Terms and Conditions of Sale
1. Contract Terms
All orders for Products or components (“Products”) sold by
Mechoshade Systems, LLC or by Springs Window Fashions, LLC
under its “SWFcontract” program (in either case, the “Seller”)
must be submitted to Seller in a Seller-approved manner. All
orders are subject to acceptance by Seller at its sole discretion,
notwithstanding any prior quote or offer to sell. Acceptance of
any order by Seller is expressly conditioned on Buyer’s assent
to the terms and conditions set forth herein ("Terms") and the
waiver by Buyer of any terms and conditions contained in any
order form, confirmation, shipping request, electronic order via
EDI or any other communication of Buyer, whether previously
or hereafter delivered to Seller, which either add to, differ from,
modify, conflict with or are otherwise inconsistent with any term
or condition herein. Seller hereby gives notice of its objection to
any such additional or different terms or conditions in any such
communication. Buyer’s failure to object in writing to these Terms
prior to delivery to Buyer of the Products purchased hereunder
will constitute agreement by Buyer to these Terms. References
herein to “written” communications or documents shall include
electronic communications and submissions, such as through
an EDI portal. Typographical or clerical errors including but not
limited to price lists, quotations, specifications, printed documents
or publications, order acknowledgments are subject to change
and/or correction and change without notice. These Terms do not
constitute a franchise relationship and do not grant any trademark
rights or any other expressed or implied license.
2. Products
Seller may furnish substitutes for Products provided such
substitutions will not materially affect the technical soundness,
design intent or performance of such Products.
3. Pricing
Unless otherwise indicated in writing, prices are for materials
and/or fabricated Products only, ex-works Seller’s factory, with
standard carton packaging and do not include the cost of shipping,
installation, shop drawings or other costs, and do not include any
federal, state, or local taxes or other taxes as well as duties all
duties, import fees or other assessments which are responsibility
of Buyer. Costs for special packaging and/or handling requested by
Buyer shall be the responsibility of Buyer. Prices and specifications
are subject to change without notice. Written quotations expire
180-days from the date of the quotation, unless otherwise
specified in the quotation. Seller must agree in writing to any
proposed postponement of the delivery date for a previously
accepted order, and if so agreed, the price that applies to the order
shall be the price in effect on originally scheduled delivery date.
Orders are subject to over-runs as defined on the applicable quote
and/or order confirmations. In the event that Buyer requests to
postpone the delivery date of a previously accepted Order, Seller
reserves the right, at its sole discretion, to fabricate, bill, and hold,
with payment due from date of invoice, in accordance with credit
terms, shipped or unshipped.
4. Order Cancellations and Changes; Returns; Advanced
Notifications
Except as otherwise expressly provided herein, all sales are final
upon the parties’ execution of Seller’s written order confirmation
and may not be canceled or changed without written approval of
Seller, which it may grant, deny or condition at its sole discretion.
C20000_Terms and Conditions of Sale
Last Updated: 1/9/20
Without limiting the generality of the foregoing, no Products may
be returned to Seller without Seller’s prior written authorization.
Credit for Products returned with Seller’s authorization will
be at the original invoice prices less a minimum restocking
charge of at least twenty five percent (25%) set at Seller’s sole
discretion; provided however, that if the returned Products are
damaged, discontinued, non-standard or manufactured to Buyer’s
specifications, or if the order is unusually large (as determined
by Seller), then no credit for returned Products will be given. All
authorized returns shall be C.I.F. Seller’s original point of shipment
or such other destination as Seller may specify. Special-order
and non-standard items shall be paid in full at the quoted price.
Engineering, design, and development charges may also apply.
In the event a governmental action (including the imposition of
tariffs) materially affects the cost of the sale of Products, Seller
may at its option cancel Buyer’s order or any part thereof. Any
advanced notifications submitted pursuant to Mechoshade
Systems, LLC’s “Master File” program or Springs Window Fashions,
LLC’s “Future Sales Order Requirement” (FSOR) program shall be
subject to the terms and conditions of those respective programs.
