THE FURNITURE PRACTICE LLC
CONDITIONS OF SALE
1.1. These Conditions of Sale (the “Conditions”) apply to all contracts for the sale of goods and/or the supply of services entered into by The Furniture Practice LLC (the “Company”), and constitute a binding contract between the Company and the person or entity ordering Goods or Services from the Company (the “Client”). All different or additional terms set forth in any document submitted by the Client to the Company, contained in any Client website or arising from a course of dealing between the Client and the Company are hereby rejected by the Company. The performance by the Company of any contract for the sale of goods and/or the supply of services following the submission to the Company of any Client document shall not be interpreted to mean that the Company has accepted or agrees with the terms set forth in any such document.
1.2. The terms defined in the Order Form shall apply to these Conditions, which are subject to any Special Terms stated in the Order Form.
1.3. This contract constitutes the entire contract between the parties relating to its subject matter, and supersedes any previous contract between the parties relating to that matter. Each party acknowledges that it has not entered into the contract on the basis of, and does not rely on, any representation, warranty or other provision that is not expressly included in the contract. The contract may only be varied in writing. No delay or omission of either party in exercising any right or remedy in whole or in part shall be construed as a waiver of it, or operate so as to limit or preclude any further or other exercise of it.
1.4. The contract is subject to the law of the State of New York without giving effect to the principles of conflicts of law. In the event of any dispute that cannot be resolved by the parties, each of the parties agrees that the exclusive venue for the resolution of any such dispute shall be the federal and state courts located in New York County, New York.
2.1. All descriptions of the Goods are given by way of identification only and the use of any such description shall not constitute a sale or description. The Company maintains a policy of continuous product improvement, and reserves the right to alter specifications without notice at any time before delivery.
2.2. If a sample of the Goods has been exhibited to and inspected by the Client the contract shall not constitute a sale by sample.
2.3. Subject as above, the Company shall replace the Goods free of charge upon written notification by the Client within 7 days of delivery if they are found to be materially different from those ordered, of defective workmanship or of a significantly lesser quality than that specified by the Company in writing or subsequent to the Order Form.
3.1. Any services described in the Order Form shall be provided by the Company to the Client at the Price specified for those Services in the Order form or as may be agreed between the Company and the Client, failing which the Company’s usual rates for such services shall apply.
3.2. Where the exact specification of the Goods, or of goods to be supplied by a third party in relation to which the Company is providing the Services, remains to be determined, the Client shall provide as soon as possible all detailed specifications, measurements and descriptions of its requirements as the Company may require, to the Company or as it may direct. Within a reasonable time of receipt of the detailed specifications of all such Services to be supplied, including suggested designs and materials and estimated costings, the Company shall develop a proposal and shall submit the proposal to the Client for approval.
Following receipt of the Client’s instructions in relation to the proposal, the Company shall prepare a fresh proposal, if necessary, or shall proceed with the provision of the Services and/or supply of the Goods as ordered.
3.3. The Company will only be liable in respect of installation work carried out by itself, its employees, agents or sub-contractors, but will not be so liable in any case where there are direct contractual relations between the Client and an installing party other than the Company. In any event the Company’s liability for installation work shall be limited to the correction of any failure to use reasonable skill and care and repair of property damage and liability for any death or personal injury caused by negligence or intentional misconduct on the part of personnel of the Company or its agents or sub-contractors. The Client shall:
3.3.1 Be responsible for the safety of the personnel of the Company or of its agents or sub-contractors while on the Clients premises
3.3.2 comply with all relevant statutory requirements; and
3.3.3 maintain adequate insurance against the appropriate risks.
4.1. The Company will deliver the Goods to the Delivery Address during normal working hours (Mon-Fri 9am–5pm) by any method of transport at the Company’s option and shall, if included in the Services, install them or arrange for their installation there. The Client shall pay any applicable delivery charge incurred by the Company, which shall be added to the Price. The Company may make partial deliveries. The Client is responsible for ensuring that the Company’s delivery personnel have access to the Company’s premises and appropriate entrances to the building and elevators, if needed, at the time scheduled for delivery.
