Terms of Service
RICHARDSON SEATING CORPORATION
TERMS AND CONDITIONS
TERMS AND CONDITIONS
Richardson Seating Corporation is herein referred to as the “Seller” and the customer or entity purchasing goods (“Goods”) from Seller is referred to as the “Buyer.” These Terms and Conditions (“Terms”), any price list or schedule, quotation, acknowledgment or invoice from Seller relevant to the sale of the Goods and all documents incorporated by specific reference herein or therein (collectively, this “Agreement”), constitute the complete and exclusive statement of the terms of the agreement governing the sale of Goods by Seller to Buyer. SELLER’S ACCEPTANCE OF BUYER’S PURCHASE ORDER IS EXPRESSLY CONDITIONED ON BUYER’S ASSENT TO ALL OF SELLER’S TERMS, INCLUDING TERMS AND CONDITIONS THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE TERMS AND CONDITIONS OF BUYER’S PURCHASE ORDER. Buyer’s acceptance of or payment for the Goods will manifest Buyer’s assent to these Terms. Seller reserves the right in its sole discretion to refuse orders.
1. Prices; Taxes and Fees. Buyer shall purchase the Goods from Seller at the prices (the “Prices”) set forth in Seller’s published price list in force as of the date that Seller accepts Buyer’s purchase order, and each shipment will be invoiced at such prices. Unless otherwise specified by Seller in writing, Prices are exclusive of all taxes and governmental charges, which shall be borne by Buyer. Any current or future tax or governmental charge (or increase in same) affecting Seller’s costs of production, sale, or delivery or shipment, or which Seller is otherwise required to pay or collect in connection with the sale, purchase, delivery, storage, processing, use or consumption of Goods, shall be for Buyer’s account and shall be added to the price or billed to Buyer separately, at Seller’s election.
2. Payment Terms. (a) Unless otherwise specified by Seller in writing, Buyer shall pay for the Goods at the time Buyer submits an order by wire transfer/ACH, check, or credit card and in US dollars. Seller reserves the right to require payment by wire transfer/ACH and to charge a service charge for credit card payments, where permissible. If Seller rejects Buyer’s order, Seller shall refund all amounts paid on the order to Buyer. (b) If credit terms are set forth in a separate agreement between Buyer and Seller, Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller’s invoice. Buyer shall make all payments under this Section 2(b) by wire transfer/ACH or check (if permitted by Seller), and in US dollars. (c) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month (18% per year) or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods under this Agreement and/or other agreements with Buyer if Buyer fails to pay any amounts when due hereunder and such failure continues for 10 days following written notice thereof. (d) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise. Any sums that have been deducted by Buyer in violation of this paragraph shall be considered overdue and shall be subject to the above interest charge.
3. Customization. (a) Buyer may request, in exchange for such additional fees as determined by and among the Parties in writing, certain artwork or logos to be incorporated into the Goods (the “Artwork”). Buyer acknowledges and agrees that Buyer must provide Seller with any and all artwork, logos and any other information requested by Seller in such format as requested by Seller. Seller is not responsible for any content, error, or omission in any Artwork provided by Buyer. Buyer represents and warrants that Buyer owns all rights in the Artwork, or has obtained all necessary rights and license to incorporate and use the Artwork in connection with the Goods, and that Seller’s use of the Artwork in connection with the Goods will not infringe any rights of any third parties, including without limitation any copyrights, trademarks, trade dress, or patents (“Third-Party Rights”). (b) Buyer is solely responsible for the durability, wear-ability, safety and compliance with any and all applicable fire codes or flammability standards for any and all materials supplied by Buyer. Seller does not assume, and expressly disclaims, any and all responsibility for any materials provided by Buyer or any third party at Buyer’s direction or request. The Limited Warranty herein expressly does not apply or extend to any materials provided by Buyer or any third party at Buyer’s direction or request.
4. Fire Codes/Flammability Standards. It is the sole responsibility of Buyer to specify to Seller specifically identified provisions of applicable fire codes or flammability standards, if any, for the Goods. Such specifications must be (a) noted to Seller in writing as a clear and conspicuous line item, with an associated charge, on Buyer’s purchase order and not, for the avoidance of doubt, in Buyer’s terms and conditions, if any, and (b) acknowledged by Seller in writing in the acknowledgment/sales confirmation/invoice. Seller reserves the right to charge Buyer an additional fee for Seller’s compliance with such specifications, and such fee shall be added to the Price or billed to Buyer separately, at Seller’s election.
5. Shipping; Delivery; Risk of Loss. (a) While Seller will use commercially reasonable efforts to maintain the delivery date(s) acknowledged or quoted by Seller, all shipping dates are approximate and not guaranteed. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. (b) Unless otherwise agreed in writing by the parties, all shipments of Goods are FOB Seller’s shipping point and Seller shall use Seller’s standard methods for packaging and shipping such Goods. Seller shall not be liable for any delays, loss or damage in transit, and any claims resulting therefrom shall be submitted by Buyer directly to the carrier. (c) Seller, at its option, shall not be bound to tender delivery of any Goods for which Buyer has not provided shipping instructions and other required information. If the shipment of the Goods is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all storage costs and other additional expenses (including insurance) resulting therefrom and the risk of loss for the Goods shall pass to Buyer at such time. (d) Title and risk of loss passes to Buyer upon delivery of the Goods to and receipt by carrier at Seller’s shipping point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Illinois Uniform Commercial Code -- Sales. Seller shall have all rights as a secured party under UCC Article 9.