5. Payment and Taxes
All invoices, whether partial or in full, shall be due and payable
in full by Buyer pursuant to the terms set forth thereon. Invoices
not timely paid are subject to an interest charge of 1.5% per
month on any unpaid balance or the maximum rate allowed by
law, (whichever is lower), which interest charges shall accrue
beginning on the invoice due date. If Buyer (i) becomes insolvent,
files or has filed against it a petition in bankruptcy, makes any
assignment for the benefit of creditors, or has a receiver or trustee
appointed for it or its property, (ii) takes action to liquidate or
otherwise cease doing business as a going concern, (iii) undergoes
a change in ownership, (iv) fails to provide adequate assurance
or security for credit extended, or (v) takes any other action that
Seller determines in its sole discretion adversely impacts the
conditions under which credit was extended, then Seller may, at
its election, (a) cancel all unfilled orders without notice without
liability for damages from Buyer and Buyer shall remain liable
for all unpaid accounts including service charges; and/or (b)
require that all amounts outstanding from Buyer hereunder shall
at Seller's option become immediately due and payable. Buyer
shall pay all undisputed invoices or portions thereof regardless
of any dispute that may exist as to other delivered or undelivered
Products. With respect to any disputed invoice, Buyer shall pay
all amounts not in dispute. Buyer expressly waives the right to
assert any offset or counterclaim with respect to amounts due
under any invoice issued by Seller hereunder. Buyer agrees to
pay all costs of collection, including (but not by way of limitation)
all court costs and reasonable attorney’s fees. Seller reserves
the right to apply any rebate, unapplied cash, or open credit to
unpaid invoices if Buyer’s account has a past due balance over 61
days from the due date (as opposed to invoice date) or contains
disputed liabilities. Buyer shall make and remit any payments due
to Seller without deduction of or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other
charges of whatever nature ("Taxes") now or hereafter imposed by
any jurisdiction or by any political subdivision or taxing authority
thereof or therein with respect to such payments and all interest,
penalties or similar liabilities with respect thereto. If Buyer or
any other person is required by any law or regulation to make any
deduction of, or withholding on account of, any Taxes from any
payment due to Seller, Buyer shall, together with such payment,
pay such additional amount ("gross up") as to ensure that Seller
1
Terms and Conditions of Sale
receives full payment. Buyer represents and warrants to Seller
that the full amount of any such deductions or withholding shall
be accurately and timely paid over to the relevant authorities and
Buyer shall promptly forward to Seller copies of official receipts
or other evidence satisfactory to Seller regarding such payment.
Buyer shall also agree to fully indemnify and hold Seller harmless,
and reimburse Seller upon its written request, for the amount of
any Taxes so levied or imposed and paid by Seller. Notwithstanding
the generality of the forgoing, Buyer shall be responsible for the
payment of any federal, provincial, state or local tax (excluding
taxes based on Seller’s income or profits) that results from the
transfer of title or sale or delivery of Products hereunder unless
a valid and correct tax exemption certificate is furnished to Seller
prior to delivery.
6. Credit
At any time and in its sole discretion, Seller may limit, condition
or cancel the credit of Buyer and may require cash payment in
advance or adequate assurances of performance from Buyer.
7. Shipping and Delivery
Specified delivery dates are Seller's best estimates and are
not guaranteed. Seller will use reasonable commercial efforts
to ship by the estimated ship date communicated in the order
acknowledgement. Deviation from estimated shipping schedules
shall not entail penalties or damages including without limitation
incidental or consequential damages resulting from late shipments
or deliveries, nor shall they be grounds for cancellation of the
order. All shipments shall be EX WORKS unless otherwise stated
on a quote, order acknowledgement or other Seller-generated
document or written communication. Seller shall select the
billing, routing, and method of transportation if not specified on
Buyer’s purchase order and confirmed in writing by Seller. Costs
for special packaging and/or handling requested by Buyer shall
be the responsibility of Buyer. Seller will not defer deliveries at
Buyer’s request unless Buyer agrees to indemnify Seller against all
loss and additional expense incurred by Seller in connection with
such deferred deliveries, including, but not limited to demurrage,
handling, storage, insurance and similar charges. Transfer to
storage shall be considered delivery for all purposes hereunder,
including invoicing and payment and Buyer shall bear all risks of
loss or damage to Products during storage. Seller may deliver
Products in partial shipments and reserves the right to invoice
for partial deliveries. Seller assumes no responsibility for insuring
shipments unless specifically agreed to in writing, in which case
the cost of insurance shall be for Buyer’s account.
