(a) These lindsay cowles llc (“Company”) terms and conditions (“Terms”) apply to all Company sales, until subsequently revised or modified by the Company.
(b) The Company reserves the right to revise or otherwise modify these Terms at any time with or without notice. If revised or modified, the new Terms will be posted on the Company website and will thereafter be immediately applicable to subsequent sales.
(c) These Terms prevail over any of buyer’s general terms and conditions regardless whether or when buyer has submitted its purchase order or such terms. Fulfillment of buyer’s order does not constitute acceptance of any of buyer’s terms and conditions and does not serve to modify or amend these Terms.
(d) All references to the “Company” or “we” shall mean lindsay cowles llc. All references to “purchaser”, “buyer” or “you” shall mean the purchaser of Company products. All references to “products” refers to Company products including, without limitation, wall coverings, fabrics, pillow covers, napkins, rugs and tiles.
2. ACCEPTANCE OF TERMS AND CONDITIONS
All purchase orders are subject to acceptance by the Company. Each order accepted by the Company is sale subject to these Terms and buyer shall be deemed to have agreed to them. Any attempt to change or add to these Terms by purchaser, or any conflicting terms on any correspondence, purchase order, or other form sent by purchaser, is hereby objected to and rejected. Purchaser shall be deemed to have agreed to these Terms by placing an order, accepting delivery or making payment hereunder. No oral agreement, course of prior dealings between the parties or trade usage shall amend or supplement any of the Terms. All of the Terms relating to an order and sale appear on this form and the applicable Company invoice or acknowledgement, and no additions or modifications can be made except in a writing signed by both parties that expressly references the amendment thereof.
All advertising of the Company’s products must be dignified, tasteful and professional. Copies of advertising must be delivered to the Company within 30 days of publication. The Company is authorized to reproduce and publish the advertising at its own cost.
4. CLIMATIC CONDITIONS; SUITABLE APPLICATIONS
Climatic conditions, including heat, light and humidity levels, within the user’s environment, can affect Company products, and may lead to fading, stretching, shrinking or other damage. Accordingly, buyers are responsible for determining the suitability of products before ordering and to allow sufficient product for environmental effects.
5. DYE LOT AND OTHER VARIATIONS; INHERENT IMPERFECTIONS
Color, dyes and shade will vary from piece to piece and the Company does not guarantee their uniformity. There may also be inherent imperfections in certain fabric, fibers and other substrates. None of the foregoing shall be considered defects, and the Company shall have no liability therefore.
6. FEDERAL, STATE AND LOCAL LAWS AND REGULATIONS
It is the sole responsibility of the purchaser to determine whether the products meet standards set by applicable laws and regulations. Adding topical treatments to any product may alter the performance, quality, color or handling, and the Company shall have no responsibility as a result thereof.
7. CLAIMS FOR NON-CONFORMING PRODUCTS
(a) All sales are final.
(b) Purchaser is responsible for inspecting products upon receipt to ensure that they conform to the color, pattern, quantity and other specifications in the Company’s invoice or acknowledgement. No exchanges will be made unless requested within 7 days of receipt and Company authorization has been given. Your request for exchange authorization must include the invoice number, date of invoice, color, pattern, quantity, and reason. No exchanges will be accepted for goods that have been cut, treated, altered, processed, subjected to abuse or misuse, or damaged after shipment by Company.
8. DISCLAIMER OF WARRANTIES
THE COMPANY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. BUYER AGREES TO RELY EXCLUSIVELY ON MANUFACTURER WARRANTIES.
9. LIMITATION OF LIABILITY
(a) IN NO EVENT (TO THE MAXIMUM EXTENT PERMITTED BY LAW) SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THE SALE OR USE OF THE PRODUCTS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY THE COMPANY, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SALE OR USE OF THE PRODUCTS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO THE COMPANY FOR THE PARTICULAR PRODUCTS SUBJECT TO THE CLAIM.
10. FORCE MAJEURE
The Company shall not be liable or responsible to buyer, nor be deemed to have defaulted or breached its agreement with buyer, for any failure or delay in fulfilling or performing any obligation when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the Company 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, lock-outs, 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.
11. RELATIONSHIP OF THE PARTIES
The relationship between the parties is that of independent contractors. Nothing shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
12. GOVERNING LAW; SUBMISSION TO JURISDICTION
(a) All matters arising out of or relating to these Terms shall be governed by and construed in accordance with the internal laws of the Commonwealth of Virginia.
(b) Claims resulting in lawsuits must be filed with the court of competent jurisdiction in the Commonwealth of Virginia, and buyer hereby consents to the personal jurisdiction of the federal and state courts located in Richmond, VA.
March 4, 2019