Definitions: The following definitions apply unless otherwise indicated: (a) “Buyer” means the legal entity or individual contracting with Seller; (b) “Seller” means By The Yard Inc., a Minnesota corporation; (c) “Order” means this contract, including these terms and conditions, any special provisions, drawing, specifications and all other document incorporated herein; (d) “Goods” means the goods, supplies, services or other items to be furnished by Seller to Buyer; (e) “Material” means the plastic material comprising the furniture sold.
Acceptance of Order: Seller’s acceptance of any Order issued by Buyer shall be expressly limited to the terms and conditions set forth in the Order. Any counteroffer, additional terms or conflicting terms set forth or referenced in Buyer documentation are hereby expressly objected to and rejected by Seller and shall not be deemed a part of any Order or contract. An Order shall be deemed accepted and finalized once Seller receives the Order. Seller’s acceptance shall be subject to seller’s right to cancel the Order.
Price and Payment: Prices referenced on the face of the Order shall exclude all federal, state or local taxes, and any amounts for freight, insurance or other shipping expenses, unless otherwise stated. Any and all taxes, assessments or duties which may be imposed upon the production, shipment or sale of the Goods shall be paid by Buyer. Payment for all Goods shall be due in full immediately upon placing the Order. Buyer shall pay a finance charge of eight percent (8%) per annum or the maximum interest rate then allowed by law, whichever is less, on any amount past due to Seller. In the event Buyer fails to pay any amount due under any Order, Buyer shall pay Seller all court and expenses of collection, including reasonable attorney’s fees, regardless if court proceedings are instituted.
Delivery Terms: Buyer shall pay all costs to ship the Goods from Seller’s location to Buyer’s shipping address. Unless otherwise stated, all deliveries required under this Order shall be F.O.B. Seller’s plant and the risk of loss shall transfer to Buyer upon delivery to the freight carrier or when Seller delivers the Goods to Buyer at Seller’s plant. Seller will attempt to meet the requirements of Buyer’s delivery schedule and Seller shall not be in default of performance due to a delivery delay of reasonable duration resulting from any cause. Unless otherwise instructed, selection of carrier and routing of all shipments shall be at Seller’s discretion.
Assembly of Goods: Buyer acknowledges that some of the Goods will require Buyer to assemble. If Buyer is located in the Minneapolis St. Paul metro area, Buyer may elect to have Seller completely assemble the Goods prior to delivery.
Force Majeure: Seller shall not be liable for any failure to meet its obligations hereunder, due in whole or in part, directly or indirectly, to a Force Majeure event. A Force Majeure event includes, but is not limited to, fire, flood, accident, riot, war, government interference or regulations, rationing, allocations or embargoes, strikes or shortage of labor, delays in delivery or inability to deliver by Seller’s suppliers, equipment breakages, failures or other limitations, and other causes beyond the control of Seller.
Inspection and Acceptance: Buyer shall inspect the delivered Goods and report any claims Buyer may have with regard to the delivered Goods within ten (10) days of delivery. If Buyer fails to make a claim within ten (10) days, Buyer shall be deemed to have waived any objection, and except as provided hereunder.
Limited Warranty: Seller warrants to Buyer that the Goods shall be free from defects in material and workmanship upon delivery. Any claims for breach of the foregoing warranty shall only be valid if Buyer makes such claim within sixty (60) days of the date of shipment of the Goods by notifying Seller in writing and returning the defective Goods to Seller’s showroom within thirty (30) days of notification from Buyer. Buyer’s exclusive remedy and Seller’s sole liability for any breach of the foregoing warranty shall be for Seller, at Seller’s sole option, to replace or repair the defective Goods, or refund to Buyer the purchase price paid by Buyer for the defective Goods. If Seller determines that the original Goods are not defective, within the above warranty, Buyer shall reimburse Seller all cost of handling and transportation.
Seller warrants the Material to the original purchaser for a period of 35 years from the date of purchase. This warranty is limited to physical defects in the Material, such as dry rot, splitting, delaminating or checking and defects in the Material due to the manufacturing errors. Seller will replace, repair or refund, at Seller’s option the defective Material, provided the original Buyer supplies Seller with a copy of the original bill of sale and the damaged Material, or a sample, at Seller’s discretion.