8. Title, Risk of Loss and Security Interest
Risk of loss on all Products shall pass to Buyer at the point of
shipment. However, Seller shall retain a security interest in the
products until fully paid and Buyer agrees to perform all acts,
which may be necessary to perfect and assure the security
interest in such products by Seller. In the event that Seller
wishes to file a security interest in the Products, pursuant to the
Uniform Commercial Code or local code requirements, Buyer
hereby constitutes and irrevocably appoints Seller its agent and
attorney-at-fact for the purpose of executing any and all financing
statements, notices and other documents that may be necessary
from time to time for Seller to perfect and maintain the security
interest reserved herein.
C20000_Terms and Conditions of Sale
Last Updated: 1/9/20
9. Inspection
Buyer shall promptly inspect all Products upon delivery. Any
potential claims for damage from freight carrier must be
documented in accordance with Seller's published freight claim
guidelines and noted immediately upon delivery. Concealed
damage must be notified within 5 days of delivery. Anything
herein to the contrary notwithstanding, to the extent that
any defects, shortages or nonconformities in Products are
discoverable by inspection upon delivery of Product to Buyer,
all obligations of Seller to Buyer with respect to such defects,
shortages or nonconformities shall be deemed as satisfied, and
all Products shall be deemed to be free of such defects, shortages
or nonconformities, unless Buyer notifies Seller of such defects,
shortages, or nonconformities in writing prior to the installation
of the units and not more than sixty (60) days after the date of
delivery. Without limiting the generality of the foregoing, prior
to installing Products, Buyer shall visibly inspect the Products
for damage and check the Products for correct configuration and
proper fit in accordance with Seller’s installation instructions.
Anything herein to the contrary notwithstanding, Seller shall
not be liable for any loss, damage or expense resulting from the
installation of damaged Products or Products of incorrect length
or improper fit.
10. Limitation of Damages and Remedies
The sole and exclusive remedy of Buyer and the sole and
exclusive obligation of Seller for any breach of contract claim
that Products delivered do not conform to the accepted order
shall be either the return of consideration paid by Buyer to Seller
for such non-conforming Product, or upon Seller’s election,
the delivery of conforming Products to Buyer. With respect
to Seller’s noncompliance with any other obligation of Seller
hereunder, the sole and exclusive remedy of Buyer and the
sole and exclusive obligation of Seller will be as Seller in its sole
discretion will determine as follows: (1) Seller may elect to cure
such noncompliance within a reasonable period of time, or (2) if
Seller fails to cure such noncompliance, Buyer may recover an
equitable amount not to exceed the aggregate of the amounts
paid by Buyer to Seller for the Product that was the subject of
Seller’s noncompliance. Such limitation shall apply regardless
of whether Seller’s liability arises in contract, tort (including,
without limitation, negligence or strict liability) or otherwise,
and Buyer releases Seller from all claims and liabilities in excess
of this limitation. Buyer waives all other remedies, statutory
or otherwise, including, without limitation, the remedies of
specific performance and replevin. Any action brought by
Buyer in connection with Seller’s performance hereunder
must be commenced within six (6) months after such cause of
action accrues or it will be deemed waived. In no event shall
Seller be responsible for consequential, incidental, indirect or
special damages or for the costs of labor, freight, installation,
reinstallation, or removal of Seller Products or components,
access to the work, including, but not limited to, travel to and from
the site, ladders, rigging, or scaffolding of any type, or penalties or
liquidated damages imposed by general contractors or other third
parties.
2
Terms and Conditions of Sale
11. Warranty
Seller’s warranty appears on the Products, in the packaging
containing the Products or on its website and is conditioned upon
installation in strict compliance with Seller’s specifications and
recommendations. Should any Products covered by this warranty
prove defective during the warranty period, Buyer shall notify
Seller in writing of such defect promptly, but in no event later
than thirty (30) days after discovery, or ten (10) days after the
expiration of the warranty period, whichever is first to occur.
Seller's sole obligation, and Buyer's exclusive remedy, under the
warranty shall be limited to the repair or replacement, at Seller's
option, of any Product or component thereof covered by the
warranty which proves defective in materials of workmanship
during the warranty period; provided, however, that Seller shall
have no obligation with respect to any such defect unless Seller
is given written notice of the defect in the manner and within
the time provided above. If any defective Product or component
thereof covered by this warranty requires repair or replacement,
Buyer shall obtain a written return authorization from Seller and
thereafter deliver the defective Product or component to Seller's
warehouse, or to such other destinations as Seller may specify.
