These Terms and Conditions of Sale (the “Terms”) establish the rights, obligations, and remedies of Cost Plus Appliance & Design Center, and/or its wholly owned affiliates (“Seller”) and the buyer (“Buyer”), form the entire agreement between Seller and Buyer, and apply to all sales transactions between Seller and Buyer unless otherwise specifically agreed to in writing by both parties. All prior oral or written agreements, including, but not limited to, terms in Buyer’s purchase order, which are different from or in addition to these Terms are not binding on Seller unless expressly accepted in writing by Seller’s duly authorized representative.
1.ENTIRE AGREEMENT
2. SHIPMENT
All orders are shipped Free Carrier (FCA), Seller’s facility. Risk of loss will transfer to Buyer upon tender of products and/or parts (“Goods”) to Buyer, Buyer’s representative or common carrier. The cost of any special packaging or handling caused by Buyer’s requirements or requests will be added to the amount of Buyer’s order. If Buyer causes or requests a delay of shipment or if Seller ships or delivers an order erroneously as a result of inaccurate, incomplete, or misleading information supplied by Buyer or Buyer’s agents or employees, all storage and other additional costs and risk will be borne by Buyer.
3. PRICE
All prices are subject to change unless otherwise noted on Seller’s applicable quotation. Buyer will be invoiced at prices in effect at the time of shipment. All taxes, transportation costs, duties and other charges are in addition to quoted prices. The amount of any sales, excise or other taxes, if any, applicable to the goods shall be added to the purchase price and shall be paid by Buyer unless Buyer provides Seller with a valid tax exemption certificate.
4. DELIVERY
Seller will make a good faith effort to deliver Goods in accordance with Buyer’s schedule. Seller will pay for expedited shipping of delayed Goods if the delay in delivery is solely caused by Seller. Seller assumes no responsibility or liability for Seller’s non-performance caused by a force majeure event including, but not limited to an act of God, war, labor disputes, civil unrest, accidents, pandemics, the inability to obtain materials or Goods, delays of carriers, contractors or suppliers, or any other causes beyond Seller’s control.
5. CANCELLATION
Buyer may not cancel or modify an order without the written consent of Seller and payment by Buyer of all applicable cancellation or re-stocking fees.
6. PAYMENT
Payment is expected in full for all goods.
Professional Contractors with an established account, shall pay for the Goods Net 15 from date of Seller’s invoice. In the event of a late payment, Seller is entitled to treat Contractors’ entire account(s) as immediately due and payable without notice or demand. All past due amounts will be subject to a service charge accruing at a rate of up to 1.5% per month. Contractor shall not be allowed to retain or holdback payment and Contractor’s payment obligations are not contingent on any event other than Seller’s performance. Contractor’s receipt of payment or funds from any third party shall in no way relieve Contractor’s obligations to pay Seller. Contractor is not entitled to set-off any amounts due to Seller by Contractor in connection with any transaction governed by these Terms.
7. INSPECTION AND ACCEPTANCE
Buyer shall examine all Goods upon receipt and prior to installation. All claims for damage, shortage, and errors in shipment or improper delivery must be made to Seller in writing within two (2) business days of delivery, after which date Buyer will be deemed to have accepted the Goods and will have no right to reject the Goods or to revoke acceptance. Buyer must make any claims for billing errors or adjustments to Seller in writing within ten (10) business days from the invoice date. Claims not received in writing within such period of time will be waived by Buyer.
8. RETURNS
ALL SALES ARE FINAL. All returns are subject to Seller’s approval and may include a re-stocking fee and/or cancellation fees. Special orders or non-stock Goods may be returned if the manufacturer is willing to accept the return and Buyer agrees to reimburse Seller for any restocking or cancellation fees charged by the manufacturer.
9. EXPORT CONTROL LAWS
Buyer warrants that it is not subject to U.S., EU, or UN sanctions, including, but not limited to, being identified on the U.S. Specially Designated Nationals (SDN) List, or more than 50 percent owned by an SDN. Buyer further acknowledges that Goods are subject to U.S. export control laws and regulations and cannot be exported, reexported, or transferred except in compliance with such laws and regulations. If Seller delivers Goods to Buyer within the United States, Buyer expressly assumes any and all duties and liability associated with subsequent export of the Goods, including but not limited to determining export licensing requirements, obtaining all required authorizations, and submitting Electronic Export Information, if required. In such case, Seller shall not be named as the Exporter of Record with respect to the Goods
10. WARRANTIES
Unless otherwise specified in the product specifications, all warranty service is provided exclusively by and through the manufacturer. Buyer’s sole and exclusive remedy for non-conformity with these warranties shall be handled through the manufacturer only. Should the manufacturer approve repair or replacement of the non- conforming Goods, Seller will assist the Buyer with such repair and/or replacement.
Seller warrants only title to the Goods sold to Buyer. All other warranties are those extended by the product manufacturer. Seller assigns to Buyer any and all manufacturer warranties. Seller, in their capacity, will assist Buyer to obtain repair, replacement, or other applicable remedy for a breach of warranty made known to Seller during the warranty period and which has been approved by the manufacturer.
(A) Limited Warranty - Installation. The installation of Goods by Seller, if any, or the Subcontractor authorized by Seller, shall be warrantied for a period of five (5) days from date of installation. Seller warrants that services shall be performed in a professional and workmanlike manner and in accordance with manufacturer’s installation instructions and local code requirements. During the installation warranty period, should the Goods fail to perform according to improper original installation, Buyer shall provide notice to Seller that installation services were not performed in accordance with the limited warranty herein and Seller shall re-perform the services to the Buyer’s satisfaction. The foregoing shall not apply if there is evidence of abuse or misuse by Buyer or any third party. This Limited Warranty on installation does not extend to labor/services performed by anyone other than the original authorized installer, nor to the installation or repair of any finishing or other materials that have been applied to or adjacent to the product after the initial installation.
