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Standard Terms and Conditions of Sale:
1. SCOPE AND CONSTRUCTION. THE TERMS AND CONDITIONS OF THIS
AGREEMENT SHALL GOVERN THE SALE OF GOODS BY KIDCARPET.COM
TO BUYER. THE SALE OF GOODS IS CONDITIONAL UPON BUYER'S AGREEMENT
TO ALL OF THE TERMS AND CONDITIONS SPECIFIED HEREIN. BUYER'S
ORDER OF ANY PRODUCTS VIA THE KIDCARPET.COM WEBSITE OR ANY
OTHER ACCEPTANCE OF A PROPOSAL BY BUYER SHALL GOVERN THE RELATIONSHIP
BETWEEN BUYER AND KIDCARPET.COM. ANY CHANGES OR TERMS AND
CONDITIONS WHICH DIFFER FROM THOSE CONTAINED HEREIN ARE EXPRESSLY
REJECTED AND SHALL BE VOID.
2. INTEGRATION AND AMENDMENT. THIS AGREEMENT IS THE COMPLETE
AND EXCLUSIVE AGREEMENT OF THE PARTIES REGARDING ITS SUBJECT
MATTER, AND SHALL SUPERSEDE ANY PREVIOUS COMMUNICATIONS, REPRESENTATIONS,
NEGOTIATIONS, OR AGREEMENTS BETWEEN THE PARTIES REGARDING
SUCH SUBJECT MATTER, WHETHER VERBAL OR WRITTEN. ANY MODIFICATIONS
TO THIS AGREEMENT SHALL BE MADE IN WRITING AND SIGNED BY THE
AUTHORIZED REPRESENTATIVE OF EACH PARTY.
3. WARRANTY. KidCarpet.com makes no representations or warranties
to Customer, or anyone else, with respect to Product manufactured
by any third party. Any warranties of third party manufacturers
shall run directly to Buyer to the extent permitted by law
and KidCarpet.com shall have no liability therefor. KIDCARPET.COM
HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION AND INCLUDING
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY
PARTICULAR PURPOSES WHATSOEVER.
4. POST SALE SUPPORT. If Buyer notifies KidCarpet.com during
the first thirty (30) days following receipt of the goods,
KidCarpet.com shall assist Buyer at no charge and on a best
effort basis, in making a claim against the manufacturer within
a reasonable time as to any defect noted in the goods. In
accordance with manufacturer requirements, Buyers are required
to notify KidCarpet.com of patent defects within 15 days of
acceptance and within 30 days for latent defects. For KidCarpet.com
to recognize a claim as valid, Buyer must submit the following
information: Invoice number, amount of merchandise involved
and the reason for the complaint. Under no circumstance shall
Buyer's making a claim under the manufacturer's warranty or
KidCarpet.com's assistance therein be construed as creating
a separate or independent warranty by KidCarpet.com as to
goods purchased.
5. EXCLUSIVE REMEDIES AND LIABILITY LIMITATION. THE REMEDIES
PROVIDED HEREIN ARE BUYER'S SOLE AND EXCLUSIVE REMEDIES, AND
KIDCARPET.COM'S EXCLUSIVE LIABILITY WHETHER ARISING IN CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER
LEGAL THEORY. BUYER AGREES THAT NO OTHER REMEDY (INCLUDING,
BUT NOT LIMITED TO, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST
PROFITS, LOST SALES, LOST PRODUCTION, OVERHEAD, LABOR, INJURY
TO PERSON OR PROPERTY, OR ANY OTHER INCIDENTAL LOSS) SHALL
BE AVAILABLE TO CUSTOMER. THIS ALLOCATION OF RISK IS REFLECTED
IN THE PRICES OF THE PRODUCTS AND SERVICES. KIDCARPET.COM'S
MAXIMUM LIABILITY HEREUNDER ARISING FROM ANY CAUSE WHATSOEVER
SHALL BE LIMITED TO THE PURCHASE PRICE OF THE PRODUCT OR SERVICE
IN QUESTION. ANY ACTION RELATED TO THIS AGREEMENT, ON ANY
LEGAL THEORY, MUST BE COMMENCED WITHIN ONE YEAR AFTER THE
CAUSE OF ACTION ACCRUES.
6. QUOTATIONS: All quotations expire automatically thirty
days from date of quotation or earlier by notice from KidCarpet.com.