No claim against Seller shall be allowed for Products returned
hereunder without Seller's written authorization. The repair
or replacement of any Product or component pursuant to the
warranty shall not extend the term of such warranty beyond the
applicable warranty period. EXCEPT AS EXPRESSLY PROVIDED
IN THIS PARAGRAPH, SELLER MAKES NO REPRESENTATIONS
OR WARRANTIES OF ANY KIND, NATURE OR DESCRIPTION,
EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION,
ANY WARRANTY OF MERCHANTABILITY OR FITNESS OF
ANY PRODUCTS FOR ANY PARTICULAR PURPOSE, AND
HEREBY DISCLAIMS THE SAME. The warranty shall not apply
to: (i) normal deterioration due to wear and tear, (ii) alterations
or modifications in a manner not authorized by Seller in writing,
(iii) defects in the systems or application In which the Products
are installed, or (iv) any damage to or any failure of any Products
resulting from acts of God or conditions beyond reasonable
control of Seller, including (but not by way of limitation) accidents,
fire, misuse, abuse, negligence, improper installation, modification,
alterations, tampering, vandalism or failure to properly maintain
or service Products. In addition, the obligations of Seller under
this paragraph shall not include payment for (i) the cost of
maintenance, adjustments, installation, and startup, (ii) living and
traveling expenses of persons performing warranty service, (iii)
labor costs for the removal of Products from their application and
reinstallation, (iv) overtime labor requested by Buyer, or (v) other
miscellaneous expenses incurred by Buyer.
12. Force Majeure and Time of Delivery
Seller is not liable or responsible for delay or failure to perform
any of Seller's obligations to make delivery of Products occasioned
by (a) any cause beyond its reasonable control, including,
without limitation, a labor dispute, industry disturbance, fires,
unusually severe weather conditions, earthquakes, floods,
declared or undeclared war, epidemics, computer malfunctions
or sabotage, civil unrest, riots, lack of supplies, terrorism, delay
in transportation, governmental, regulatory or legal action, act
C20000_Terms and Conditions of Sale
Last Updated: 1/9/20
of God or (b) by acts or omissions of Buyer, including, without
limitation, Buyer's failure to promptly comply with the terms
of payment ("Excusable Delays"). The date of delivery must be
extended for a period equal to the time lost by reason of any of
the Excusable Delays. Buyer's acceptance of the Products shall
constitute a waiver of any claim for late delivery.
13. Indemnification
Buyer shall defend, indemnify, and hold Seller harmless from and
against any and all claims, demands, liabilities, losses, costs and
expenses (including, without limitation, reasonable attorney’s fees
and costs of investigation), irrespective of the theory upon which
based (including, without limitation, negligence and strict liability),
Seller may suffer or incur as a result of any claims, demands,
or actions against Seller by third parties arising out of the sale,
delivery, installation or servicing of Products sold or delivered
to Buyer hereunder or in connection with their use, condition,
possession, installation, ownership, selection, transportation,
loading unloading, maintenance or return, including, without
limitation, claims for injury to person or property (including death);
provided, however, that Buyer shall nave no liability to Seller
hereunder for damages, losses or expenses resulting solely from
Seller’s negligence.
14. Compliance with Laws, Regulations & Orders
Buyer warrants that it will comply at all times with all applicable
laws, ordinances, rules and regulations and when requested, shall
furnish evidence to Seller of such compliance, including without
limitation U.S. laws and regulations relating to exports, export
controls, and foreign corrupt practices.
15. Assignment
Buyer may not assign all or any portion of its rights hereunder,
or delegate or subcontract all or any portion of its obligation
hereunder, without the prior written consent of Seller. The rights,
restrictions and obligations hereunder shall inure to the benefit
of and be binding upon the parties hereto and their respective
successors and permitted assigns.
16. Severability
The invalidity, in whole or in part, of any article or paragraph
hereof shall not affect the validity of the remainder of such article
or paragraph or of any agreement resulting therefrom.
17. Governing Law; Jurisdiction
The validity, construction and performance of these terms are
governed by, and must be construed in accordance with, the
laws of the state of Wisconsin, without regard to its conflicts
of law provisions. The U.N. Convention on Contracts for the
International Sales of Goods does NOT apply to these terms
and all of these terms must be construed in accordance with the
Uniform Commercial Code as enacted in the State of Wisconsin.
Buyer irrevocably submits and agrees to the jurisdiction of the
state and federal courts of the State of Wisconsin in any action,
suit or proceeding related to or in connection with these terms or
the Products.
3