6. Quantity. If Seller delivers to Buyer a quantity of Goods of up to 10% more or less than the quantity set forth in the acknowledgment/sales confirmation/invoice, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the acknowledgment/sales confirmation/invoice adjusted pro rata.
7. Inspection and Rejection of Nonconforming Goods. (a) Buyer shall inspect the Goods within 24 hours of receipt (the “Inspection Period”). Buyer shall be deemed to have accepted the Goods unless it notifies Seller in writing of Nonconforming Goods during the Inspection Period, and furnishes written evidence or other documentation as required by Seller. Seller shall not be responsible for any Delivery Defect. “Delivery Defect” means only the following: (x) product is damaged, or (y) product received is of a lesser quantity than identified on Seller’s invoice. “Nonconforming Goods” means only the following: (x) product shipped is different than identified in Buyer’s purchase order; or (y) product’s label or packaging incorrectly identifies its contents. (b) If Buyer notifies Seller of any Nonconforming Goods during the Inspection Period, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer acknowledges and agrees that the remedies set forth in this Section 7(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided in this Section 7(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
8. Limited Warranty. (a) Except as set forth herein, Seller warrants to Buyer that for a period of 1 year from the date of shipment of the Goods (“Warranty Period”), that such Goods will, under normal wear and tear, use and operation, be free from material defects in material and workmanship. (b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO SELLER IN SPECIFICATIONS, DRAWINGS OR OTHERWISE, AND WHETHER OR NOT SELLER’S PRODUCTS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER’S USE OR PURPOSE; (iii) WARRANTY OF TITLE; (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; OR (v) WARRANTY AS TO THE FLAMMABILITY CHARACTERISTICS OF THE GOODS OR THAT THE GOODS CONFORM TO APPLICABLE FIRE CODES OR FLAMMABILITY STANDARDS, IF ANY, OR HAVE BEEN TESTED FOR CONFORMITY THERETO EXCEPT TO THE EXTENT BUYER HAS EXPRESSLY REQUESTED IN WRITING AS A CLEAR AND CONSPICUOUS LINE ITEM, WITH AN ASSOCIATED CHARGE, ON BUYER’S PURCHASE ORDER COMPLIANCE WITH SPECIFICALLY IDENTIFIED PROVISIONS OF APPLICABLE FIRE CODES OR FLAMMABILITY STANDARDS AND WHERE SELLER HAS ACKNOWLEDGED SUCH SPECIFICATIONS IN WRITING IN THE ACKNOWLEDGMENT/SALES CONFIRMATION/INVOICE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. SELLER NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE, MAINTENANCE OR USE OF THE GOODS. THE LIMITED WARRANTY PROVIDED HEREIN EXPRESSLY DOES NOT APPLY OR EXTEND TO ANY MATERIALS PROVIDED BY BUYER OR ANY THIRD PARTY AT BUYER’S DIRECTION OR REQUEST; AS TO ANY SUCH MATERIALS, SELLER MAKES NO WARRANTY THAT SAID MATERIALS COMPLY WITH ANY OR ALL APPLICABLE FIRE CODES OR FLAMMABILITY STANDARDS. (c) It is expressly understood that unless a statement is specifically identified as a warranty, statements made by Seller or its representatives relating to Seller’s products, whether oral, written or contained in any sales literature, catalog, website or agreement, are not express warranties and do not form a part of the basis of the bargain, but are merely Seller’s opinion or commendation of Seller’s products. Except as specifically set forth herein, there is no express warranty as to Seller’s products. (d) The Seller shall not be liable under the Limited Warranty set forth in Section 8(a) unless: (i) Buyer gives written notice of the defect, reasonably described and including the date of sale and the location of the purchase, to Seller within 30 days of the time when Buyer discovers or ought to have discovered the defect; (ii) Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Buyer’s cost for examination by Seller; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective. (e) The Seller shall not be liable for a breach of the Limited Warranty set forth in Section 8(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises during shipment, (iii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, use or maintenance of the Goods (including Buyer’s use of the Goods outdoors, unless the Goods are specifically intended for outdoor use); (iv) Buyer alters, modifies or repairs such Goods without the prior written consent of Seller, (v) the defect arises because of accident, fire, wind, water or other catastrophic or sudden unforeseen occurrence; or (vi) the Goods have been assigned, sold or transferred to any person other than Buyer. Damages caused by exposure to salt, direct sunlight, ultraviolet rays, excessive heat, excessive cold, excessive moisture, or any other type of unforeseen exposure to the elements are not covered by the Limited Warranty in Section 8(a). Any such acts shall render the Limited Warranty contained in Section 8(a) void. (f) Subject to Section 8(d) and Section 8(e) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) at Seller’s facility; provided, that if Seller elects to conduct repair or replacement at its facility, than Buyer shall prepay transportation costs to Seller and Seller shall prepay transportation costs back to Buyer; or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller. Seller shall have a reasonable period of time to make such replacements or repairs and all labor associated therewith shall be performed subject to reasonable working conditions. If returned Goods are repaired or replaced pursuant to the terms of this Limited Warranty, then Seller will prepay transportation charges back to Buyer; otherwise, Buyer shall pay transportation charges in both directions. Under no circumstance will Seller pay for freight charges outside of the forty- eight (48) contiguous United States. (g) THE REMEDIES SET FORTH IN SECTION 8(F) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 8(A).
