1. Applicability. These
general terms and conditions (these “Terms”) are the only
terms which govern the sale of any and all items (”Goods”) set forth on all
acknowledgements and
invoices (collectively invoices) from Alexander Sinclair, LLC (”Seller”) to the buyer who
is named
on the first page in the “Sold To” section of Seller’s invoices (”Buyer”). By making a
payment, in part
or in full, of the amount due on Goods, you agree to follow these Terms and Conditions and to be bound
by them. The Seller’s invoices along with these Terms (collectively, this “Agreement”)
comprise the
entire agreement between the parties, and supersede all prior or contemporaneous understandings,
agreements, negotiations, representations and warranties, and communications, both written and oral.
This Agreement prevails over any of Buyer’s general terms and conditions of purchase regardless whether
or when Buyer has submitted its own purchase order. Fulfillment of Buyer’s order does not constitute
acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
2. Order Submissions and
Cancellations. Seller will sell the Goods to trade
professionals only. Seller will not sell directly to clients of a design professional or the general
public (except that Seller may allow for sales to Seller’s employees at Seller’s sole and absolute
discretion). If Buyer is an Arizona business, Buyer must provide a completed and executed Arizona Form
5000A before Seller will submit the Goods for production. Buyer shall have three (3) business days from
the date of an invoice to notify Seller of any discrepancies with the Goods or any other errors in the
invoice. Seller shall submit the Goods for production upon receipt of payment as required by the invoice and
Buyer setting forth a delivery location for the Goods (the “Delivery Point”). In addition to the
foregoing, if the Buyer is providing the Buyer’s own materials (“COM”) no Goods that
require the COM
will be submitted for production until all of the COM associated with such Goods are received
by Seller. THERE ARE NO REFUNDS OR CANCELLATIONS ONCE THE GOODS ARE SUBMITTED FOR
PRODUCTION.
3. Payment Terms. Payment
terms are as set forth on the first page of Seller’s
invoices. Buyer is responsible for all shipping, receiving and storage fees and charges in addition to
the prices for the Goods as set forth on the Seller’s invoice. Seller will notify Buyer when either all or
a portion of Goods have been shipped by the manufacturer (the “Delivery Notice”). The
Delivery Notice
will state the Goods being shipped and the amount due with respect to those Goods. Payment of amount as
set forth in the Delivery Notice is due upon receipt of the Delivery Notice. If Buyer fails to pay the
balance due for such Goods as set forth in the Delivery Notice within ten (10) days of the date of the
Delivery Notice, Seller shall have the right to charge the amount due to the credit card on file for
the Buyer, in addition to all other remedies at law and equity. If Buyer does not pay the balance due,
Buyer shall be deemed to have rejected the Goods and Seller shall have all rights and remedies as
set forth in Arizona Revised Statutes §47-2703 which also includes the right to recovery any
commercially reasonable charges, expenses or commissions incurred in stopping delivery, in the
transportation, care and custody of the Goods after Buyer's deemed rejection of the Goods, in
connection with return or resale of the Goods or otherwise resulting from Buyer’s rejection of the Goods.
4. Shipping Fees. Buyer is
responsible for the payment of all shipping fees which may
be included in the amount due as specified on the Delivery Notice or invoiced separately by Seller. If
shipping fees are not paid within ten (10) days of the date on the Delivery Notice or the Seller’s
invoice, as the case may be, Seller shall have the right to charge the amount due to the credit card on file
for the Buyer, in addition to all other remedies at law and in equity.
5. Prices Exclude Sales Tax.
All Prices set forth in Seller’s invoices are exclusive
of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed
by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for the
payment and collection of all sales, use and excise taxes, and any other similar taxes, duties and charges
imposed on the Goods.
6. Delivery, Shipping and Title of
Goods. Buyer acknowledges that partial shipments
of Goods may be made to Buyer, without liability or penalty to Seller, and Buyer shall pay for that
portion or all of the Goods shipped whether such shipment is in whole or partial fulfillment of
an invoice. Delivery of the Goods shall be made FOB Origin from the furniture manufacturer’s facility
to the Delivery Point specified by Buyer on the first page of the Seller’s invoices. Title and risk of
loss passes to Buyer upon receipt of the Goods by the carrier at the furniture manufacturer’s facility.
7. Purchase Money Security
Interest. As collateral security for the payment of the
purchase price of the Goods and any shipping, receiving and storage fees, Buyer hereby grants to Seller
a lien on and security interest in and to all of the right, title and interest of Buyer in, to
and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from
time to time, and in all accessions thereto and replacements or modifications thereof. The security
interest granted under this provision constitutes a purchase money security interest under the Arizona
Uniform Commercial Code.
8. Non-Delivery. The quantity
of Goods as stated in the Delivery Notice is conclusive
evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence
proving otherwise. Seller shall not be liable for any non-delivery of the Goods (even if caused by
Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery of such Goods within 10
days of the date when the Goods would in the ordinary course of events have been received. Any
liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a
reasonable time or adjusting the invoice amount respecting such Goods to reflect the actual quantity
delivered.