Cash Refunds, if deemed necessary in the Seller’s sole discretion, will be the prorated percentage of the original purchase price, based upon the portion of 35 years elapsed at the time of the claim. If failure of the Material has resulted from misuse, abuse, accident, neglect, improper installation, acts of God or nature, disasters, repairs or alterations made by purchaser or another party or mishandling, then Seller shall have no responsibility under this warranty. Seller will not honor or be liable for any warranties made by a reselling merchant, whether express or implied.
With the exception of the above warranty, the Goods are being sold “as is.” The entire risk as to the quality and performance of the goods is with the Buyer. The warranty set forth in this section is in lieu of all other warranties and Seller hereby expressly disclaims all other warranties, express or implied, statutory or otherwise, including, without limitation, the implied warranties of merchantability, infringement and fitness for particular purpose. Any repair or attempt to repair the Goods by anyone other than the Seller shall void any and all warranties. The foregoing language cannot be waived, modified or supplemented in any manner whatsoever, except by a written agreement signed by an officer of the Seller.
Limitation on Liability: Under no circumstances shall Seller be liable to Buyer or any third party for any indirect, consequential, collateral, special, punitive, treble, exemplary or incidental damages (including, but not limited to, loss of profits or goodwill) whether such claim is based on or associated with this Order, Seller’s performance of this Order, or the Goods, regardless of whether Seller has been advised of the possibility of any such loss or damage. Buyer agrees Seller’s liability, whether to Buyer of any third party, is limited to the obligations of Seller identified herein and in no event shall Seller’s total liability exceed the total amount actually paid by Buyer for the Goods.
Refund or Exchange Policy: Buyer is entitled to a full refund or exchange on regular stocked Goods, in new condition, within 10 days of receipt of the Goods. The original shipping/delivery cost is not refundable.
Returns/Exchanges with damage and/or missing parts, not related to shipping or defective merchandise will result in a reduced refund. The Goods will be examined upon receipt by Seller, and a final determination of refund will be given. Buyer will be contacted by email once the final determination of refund has been made.
All sales are final on Custom, “As Is”, Display, Backyard Bargains, and Engraved items, and these Goods cannot be returned or exchanged.
If the Goods have been shipped to Buyer in a box, then the Goods must be returned unassembled in the original packaging, complete with hardware and instructions.
The arrival condition of the returned or exchanged Goods is the Buyer’s responsibility.
If the return is not due to damage during shipping or defective merchandise, the Buyer will be responsible for shipping cost back to By The Yard Inc.
If your returned/exchanged Goods need to be picked up by Seller, then Buyer will be charged the pickup fee.
Termination/Cancellation: Seller reserves the right to modify or discontinue any design, price, term, color or product offering without notification. Seller may terminate or cancel any Order accepted by Seller at any time and for any reason by providing notice to Buyer of Seller’s decision to so terminate. In the event Seller elects to terminate any Order accepted by Seller, Seller shall return all amounts paid to Seller.
If Buyer chooses to cancel an Order on a regular stocked item, then Buyer must cancel in writing, by email or personal delivery. Buyer will have 1 week from the time the Order is finalized to cancel and receive a full refund.
Cancellation of custom Orders, or engraved items must be cancelled by Buyer in writing within 24 hours from the time the Order is finalized. After that, custom Orders and engraved items cannot be cancelled by Buyer for any reason.
Choice of Law: This Order will be governed by and construed in accordance with the laws of the State of Minnesota without resort to its conflict or choice of law rules. Any action at law, suit in equity or judicial proceeding of any kind arising directly, indirectly or otherwise in connection with, out of, related to or from this Order or the relationship between the parties shall be litigated only in the state courts located in Scott County, Minnesota and the parties waive any right they may have to challenge the jurisdiction of this court or seek to bring any action in any other forum, whether originally or by transfer, removal or change of venue.
Waiver: The failure of Seller to enforce any applicable provision of these terms and conditions, or to require at any time performance by Buyer of any provision or obligation hereof, shall in no way be construed to be a waiver of such provision, nor in any way affect the validity of this Order of any part hereof, or the right of seller thereafter to enforce each and every provision.
Severability: If any provision of the terms and conditions contained in this Order is found to be invalid or unenforceable in any respect, the validity and the enforceability of the remaining provisions shall not be affected.
Entire Agreement: The Order, including these terms and conditions, represents the entire agreement between Buyer and Seller pertaining to the subject matter of this Order and shall supersede all prior oral and/or written agreement, proposals, communications and documents.