4.2. If a Delivery Date is specified the company will aim to dispatch the goods by then, but does not guarantee to do so. Time of delivery shall not be of the essence of the contract.
4.3. The Company shall not be liable for any damage, loss, the non-delivery or to or of the Goods while in transit unless the Client gives written notification of the claim to the company within 7 days of delivery, or within such time as the Company may notify to the Client is sufficient to enable the Company to comply with its carrier’s requirements for claims.
4.4. The Company shall not be liable for any non-delivery, damage or shortage of part of any consignment of the Goods unless the Client gives written notification of the claim to the Company within 7 day of delivery of the rest of the consignment.
4.5. If any delay is caused by the Client then the Client will be liable for any additional storage / warehousing / handling such as loading and unloading costs incurred by the company. If delivery is delayed due to Force Majeure Event (as defined below), the provisions of Article11 below shall apply. Alternatively, the Company may cancel the Contract, in which case it shall refund to the Client in full the amount of the price paid to date.
5.1. Any price(s) stated in the Order Form or otherwise notified by the Company or agreed by the parties are based on costs currently prevailing in respect of the Goods and/or Services stated. Any increase in prices due to changes in the Client’s requirements shall be paid by the Client. Any increase in prices due, in the opinion of the Company, to a material increase in costs to the Company may, at the Company’s sole discretion, be passed onto the Client by an increase in the price.
5.2. All prices are exclusive of sales tax, except where expressly stated otherwise. All applicable taxes shall be added to the Company’s invoice and are payable by the Client.
5.3 A material increase in costs for the purposes of this clause shall include all and any costs incurred by the Company in providing the Goods and Services to the Client; including where appropriate relevant import tariffs, duties and other costs.
6.1. Payment terms are as stated in the order form. Unless otherwise specified in the order form, a deposit of 70% of the estimated total price including sales tax if applicable (“the Price”), is payable upon placement of the order (“the Deposit”). The balance of the Price is payable within 14 days of delivery of the Goods supplied and Services performed. In the case of partial deliveries, the Company may require proportionate partial payment of the Price as the deliveries are made
6.2. If payment of the Price or any part of it is not made by the due date, the Company shall be entitled to charge interest on the outstanding amount, (both before and after any judgement) at the rate of 3% per annum above the prime lending rate of M&T Bank then in effect, accruing daily. If Customer fails to make any payment due the Company shall be entitled to recover from the Client all costs the Company incurs in seeking to obtain payment, including but not limited to reasonable attorneys’ fees and court costs.
7 RISK AND TITLE
7.1. The risk in the Goods shall pass to the Client upon delivery.
7.2. The title to the Goods shall not pass to the Client until payment in full has been received by the Company, and any other indebtedness of the Client of the Company, has been paid in full.
7.3. Until the Client has rendered payment in full for the Goods to the Company, the Client shall:
7.3.1. Hold the Goods in a fiduciary capacity as the Company’s bailee;
7.3.2. store the Goods separately, so that they may be readily identified as the Company’s property; not allow any lien, charge or other encumbrance to be created or exist effecting the Goods other than those held by the Company, not remove any labels or tags indicating the Company’s rights to the Goods, and not move the Goods without the Company’s written consent;
7.3.3. adequately insure the Goods for their full replacement value;
7.3.4. upon demand, return the Goods to the Company or allow the Company access to any premises where they may be stored in order to recover them; and
7.3.5. not resell the Goods, except in the ordinary course of its business and for full value, in which case it shall hold the proceeds of sale upon trust, pay them into a separate identified account, and account to the Company for them upon demand.
8 INTELLECTUAL PROPERTY RIGHTS
8.1. No design right, copyright, patent rights or other intellectual property rights in any design, drawing, Goods or documents produced or supplied by the Company are assigned or otherwise transferred to the Client, even if they have been commissioned by the Client, and the Client disclaims all such rights.
