1) As used throughout these Terms and Conditions, the following terms shall have the meanings set forth below:
a) The term “Seller” means Design/Craft Fabric Corporation or one of its wholly owned subsidaries.
b) The term “Buyer” means the person, corporation or firm purchasing or contracting to purchase the article(s) described in these Terms and Conditions.
c) The term “articles” means the goods, services, designs or other items covered by these Terms and Conditions.
2) Any provision of the Buyer’s Purchase Order which conflicts with the terms and conditions herein contained shall be ineffective and these terms and conditions shall govern unless the Seller shall subsequently agree thereto in writing before or upon acceptance of the Buyer’s Order. This contract may not be changed or terminated orally and no change, termination or waiver of any of its provisions shall be valid unless in writing and signed by Seller.
3) Unless otherwise stated herein, all prices are F.O.B. Seller’s location. Method of delivery and routing shall be at the Seller’s discretion. Notwithstanding any agreement to pay freight, delivery of goods purchased hereunder to a common carrier or licensed trucker shall constitute delivery to Buyer and all risk of loss or damage in transit shall be borne by Buyer. In the event that Buyer requires special packing, Buyer shall pay an additional charge for the same, as determined by Seller.
4) All Goods covered by this invoice are hereby pledged to Seller as security for payment of any amount now due and/or hereafter to become due, irrespective of date of origin, including transportation, duties and taxes, in or of whatever other nature. The release of any goods held by Seller subject to a lien shall, in each case, be in consideration of the transfer of the said lien (upon the released goods) to other goods of the same customer, remaining from time to time in possession of Seller.
5) Unless otherwise stated Seller’s prices do not include sales, use, excise or similar taxes. Consequently, in addition to the price specified herein, the amount of any present or future sales, use, excise or similar tax applicable to the sales of the products hereunder shall be paid by Buyer or in lieu thereof, Buyer shall provide Seller with a tax exemption certificate acceptable to the taxing authorities.
6) Seller shall not be liable for failure to deliver or delays in delivery occasioned by strikes, lockouts, fires, inability to obtain materials or shipping space, breakdowns, delays of carriers or suppliers, governmental acts and regulations and any other causes beyond Seller’s control. It is understood that deliveries will be made in accordance with Seller’s regular shipping schedule. Every effort will be made to meet the Buyer’s required delivery dates but Seller will not be liable for any damages resulting from delays in delivery.
7) Except as otherwise stated herein, this contract shall be non-cancelable except with the written consent of the Seller. In the event of cancellation or other breach by Buyer, Seller’s damages shall include the following:
a) Invoice price of all goods which have been identified to the contract, whether such articles have been delivered to Buyer or not.
b) Actual costs incurred by Seller for goods not completed, which are allocable to the balance of the contract, including the cost of discharging seller’s liabilities which are so applicable and the costs of materials on hand which were acquired or produced in connection with partially finished work and materials.
c) A reasonable allowance for profit in connection with goods called for under the contract, but with respect to which production has not yet begun at the time of cancellation or other breach.
d) Reasonable costs of collection incurred by Seller, including accountants’ and attorneys’ fees.
8) Seller reserves the right to make delivery in installments, unless other-wise expressly stated herein.
a) All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligations to accept remaining deliveries.
b) Notwithstanding that the Buyer may in a single order purchase several individual or category of goods, each such goods or category of goods shall be construed as forming a separate order and failure to deliver any one or number of such goods or category of goods shall not constitute a breach of the order with respect to the other undelivered goods or categories.
9) Seller reserves the right, at any time, to revoke any credit extended to Buyer because of Buyer’s failure to pay for any goods when due or for any reason deemed good and sufficient to Seller and in such event Seller shall have the right to demand that all subsequent shipments be paid for prior to delivery. Pro rata payments become due as shipments are made
10) SELLER’S LIABILITY UNDER THIS CONTRACT SHALL BE LIMITED TO THE STATED SELLING PRICE PER UNIT OF ANY DEFECTIVE ARTICLES AND SHALL, IN NO EVENT, INCLUDE BUYER’S MANUFACTURING COSTS, LOST PROFITS OR GOODWILL OR ANY OTHER SPECIAL OR CONSEQUENTIAL DAMAGES.
11) Terms are net, no discount will be allowed. Buyer irrevocably agrees that Seller shall have the continuing exclusive right to apply and re-apply any and all payments received by Seller from or for the account of Buyer at any time or times hereafter in any manner Seller may deem advisable, notwithstanding any entry by Seller upon any of its books and records and notwithstanding any designation made by Buyer. Invoices not paid when due shall be subject to a late charge of 1.5% per month or the highest rate permitted by law.
12) Buyer shall indemnify, defend and hold Seller harmless from and against all claims, suits, judgments, costs, losses, expenses (including attorneys’ fees) and liabilities from infringement (actual or claimed) of patents, trademarks or copyrights arising from compliance with Buyer’s specifications or instructions.
13) If, pursuant to Buyer’s request, Seller shall agree to postpone delivery beyond the date specified in its order, Seller shall have the right to demand payment when the items are completed. Such completed items shall be held at Buyer’s risk and Buyer shall pay reasonable storage charges during the period that the shipment is delayed.
14) The remedies herein reserved by Seller shall be cumulative and in addition to any other legal remedies. No waiver of a breach of any portion of this contract shall constitute a waiver of continuing or future breaches of such provision or of any other provision hereof.
15) Seller will exert all reasonable efforts in accordance with the industry standard to dye a reasonable color match to standard, however, Seller does not guarantee an exact color match.
16) Buyer shall allow such shrinkage as is necessary in Seller’s judgment to properly process the goods.
17) The descriptions and illustrations contained in the catalogs, price lists and other advertising matter were, to the best of Seller’s knowledge, accurate at the time of publication but no representation or warranty is made as to the accuracy thereof and no such documents shall be incorporated in or form a part of the order to which this invoice pertains.
18) This contract represents the entire agreement of the parties and shall not be assignable by Buyer voluntarily or by operation of law or otherwise without Seller’s consent.
19) The parties agree that the law of the State of Illinois shall apply to the interpretation and enforcement of this Contract and the transaction described herein, excluding, however, the United Nations Convention on Contracts for the International Sale of Goods.
20) Anything herein to the contrary notwithstanding, any action for alleged breach by Seller of the contract between the parties, including, but not limited to an action for breach of the warranties herein set forth, shall be barred unless commenced by Buyer within one (1 ) year of the accrual of such cause of action.
21) Claims for shortages in shipment must be made in writing and within ten (10) days or shall be deemed waived. No claim may be made after goods are cut or processed.
22) Stenographic or clerical errors are subject to correction.
Warranty Policy
Seller warrants the goods sold will conform with all pertinent specifications including performance specifications, drawings and approved sample, if furnished. Seller also warrants said goods to be free of defective material and workmanship. This warranty is in lieu of all other warranties, expressed or implied. SELLER MAKES NO WARRANTY THAT SAID ARTICLES ARE FIT FOR ANY PARTICULAR PURPOSE, NOR ANY WARRANTY AS TO THE MERCHANTABILITY OR QUALITY OF ARTICLES SOLD EXCEPT AS HEREIN STATED THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. All claims for alleged defects in goods under this warranty shall be deemed waived unless made in writing and delivered to Seller within thirty (30) days after receipt of goods by Buyer. This warranty shall not apply where goods have been subject to misuse, neglect, accident, improper application or have been repaired or substantially altered by others. Transportation charges will always be borne by Buyer. No returns will be accepted unless authorized by the Seller and Buyer shall bear all risk of loss or damage in transit to returned goods.