MAYA ROMANOFF CORPORATION SALES TERMS & CONDITIONS
LIMITS OF AGREEMENT
The Buyer’s payment or partial payment for any Products and/or services hereunder shall constitute Buyer’s acceptance of these terms and conditions. The terms and conditions set forth herein, together with those appearing on any sales acknowledgment form and/or invoice, and on any attachments hereto, shall constitute the entire agreement between The Maya Romanoff Corporation (“MRC”) and the Buyer as to the products and services (the “Products”) sold or provided to Buyer by MRC. NONE OF THE TERMS AND CONDITIONS SET FORTH IN BUYER’S PURCHASE ORDER OR ANY OTHER DOCUMENT WHICH IS SUBMITTED OR UTILIZED BY BUYER WHICH ARE ADDITIONAL TO, INCONSISTENT, OR IN CONFLICT WITH THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE BINDING UPON MRC, AND NOTICE OF OBJECTION IS HEREBY GIVEN TO BUYER, AND MRC HEREBY REJECTS, ANY SUCH ADDITIONAL, INCONSISTENT OR CONTRADICTORY TERMS OR CHANGES. If the terms and conditions set forth herein are deemed an acceptance of a prior offer by Buyer, such acceptance is expressly limited and conditional upon Buyer’s assent to the terms and conditions set forth herein.
Buyer understands that any completion or shipment/delivery schedule provided by MRC is estimated and is presented in good faith by MRC. However, MRC can give no firm assurance that such estimated schedule will be met. Therefore, MRC reserves the right to delay, postpone or terminate completion or shipment/delivery schedules, in its discretion, and MRC shall not be liable to Buyer or any other person or organization for any failure to provide for any reason all or any portion of the Products scheduled and, without limiting the foregoing, MRC shall not be liable for any direct, indirect, incidental or consequential damages resulting from any failure to meet such schedule. MRC’s obligations under the terms and conditions of this Agreement are also subject to delays incident to labor difficulties, fires, casualties and accidents, acts of the elements, acts of God, transportation difficulties, acts of terrorism, inability to obtain equipment, materials or components or qualified labor sufficient to timely perform this Agreement, governmental regulations or other like causes beyond the control of MRC. In the event of any such delays, the provision of the Products specified in any purchase order of the Buyer shall be correspondingly extended, and MRC will endeavor to keep Buyer fully informed as to the status of the Products. Notwithstanding any provision herein to the contrary, MRC shall not be responsible or liable to Buyer, and Buyer agrees to waive, and shall not assert, any claim for any loss or damage for any reason whatsoever resulting from MRC’s delayed performance in delivery of the Products specified by the Buyer in its purchase order, or otherwise, including loss of income and/or profits or incidental, special or consequential damages.
If Buyer elects to use MRC’s carrier, sales will be made to Buyer F.O.B. Destination, Freight Prepaid & Add. Alternatively, if Buyer elects to use its own carrier, all sales will be made F.O.B. Origin, and Buyer will assume title and control of the Products at the moment the carrier accepts Products or signs the bill of lading. In such event, Buyer assumes risk of transportation and is responsible for filing all claims for losses or damages. Buyer shall also be charged an additional box/packaging and handling fee.
Buyer shall inspect the Products immediately upon receipt thereof. All claims for any alleged defect in the Products which is capable of discovery upon reasonable inspection and testing, including, but not limited to, shortage in the quantity of Products delivered, shall be fully set forth in writing and delivered by Buyer to MRC within seven (7) days after delivery of the Products to the Buyer. In no event will claims be permitted for any Product after cutting, hanging, installing or in any way modifying such Products in excess of three (3) panels (total of 9 yards). Failure to provide written notice of any such claim by the Buyer within the time periods set forth in this paragraph shall constitute a waiver of any such claims and shall be an absolute defense to liability of MRC in connection therewith.
