BY THE YARD INC.
TERMS & CONDITIONS
1. 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.
2. 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 and/or contract. An Order shall be deemed accepted as soon as Seller receives Buyer’s Order. Seller’s acceptance shall be subject to seller’s right to cancel the Order as provided for hereunder.
3. 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 covered hereby shall be the sole responsibility of, and 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 greater, 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. Buyer agrees that any return or Goods may be subject to a restocking charge.
4. 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 make 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 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.
5. Assembly of Goods. Buyer acknowledges that some of the Goods sold by Seller and purchase by Buyer will require Buyer to assemble. If Buyer is located in the Minneapolis or St. Paul metro area, Buyer may elect to have Seller completely assemble the Goods prior to delivery. If Buyer elects to have Seller completely assemble the Goods prior to delivery, Buyer agrees to pay Seller for Assembly at Seller’s customary rate as that rate may exist from time to time.
6. 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 Majuere 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.
7. 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 irrevocably accepted the Goods and such claims shall be deemed waived, except as provided hereunder.
8. 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 manufacturing errors. Seller will replace, repair or refund, at the 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. 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.
Neither the manufacturer not anyone else involved in the sale or delivery of the Goods or Material, shall be liable for any direct, indirect, special, incidental, economic, cover, contingent, consequential, punitive, exemplary or similar damages or costs of any kind resulting from the use of, inability to use or any defect in the Goods or Material, including without limitations any lost profits or savings or damages from business interruption, loss of use revenues, time and the like, in any way related to the Goods or Material. Purchaser agrees that Seller’s liability arising out of contract, strict liability, tort, warranty, or otherwise, shall not exceed the original purchase price of the product.
With the exception of the above warranty, the goods are being sold “as is” and 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 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.
9. 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 contract, negligence, tort, warranty or any other basis, under, as a result of, 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 or any third party are limited to the obligations of seller identified in section 8 and in no event shall seller’s total liability exceed the total amounts actually paid by buyer for the goods purchased.
10. 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 that Seller elects to terminate any Order accepted by Seller, Seller shall return all amounts provided to Seller by Buyer within a reasonable time.
11. 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.
12. 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 or any part hereof, or the right of seller thereafter to enforce each and every provision.
13. 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 enforceability of the remaining provisions shall not be affected.
14. Entire Agreement. The Order 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.