSTOMER’S professional architect and/or engineer should govern all matters relating to the design and installation of CUSTOMER’S building wall system and the use of the Product in connection therewith AND CUSTOMER ACKNOWLEGES THAT THE SELLER HAS NO RESPONSIBILITY OR LIABILITY WITH RESPECT TO SUCH SPECIFICATIONS OR RECOMMENDATIONS.
(d) Back charges or change orders. In the event a change order or back charge is necessary, Customer is required to obtain written approval from Seller of a written, not-to-exceed estimate for change order or back charge. Estimate for change order or back charge should include 1) estimate of hours required, 2) hourly rate to be applied and 3) any additional non-labor charges. Once estimate is approved, the Customer is authorized to spend up to that estimate. Any additional charges will need separate approval.
- Payment: Payment terms to be established upon completion of credit approval process. Due to custom nature of our product, our standard credit terms require a down payment before material is produced for project. We require a 15% down payment. The exact amount of this down payment will be determined by credit approval process. A credit application will be provided by the HD Facades project management team. Payments not received from customer within 90 days will bear interest at the rate of 2% per month. If Customer defaults in any payments when due, Seller reserves the right to defer delivery or cancel the order. Seller reserves the right to ship its order and make collection by sight draft with bill of lading attached or on a C.O.D. basis or any other terms. Seller shall be entitled to reimbursement from Customer for Seller’s costs of collection, including reasonable legal fees and disbursements.
- Delivery: Delivery dates provided by Seller are estimates only. Seller will make reasonable efforts to deliver in accordance with such dates; however, Seller will not be liable for failure to deliver as estimated. Customer change orders may affect delivery times and project completion dates, especially when added during Seller’s production of a Product. Seller may make delivery installments, separately invoiced and payable without regard to subsequent deliveries. Delay in delivery of any installments will not relieve customer of its obligations to accept the initial or any remaining installments. If shipments are delayed by Customer, invoices may be rendered on the dates Seller is prepared to make shipments.
- Risk of Loss and Title: Products will be shipped DDP customer’s facility or job site, with all risk of loss for the Products passing to customer upon delivery to Customer; provided however, that products held by Seller as a result of Customer’s inability or refusal to accept delivery will be held at customer’s risk, cost and expense. Customer assumes all of the obligations and risks of an absolute owner and agrees to indemnify and hold harmless Seller from any and all loss or damage or claim for loss or damage to persons or properties caused by reasons of the use or possession of the Products. Title to the Products will pass to customer upon Seller’s receipt of payment of invoices for the Products.
- Security Interest: Customer hereby grants a priority lien and security interest in the Product (including all accessions, accessories, parts, supplies and replacements therefore) and the proceeds thereof until all obligations of customer to Seller from time to time are satisfied in full. Customer appoints each officer of Seller as an attorney-in-fact for Customer for the purpose of executing and filing each financing statement or other documents necessary to perfect such security interest. Upon the failure of Customer to pay the purchase price for any Products when due, or to perform any of Customer’s obligations under these terms and conditions, Seller will have all rights and remedies of a secured party under the Uniform Commercial Code of the State of Massachusetts and any other applicable law.
- Inspection: Customer shall inspect the Products at delivery and shall notify Seller of any defects or discrepancies within seven (7) days of receipt of the Products. Failure to provide any such notice within such time shall be deemed an acceptance in full of any such delivery. If Products with special characteristics are ordered, which can not be found without special experimental check, the packaging of the goods must be checked for the presence of a notation that such special characteristics exist. If no such notation exists Customer must notify Seller within said seven (7) day period. If Seller is not so notified, Seller shall not be liable for the absence of the special characteristic. If customer notifies Seller of any defective Products within such seven (7) day period and it is determined by Seller that the Product is defective, Seller will either, in its sole discretion, replace the Product only or credit customer in the amount of the purchase price of the Product.
- Force Majeure: Seller will not be liable for any delay or failure in performance of any order, in the delivery or shipment of any Product or for any damages or losses suffered by Customer or any third party which are caused by, or in any manner arises from, directly or indirectly, in whole or in part, any federal, provincial or municipal action, statute, ordinance or regulation, labor disturbances, embargos, storms, fires, explosions, acts of God or public enemies, inability to obtain products from a suppliers, accidents or breakdown to, or mechanical failure of, machinery or equipment, changes in economic conditions, delays or interruptions in transportation, or any other causes beyond Seller’s control. Upon any such delay or failure Seller may, in its sole discretion and without any liability to customer, delay the performance of, partially perform, or cancel any affected order in whole or in part.
- Successors and Assigns; Severability: These terms and conditions will be binding upon the parties and their respective successor and assigns; provided, however, that Customer may not assign any of customer’s rights or obligations hereunder without Seller’s prior written consent, which consent may be withheld in Seller’s sole discretion. If any provision of these terms and conditions is held by a court of competent jurisdiction to be unenforceable, the remaining provisions of these terms and conditions will remain in full force and effect.
- Default: If customer (a) fails to pay any amount due to Seller when due, (b) fails to observe or perform any of its other obligations under these terms and conditions, (c) takes any action that in Seller’s opinion adversely affects the name, reputation or goodwill of Seller or its Products or (d) becomes insolvent, is adjudicated bankrupt, voluntarily files or permits the filing of a petition in bankruptcy, makes an assignment for the benefit of creditors, seeks any similar relief under any bankruptcy laws or related statutes or a receiver is appointed for its assets, then, at Seller’s sole option, amounts due or to become due from customer to Seller may become immediately due and payable, and concurrently, or in the alternative, Seller may terminate any existing order between the Parties in whole or in part, defer shipment or delivery of any Products, sell any part of any undelivered Products and exercise any other remedies available to Seller under applicable law.
- Governing Law; Jurisdiction; Venue: These terms and conditions and any other documents or agreements entered into between the parties will be governed by and construed according to the laws of the State of Utah, without reference to the principles of conflicts of law. Each of the Parties hereby irrevocably and unconditionally (a) consents to submit to the exclusive jurisdiction of the United States District Court for the District of Utah or the applicable state court located in the State of Utah, County of Salt Lake for any action or proceeding arising out of or relating to the sale of Products to customer (b) waives any objections to the laying of venue of any such action or proceeding in such courts and (c) waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
- Costs and Expenses: Customer will be responsible for all costs and expenses, including reasonable attorneys’ fees and disbursements, incurred by Seller in enforcing any term or condition herein and customer will indemnify and promptly reimburse Seller for such costs and expenses.