PRICE AND PAYMENT TERMS
All Products must be prepaid in full, unless the Product will require MRC four (4) weeks or longer to manufacture. In such case, fifty percent (50%) of the total purchase price is required to place an order, and the remaining fifty percent (50%) is due at completion of the Product. Time of payment is of the essence of this Agreement. MRC shall have no obligation to commence production or ship/deliver any Product if payment as required under these terms and conditions, or other written agreement executed by both MRC and Customer, has not been received by MRC, and Customer agrees not to make any claim against MRC for non-shipment/non-delivery, or for any other reason, where such payment has not been made. All prices of MRC are exclusive of all federal, state, municipal or foreign taxes of any kind, and MRC will not report, collect or pay any tax which may be imposed on Buyer, and Buyer shall report and pay all taxes so imposed and shall hold MRC harmless therefrom. In the event Buyer requests to make payment by wire transfer, Buyer shall be charged an additional fee to cover such wire transfer costs. If MRC agrees to Buyer’s request to make payment by wire transfer, any such wire transfer must be accompanied by the Customer contact information and/or MRC’s Customer Order Number(s) and MRC shall have no obligation to begin production or make shipment/delivery to Customer unless and until Customer first provides MRC banking or other documents, satisfactory to MRC, to evidence that such wire transfer payment has been irrevocably made to MRC’s designated account. Buyer must fax and/or e-mail evidence of such transfer at the time of execution. Payment terms are subject to change at the sole discretion of MRC. Buyer must pay the full balance due on any order within thirty (30) days of notification from MRC of Order Completion and Buyer must pick-up order or Buyer must provide directions for order shipment within thirty (30) days of notification from MRC of Order Completion; otherwise, storage and/or restocking fees will be assessed against Buyer, and Buyer shall be obligated to pay such storage and/or restocking fees as assessed by MRC at MRC’s discretion. MRC reserves the right at any time to revoke any credit extended to Buyer because of Buyer’s failure to pay for any Products when due or for any other reason deemed good and sufficient by MRC. In the event Buyer shall be in default under any of the terms and conditions hereof, or becomes insolvent or proceedings are instituted to declare Buyer bankrupt, or a receiver is appointed for Buyer in any court, MRC, may at its option, utilize any rights available under applicable law, including the right to terminate this Agreement and upon such termination by MRC, any and all claims or demands against Buyer held by MRC shall immediately become due and payable. Buyer shall reimburse to MRC all attorneys’ fees and expenses incurred by MRC in enforcing the provisions of this Agreement.
Buyer shall indemnify, defend and hold MRC harmless against any claims, expenses, damages, costs or losses resulting from any suit or proceeding brought for infringement of patents or trademarks, misappropriation of trade secrets or other proprietary information, unfair competition, or any claim (including but not limited to, commercial, personal injury or product liability claims) relating to alleged defects in the design, instructions or specifications of the Product arising from MRC’s compliance with Buyer’s designs, specifications or instructions.
SALE CONVEYS NO LICENSE
The Products are offered for sale and sold by MRC subject to the condition that such sale does not convey any license (except a non-exclusive license to use and re-sell the Products), expressly or by implication, estoppel or otherwise. MRC expressly reserves all its rights to make, use and sell such Products. Buyer’s purchase of the Products authorizes Buyer to re-sell the Products, and/or advertise the Products for resale, but such use and/or sale of the Products by Buyer shall not be contrary to, and must be consistent with and in compliance with all intellectual property rights of MRC. Buyer shall not use the Products for the promotion of its own products and/or services, or the products and/or services of any third-party without the prior written consent of MRC.