8.2. Any such rights in any such things supplied or made available by the Client to the Company shall remain the property of the Client, and the Client warrants its title to them to the Company, except as expressly disclosed in writing, and agrees to indemnify the Company against any claims by third parties in respect of infringement of their intellectual property rights due to the Company’s use thereof for the purposes contemplated herein.
8.3. The Client shall not remove, alter, deface or tamper with any of the trade or other marks, names or numbers affixed to or marked on the Goods, or allow anyone else to do so.
9.1 The Company may terminate the contract with immediate effect by giving the Client notice in writing if:
(a) the Client fails to pay any amount due under the contract on the due date for payment;
(b) the Client commits a material breach of any term of the contract;
(c) the Client becomes insolvent, files for protection from its creditors under applicable bankruptcy laws, becomes the subject of any involuntary bankruptcy proceeding which is not stayed or dismissed within 10 days after having been commenced, or takes any step or action in connection with making an assignment for the benefit of its creditors (other than in relation to a solvent restructuring), dissolving or liquidating or is involuntary dissolved, having a receiver appointed for any of its assets or ceasing to carry on business;
(d) the Client’s financial position deteriorates to such an extent that in the Company’s opinion the Client’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.2 The Client may terminate the contract by delivering notice in writing to the Company before delivery of the Goods. As the Goods are manufactured to the Client’s order, the Client accepts that the Company might not be in a position to sell the Goods to a third party. The Company, shall, however, use reasonable efforts to mitigate its losses. The Company may charge the Client a 5% administration fee and all reasonable costs to include, but not limited to, the price for the Goods, loss of profit, handling, storage and disposal of the Goods.
9.3 If the Goods have been delivered, the Client may not return any Goods which comply with the contract unless the Company, in its sole discretion, agrees to accept the return of the Goods within seven days of delivery. In such a case the Client shall pay all costs of return of the Goods, a cancellation fee which shall be charged at the reasonable discretion of the Company and all other costs contemplated in Clause 9.2, above.
10 LIMITATION OF LIABILITY
10.1 The total amount of all liabilities of the Company to the Client, except those whose limitation or exclusion is prohibited by law, shall be limited to the Price (excluding sales tax).
10.2. The Conditions state the entire liability of the Company to the Client, and the Company shall be under no liability whatsoever to the Client other than that expressly stated above, whether contractual or otherwise, except to the extent that its exclusion is prohibited by law.
11 FORCE MAJEURE
11.1 Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;
(f) collapse of buildings, fire, explosion or accident; [and]
(g) any labor or trade dispute, strikes, industrial action or;
(h) non-performance by suppliers or subcontractors; and
(i) interruption or failure of utility service.
11.2 If a party is prevented, hindered or delayed in or from performing any of its obligations under this contract by a Force Majeure Event (“Affected Party”), excluding the failure to pay any amount owed to the other party when due, the Affected Party shall not be in breach of this contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
11.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
11.4 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the contract; and
(b) use all reasonable efforts to mitigate the effect of the Force Majeure Event on the performance of its obligations.
11.5 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than three months, the party not affected by the Force Majeure Event may terminate the contract by giving written notice to the Affected Party.
12.1 Except for warranties expressly stated in the contract, the Company disclaims all warranties, express and implied, including implied warranties of merchantability and fitness for a particular purpose.
13.1 This Agreement is not assignable by the client without the prior written consent of the Company.
14 AMENDMENT, WAIVER
14.1 No modification or supplement to this Contract shall be effective unless in writing and signed by both parties.
14.2 No waiver by either party of its rights under this contract shall be effective unless made in a written instrument signed by the party granting the waiver.
15.1 If any provision of the Contract is determined to be invalid or unenforceable, it shall not affect the remaining provisions of this Contract, which will remain in full force according with their terms.