9. Limitation of Liability. (a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS CAUSED BY DELAY IN PERFORMANCE, LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. (b) SELLER EXPRESSLY DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY FOR ANY MATERIALS PROVIDED BY BUYER OR ANY THIRD PARTY AT BUYER’S DIRECTION OR REQUEST, INCLUDING WITHOUT LIMITATION ANY LIABILITY RELATING TO THE DURABILITY, WEAR-ABILITY, SAFETY AND/OR COMPLIANCE WITH ANY AND ALL APPLICABLE FIRE CODES OR FLAMMABILITY STANDARDS. (c) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER. (d) DISCLAIMER. Some countries, states, or provinces do not allow the exclusion or limitation of implied warranties or the limitation of incidental or consequential damages for certain products supplied to consumers, or the limitation of liability for personal injury, so the above limitations and exclusions may be limited in their application to Buyer. When the implied warranties are not allowed to be excluded in their entirety, they will be limited to the duration of the applicable written warranty. This Limited Warranty gives Buyer specific legal rights, which may vary depending on local law. IF ANY PRODUCT TO WHICH THIS LIMITED WARRANTY APPLIES IS DETERMINED TO BE A “CONSUMER PRODUCT” UNDER THE MAGNUSON-MOSS WARRANTY ACT (15 U.S.C.A. §2301, ET SEQ.) OR OTHER APPLICABLE LAW, THE FOREGOING DISCLAIMER OF IMPLIED WARRANTIES SHALL NOT APPLY TO BUYER, AND ALL IMPLIED WARRANTIES ON THIS PRODUCT, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR THE PARTICULAR PURPOSE, SHALL APPLY FOR THE SAME TERM SET FORTH ABOVE (ONE YEAR) AS PROVIDED UNDER APPLICABLE LAW. The portions of this Limited Warranty and limitation of liability shall be considered fully severable, and all portions which are not disallowed by applicable law shall remain in full force and effect.
10. Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
11. Indemnification. Buyer agrees to indemnify, defend and hold harmless Seller and its officers, directors, managers, employees, agents and representatives (collectively, the “Seller Indemnified Parties”) from and against any and all losses, damages, claims, liabilities, deficiencies, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including without limitation court costs and reasonable attorney’s fees, that are incurred by Buyer (collectively, “Losses”) arising in whole or in part out of or by reason of (i) the use by Buyer or its agents, employees or customers of the Goods, including the failure of Buyer or its agents, employees or customers to follow directions, instructions, warnings or recommendations furnished by Seller in connection with such Goods, (ii) the failure of Buyer or its agents, employees or customers to comply with all applicable laws, regulations and ordinances, (iii) the negligence of Buyer or its agents employees or customers, (iv) any materials provided by Buyer or any third party at Buyer’s direction or request for use in the Goods or (v) any third party claim under any theory of legal liability alleging infringement of any Third Party Rights to the extent that such claim relates to the Artwork requested by Buyer. Notwithstanding anything to the contrary in this Section 11, Seller may select its own legal counsel to represent its interests, and Buyer shall: (i) reimburse the Seller Indemnified Party for its costs and attorneys’ fees immediately upon request as they are incurred, and (ii) remain responsible to the Seller Indemnified Party for any Losses indemnified under this Section 11.
12. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for 5 days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Upon termination, Buyer shall immediately pay to Seller all amounts due under this Agreement.
13. Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
14. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
15. Governing Law; Jurisdiction. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Illinois. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Illinois, in each case located in the City of Chicago and County of Cook, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. BOTH PARTIES WAIVE THE RIGHT TO A JURY TRIAL.
16. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
17. General Provisions. These Terms supersede all other communications, negotiations and prior oral or written statements regarding the subject matter of these Terms. For the avoidance of doubt, except with respect to the incorporation of Artwork, Seller is not restricted in any manner from manufacturing and selling to any third party similar or identical goods to the Goods. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party, and no modification or additional terms shall be applicable to this Agreement by Seller’s receipt, acknowledgment or acceptance of purchase orders, shipping instruction forms or other documentation containing terms at variance with or in addition to those set forth herein. Any such modifications or additional terms are specifically rejected and deemed a material alteration hereof. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
18. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of the corresponding order including, but not limited to, the following provisions: Compliance with Law; Indemnification; Confidential Information; Governing Law; Jurisdiction and Survival.