WARRANTIES AND LIMITATIONS
MRC warrants that the Products (other than those materials covered and excluded in Paragraph 8(b), below) are free from defects in materials and workmanship at time of shipment. However, due to the many intricate and extraordinary techniques and processes utilized by the artisans of the Products, minor deviations in the Products are expressly excluded from this warranty. There are no other express warranties contained herein, and all representations or affirmations made, and all samples, illustrations, drawings, and models provided for in any MRC literature are provided for illustrative purposes only. MRC will not be liable under this warranty unless (i) MRC is properly notified in writing by Buyer of any defects within the time frames set forth in Paragraph 4 above; (ii) such Product is returned to MRC pursuant to MRC’s return authorization procedure as referenced in Paragraph 9, below, transportation charges prepaid by Buyer, and (iii) MRC’s examination of such Product shall disclose to MRC’s reasonable satisfaction that such defects have not been caused by misuse, neglect, improper installation, repair, alteration or accident. Installation instructions are customarily included with the Products. If such instructions are not included with the Product, please contact MRC to obtain a copy or visit MRC’s website at http://www.mayaromanoff.com for a copy. Products must be maintained according to MRC’s upkeep specifications, which are included in MRC’s installation instructions or available at http://www.mayaromanoff.com. b. With regard to any materials supplied by Buyer to MRC (including, but not limited to, printed materials, artwork, materials for beading), MRC shall not be liable for the quality or condition of the printing or materials supplied by the Buyer, nor shall MRC have any liability for any incorrect prints or materials sent to MRC by the Buyer, nor shall MRC be liable to Buyer or third parties, or, if during the beading or other processing of Buyer’s artwork, MRC inadvertently damages such materials or artwork. The Buyer shall in all regards be responsible for insuring any printed materials or artwork sent to MRC, with such insurance covering not only damage during shipping or return, but also any damage during any processing, applications, beading, or use with respect to such materials or artwork while in the possession of MRC. c. THE FOREGOING PROVISIONS IN THIS PARAGRAPH 8 CONSTITUTES MRC’S ENTIRE WARRANTY, EXPRESS, IMPLIED AND/OR STATUTORY (EXCEPT AS TO TITLE), AND STATES THE FULL EXTENT OF MRC’S LIABILITY TO BUYER OR TO ANY OTHER PARTY FOR ANY BREACH OF SUCH WARRANTY AND FOR DAMAGES, WHETHER DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL, RESULTING FROM ANY SUCH BREACH. MRC’S WARRANTY HEREIN IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES OF MRC, THE MANUFACTURER OF THE PRODUCTS, AND ANY OTHER ENTITY INVOLVED IN THE MANUFACTURE, SALE, OR SERVICING OF THE PRODUCTS (OR ANY PORTION THEREOF) AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES AND RELATED COMPANIES (HEREINAFTER COLLECTIVELY REFERRED TO AS THE “MANUFACTURING AND SELLING COMPANIES”), WHETHER EXPRESS, IMPLIED OR STATUTORY, OR OTHERWISE CREATED UNDER APPLICABLE LAW INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY AND ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR USE, ALL OF WHICH ARE HEREBY DISCLAIMED BY MRC AND WAIVED BY BUYER. IN NO EVENT SHALL MRC AND/OR THE MANUFACTURING AND SELLING COMPANIES BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, WHETHER OR NOT CAUSED BY OR RESULTING FROM THE NEGLIGENCE OF MRC AND/ OR THE MANUFACTURING AND SELLING COMPANIES, UNLESS SPECIFICALLY PROVIDED HEREIN. IN ADDITION, MRC AND THE MANUFACTURING AND SELLING COMPANIES SHALL NOT BE LIABLE UNDER THIS WARRANTY WITH REGARD TO ANY (A) PRODUCT OR PORTIONS THEREOF WHICH HAVE BEEN SUBJECTED TO ABUSE, MISUSE, IMPROPER INSTALLATION OR ABNORMAL CONDITIONS; AND (B) PRODUCTS WHICH HAVE BEEN TAMPERED WITH, ALTERED OR MODIFIED BY ANYONE NOT APPROVED BY MRC. BUYER’S SOLE AND EXCLUSIVE REMEDY AGAINST MRC UNDER THIS WARRANTY, OR OTHERWISE, WHETHER UNDER CONTRACT, TORT OR STATUTE, SHALL BE, AT MRC’S DISCRETION, THE REPLACEMENT OR REPAIR OF ANY DEFECTIVE PRODUCTS OR REFUND OF ANY AMOUNTS PAID BY BUYER TO MRC WITH RESPECT TO SUCH ALLEGED DEFECTIVE PRODUCTS, OR SUCH REFUND WITH RESPECT TO ANY BUYER’S MATERIALS DAMAGED DURING BEADING OR OTHER PROCESSING/APPLICATIONS BY MRC.