9. Inspection and Rejection of
Nonconforming Goods. Buyer or Buyer’s agent or
receiver shall inspect the Goods within five (5) business days of receipt of such Goods (the
“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies
Seller in
writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or
other documentation as reasonably required by Seller. “Nonconforming Goods” means product
shipped that
is different than identified in the Seller’s invoice. If Buyer timely notifies Seller of any
Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with
conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any
reasonable shipping fees incurred by Buyer in connection therewith. Buyer shall ship, at its expense
and risk of loss, the Nonconforming Goods to Seller at such location as specified by Seller in writing. If
Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s
shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods
to the Delivery Point. Buyer acknowledges and agrees that the remedies set forth in the Section 9 are
Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under this Section 9,
all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods
purchased under this Agreement to Seller.
10. Limited Warranty. The
Goods are subject to the warranties of the manufacturer of
the Goods and only such manufacturer’s warranties shall apply to such Goods. SELLER MAKES NO
WARRANTY
WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS
OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF
TRADE OR OTHERWISE.
11. Limitation of Liability.
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD
PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL,
EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE)
OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER
REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR
RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD
HEREUNDER.
The limitation of liability set forth in this Section 9 shall not apply to liability resulting from
Seller’s gross negligence or willful misconduct.
12. Termination. In addition
to any remedies that may be provided under these Terms,
Seller may terminate the delivery of any Goods that have been invoiced but not delivered to Buyer with
immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount any due within ten
(10) days after Buyer’s receipt of the Delivery Notice or a Seller’s Invoice with respect to shipping and
other fees that are the responsibility of Buyer pursuant to these Terms; (ii) has not otherwise
performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a
petition for bankruptcy or commences or has commenced against it proceedings relating to
bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
13. Waiver. No waiver by
Seller of any of the provisions of this Agreement is
effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay
in exercising, any right, remedy, power or privilege arising from these Terms operates, or may be construed,
as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder
precludes any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege.
14. Amendment and
Modification. These Terms may only be amended or modified in a
writing which specifically states that it amends these Terms and is signed by an authorized
representative of each party.
15. Force Majeure. The Seller
shall not be liable or responsible to Buyer, nor be
deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing
any of these Terms when and to the extent such failure or delay is caused by or results from acts
or circumstances beyond the reasonable control of Seller including, without limitation, acts of God,
flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is
declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency,
revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to
either party’s workforce), or restraints or delays affecting carriers or inability or delay in
obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power
outage.
16. Assignment. Buyer shall
not assign any of its rights or delegate any of its
obligations under this Agreement without the prior written consent of Seller. Any purported assignment
or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer
of any of its obligations under this Agreement.
17. No Third-Party
Beneficiaries. This Agreement is for the sole benefit of the
parties hereto and their respective successors and permitted assigns and nothing herein, express or
implied, is intended to or shall confer upon any other person or entity any legal or equitable
right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
18. Governing Law and
Jurisdiction. All matters arising out of or relating to this
Agreement is governed by and construed in accordance with the internal laws of the State of Arizona
without giving effect to any choice or conflict of law provision or rule (whether of the State of Arizona
or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than
those of the State of Arizona. Any legal suit, action or proceeding arising out of or relating to this
Agreement shall be instituted in the federal courts of the United States of America or the courts of
the State of Arizona in each case located in the County of Maricopa, and each party irrevocably submits to
the exclusive jurisdiction of such courts in any such suit, action or proceeding.
19. Notices. All notices,
request, consents, claims, demands, waivers and other
communications hereunder (each, a “Notice”) shall be in writing and addressed to Buyer at
the address
set on the first page in the “Sold To” section of Seller’s invoices, to Seller at the address as
set forth on the Seller’s invoices, or to such other address that may be designated by the receiving
party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight
courier (with all fees pre-paid), email (with confirmation of delivery) or certified or registered mail
(in each case, return receipt requested, postage prepaid).
20. Severability. If any term
or provision of this Agreement is invalid, illegal or
unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any
other term or provision of this Agreement or invalidate or render unenforceable such term or provision
in any other jurisdiction.
21. Survival. Provisions of
these Terms which by their nature should apply beyond
their terms will remain in force after any termination or expiration of this Agreement.
22. Credit Card
Authorization. Buyer and its principals hereby authorize Seller to
make recurring charges to the credit card on file for Buyer, for the payment of Goods, shipping fees or
other charges set forth on Seller’s invoices, in accordance with these Terms, and, if
necessary, initiate adjustments for any transactions credited/debited in error or for refunds. Buyer
acknowledges that to terminate the recurring charges Buyer or its principals must arrange for an
alternative method of payment. Buyer and its principals agree not to dispute Seller’s charges
to Buyer’s credit card issuer so long as the amount in questions was for conforming Goods which were
ordered by and delivered to Buyer.