(B) Services. Seller warrants that all services provided by Seller shall be performed in a professional and workmanlike manner with qualified personnel.
(C) Warranty Exclusions. These warranties shall be void if there has been misuse, accident, modifications, unsuitable physical or operating environment, improper maintenance, storage, or installation of the goods. SELLER DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR USE OR A PARTICULAR PURPOSE EVEN IF KNOWN BY SELLER. SELLER MAKES NO REPRESENTATION, WARRANTY, OR PROMISE THAT THE PRODUCTS OR SERVICES WILL CONFORM TO ANY APPLICABLE LAWS, ORDINANCES, REGULATIONS, CODES OR STANDARDS, INCLUDING BUT NOT LIMITED TO LOW LEAD OR LEAD FREE LAWS OR REGULATIONS, EXCEPT AS SPECIFIED AND AGREED TO IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF SELLER.
11. INDEMNIFICATION
Each party (“Indemnitor”) shall indemnify, defend and hold harmless the other party and its employees, officers, directors, and agents (each an “Indemnitee”) from any suit, cause of action, arbitration/mediation proceeding, judgment, or claim (“Claim”) for damages to property or bodily injury, loss of life, infringement, liability of any nature, costs, fines, penalties, and expenses, including reasonable attorney fees and any other cost of litigation (“Damages”) to the extent caused directly by the negligent act or omission or intentional misconduct of the Indemnitor. Indemnification shall not apply to Damages proximately caused by the negligence of Indemnitee.
12. INSURANCE
Seller shall maintain all insurance as required by law and shall not allow such coverage to lapse. All such coverage can be met through a standard, umbrella, or any combination of policies thereof. Seller is not bound to pay any premium or other fee to an Owner Controlled Insurance Program (“OCIP”) or Contractor Controlled Insurance Program (“CCIP”) type insurance program. Unless expressly provided in Seller’s quotation to Buyer, payment and performance bonds are not to be provided by Seller.
13. LIMITATION OF LIABILITY
In no event shall Seller be liable for special, incidental, consequential, punitive, statutory, liquidated, or indirect damages, including but not limited to loss of profit, revenues, capital, business opportunity or downtime costs, arising out of the sale of goods and/or services to Buyer. This limitation shall apply regardless if the claimed damages arise from breach of contract, breach of warranty, tort, strict liability, or any other legal theory.
14. U.S. GOVT CONTRACTS
If Buyer is procuring items as a contractor, or subcontractor at any tier, for the direct or indirect sale to any agency of the U.S. Government, and/or is funded in whole or in part by any agency of the U.S. Government, Buyer agrees all Goods provided by Seller meet the definition of a commercially available off-the-shelf (COTS) item or “commercial item” as those terms are defined in Federal Acquisition Regulation (“FAR”) 2.101. To the extent the Buy American Act, Buy America Act, Trade Agreements Act, or other domestic preference requirements are applicable the country of origin of Goods is unknown unless otherwise specifically stated by Seller in writing. Additionally, any reference to or incorporation of Executive Order 14042 “Ensuring Adequate COVID Safety Protocols for Federal Contractors” and/or the EO-implementing Federal clauses (FAR 52.223 -99 and/or DFARS 252.223-7999) is expressly rejected by Seller and shall not apply as Seller is a materials supplier and therefore exempt under the Executive Order. The version of any applicable FAR or DFARS clause listed in this Clause 14 shall be the one in effect on the date of sale.
15. SEVERABILITY
These Terms will be construed as if prepared jointly by the parties hereto and any uncertainty or ambiguity will not be interpreted against any one party. If any provision contained in these Terms is held to be unenforceable then such provision will be given effect in such reduced form as may be decided by a court of competent jurisdiction, provided that, if any provision should be declared unenforceable or invalid for any reason, such unenforceable or invalid provision will be severed from the remainder of these Terms without affecting the enforceability or validity of the remaining provisions.
16. NON-WAIVER
The failure of Seller to insist upon the strict performance of any of these Terms will not be deemed to be a waiver of any of the rights or remedies of Seller, nor of its right to insist upon strict performance of such term or of any other term in the future. No waiver of any of these Terms will be valid unless in writing signed by a duly authorized representative of Seller.
17. DISPUTE RESOLUTION
The parties shall attempt in good faith to resolve promptly any dispute arising out of or relating to these Terms by negotiation between executives who have authority to settle the dispute. The executives must be at a higher level of management than the persons with direct responsibility for administration of these Terms. If a dispute cannot be resolved by negotiation, then either party may bring a legal action in accordance with Section 18 of these Terms.
18. GOVERNING LAW
For Goods and/or services delivered within the United States, all disputes related to or arising out of a Buyer’s order shall be governed by the laws of the jurisdiction where the applicable Goods are delivered and/or services are performed, excluding the rules on the conflict of laws. For Goods and/or services delivered outside of the United States, all disputes related to or arising out of Buyer’s order shall be governed by the laws of the Commonwealth of Wyoming, excluding the rules on the conflict of laws. Any legal action related to or arising out of Buyer’s order shall be brought in the relevant state or federal court in such jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods, and any successor thereto, shall not apply.
TERMS & CONDITIONS