RETURNS AND ADJUSTMENTS
No Products may be returned without the prior written approval of MRC in the form authorized by MRC (and copies provided in connection with). The Product information (e.g. invoice, bill of lading, etc.) must be referenced on all returns. Only Products which are alleged to have been damaged or defective at time of shipment will be considered for return to MRC. Returns must be received within thirty (30) days of the date authorized by MRC. No credit allowances or replacements will be effected until any alleged defects are established to MRC’s reasonable satisfaction by inspection to be performed by MRC at any reasonable time and place MRC designates.
No cancellations or reductions by Buyer of orders will be accepted by MRC after four (4) days from the receipt of payment (or four (4) days from the initial fifty percent (50%) payment for Products that require four (4) weeks or more to manufacture). The foregoing shall not limit MRC’s remedies against Buyer.
CHOICE OF LAW AND FORUM; DISPUTE RESOLUTION
Buyer’s order, and the rights, obligations and performance of the parties hereto, with respect thereto or arising out of or in connection with any purchase or sale of Products, shall be governed by the internal substantive laws of the State of Illinois without regard to conflict of laws principles, and Buyer and MRC hereby agree to opt out of, the provisions of the United Nations Convention on the International Sales of Goods and such provisions and Convention shall not apply. The parties further agree that any action brought by either party regarding this order or relating to any purchase or sale of Products shall be brought and pursued only in the State or Federal courts located in Cook County, Illinois. Buyer hereby consents to the personal jurisdiction of such Courts, and Buyer hereby waives any objection to such venue and personal jurisdiction. If Buyer files any action or claim in any other forum or jurisdiction, Buyer shall, at MRC’s request, agree to the dismissal of such claim or action and reimburse MRC in connection with MRC’s costs and attorneys, fees in having to seek and/or obtain such dismissal and/or transfer to the exclusive court and venue agreed to above by the parties. THE PARTIES MUTUALLY WAIVE ANY RIGHT TO TRIAL BY JURY. EXCEPT FOR A BREACH OR INFRINGMENT OF MRC’S TRADEMARKS, COPYRIGHTS, PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS, AND THE BUYER’S OBLIGATIONS UNDER PARAGRAPH 12, BELOW, EACH PARTY HEREBY EXPRESSLY WAIVES THE RIGHT TO SUE FOR, DEMAND OR RECOVER, LOST PROFITS OR OTHER SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES FOR A BREACH OF OR ANY OTHER ACT OR OMISSION IN CONNECTION WITH OR RELATING TO THESE TERMS AND CONDITIONS OR THE RELATIONSHIP OF THE PARTIES.
All drawings, designs, specifications, manuals and programs furnished to Buyer by MRC shall remain the confidential and proprietary property of MRC. Buyer shall make reasonable efforts to hold such information, except as may be found in the public domain, in strict confidence and not to disclose such information to third parties. All copyrights with respect to any materials or Products made available by MRC shall remain in MRC at all times.
(a) Any failure by any party hereto to enforce at any time any term or condition under this these Terms and Conditions shall not be construed as a waiver of that party’s right thereafter to enforce each and every term and condition.
(b) These Terms and Conditions shall be binding upon the successors and legal representatives of the parties hereto.(c) Buyer shall not assign any agreement with MRC or any interest or rights thereunder, without the prior written consent of MRC. (d) These Terms and Conditions constitute the entire agreement between MRC and Buyer as it relates to the Products and/or services sold or provided to Buyer by MRC, and supersede any and all prior agreements, correspondence or understandings between the parties. No modification of waiver of any provisions of these Terms and Conditions or consent to any departure therefrom shall be effective unless in writing and executed by MRC and Buyer. Buyer and MRC may utilize their other standard sales forms (including purchase orders, invoices, etc.) for record keeping purposes in connection with the sales contemplated hereunder, but unless expressly agreed in a separate writing executed by MRC and Buyer, these Terms and Conditions shall supersede all items, terms and conditions of any such other forms, and such forms shall not have any legal effect, except as expressly provided herein. These Terms and Conditions may be amended only in writing executed by MRC and Buyer.