Unless otherwise noted in writing by KidCarpet.com, all prices
are F.O.B. destination for domestic shipments and Ex Works
(as defined in INCOTERMS 1997) for international shipments;
and risk of loss in transit is on Customer. Depending on residence,
prices may not include applicable taxes, however designated,
levied or based upon the goods or services being quoted. If
taxes are not included, Buyer agrees to pay all such taxes
or provide acceptable evidence of exemption therefrom.
7. TIMING: All delivery/shipping and service dates stated
by KidCarpet.com are approximate dates only and estimated
in good faith to the best of KidCarpet.com's ability and are
dependent upon KidCarpet.com's prompt receipt of all necessary
information from Customer. Time shall not be deemed to be
of the essence in KidCarpet.com's performance of this agreement,
and no penalty clause of any description in any specification
or order will be effective unless specifically approved in
writing by an authorized officer of KidCarpet.com. In any
event delivery/shipping and service dates are always quoted
subject to unavoidable delays due to causes beyond KidCarpet.com's
control including but not limited to strikes, casualty, war,
acts of God, or government action.
8. PAYMENT TERMS. KidCarpet.com shall invoice Buyer for products
ordered based upon the payment appearing on the website. Payment
for an individual sale in excess of Two Thousand Dollars ($2,000)
must be made by certified check or bank guaranteed check.
Payment terms for domestic orders are net 10 days from date
of invoice, unless otherwise provided in the quotation. For
international orders, KidCarpet.com reserves the right to
specify prepayment, letter of credit, or payment net 10 days
from the date of invoice. Each shipment shall be considered
a separate and independent transaction and payment must be
made accordingly. If the financial condition or credit of
Buyer at any time in the judgment of KidCarpet.com, does not
warrant shipment of goods ordered, KidCarpet.com may at its
option require full payment prior to shipment or refuse to
ship and terminate any order outstanding without liability
to KidCarpet.com. Should Buyer become delinquent in the payment
of any sum due, KidCarpet.com shall not be obligated to continue
performance. If any amount is not paid when due, to the extent
permitted by law a late fee of 1.5% per month (or any part
thereof) shall be charged on past due amounts until paid.
Buyer hereby agrees that no action on the part of or condition
of Customer, including but not limited to insolvency, bankruptcy
or forced liquidation shall relieve Buyer of its responsibility
to pay KidCarpet.com invoices in accordance with the terms
and condition of this Agreement.
9. CANCELLATION: Once accepted by KidCarpet.com, an order
is not subject to cancellation in whole or in part by Buyer
without KidCarpet.com's prior written consent. Any such cancellation
shall be subject to a cancellation charge as determined by
KidCarpet.com to cover any loss that may be incurred by KidCarpet.com
as a result of such cancellation, including without limitation
a 25% product restocking charge.
10. BUYER RESPONSIBILITIES: Buyer shall be solely responsible
for the accuracy and adequacy of the information provided
to KidCarpet.com, and KidCarpet.com shall not be liable for
any damages resulting from the loss, disclosure or inaccuracy
of such information. Buyer shall, for those contracts which
include on-site installation, have the installation site prepared
at its expense prior to the scheduled installation date to
enable prompt delivery and commence installation. Buyer shall
not send or use goods sold by KidCarpet.com outside the United
States except in compliance with U.S. export regulations and
restrictions.
11. GENERAL INDEMNITY: Buyer agrees to take all necessary
precautions to prevent injury to KidCarpet.com and its employees
or damage to KidCarpet.com and shall indemnify, hold harmless,
and defend KidCarpet.com from and against any and all suits,
actions, damages, costs, losses, expenses (including reasonable
attorney's fees), and the liabilities arising from or in connection
with any claim of injuries to person or damage to property
resulting in any way from any act, omission, or negligence
on the part of Buyer in the performance or failure to perform
any obligation under this Agreement, excepting only those
losses which are due to intentional acts or omissions of KidCarpet.com.
12. ARBITRATION: As a condition precedent to any right of
action hereunder, any dispute arising out of this Agreement
shall be submitted to a Board of Arbitration composed of two
arbitrators and an umpire meeting in the City of Cincinnati,
Ohio unless otherwise agreed. The members of the Board of
Arbitration shall be active or retired disinterested officials
of carpet companies other than KidCarpet.com. Each party shall
appoint its arbitrator, and the two arbitrators shall choose
an umpire before instituting the hearing. If the respondent
fails to appoint its arbitrator within four weeks after being
requested to do so by the claimant, the latter shall also
appoint the second arbitrator. If the two arbitrators fail
to agree upon the appointment of an umpire within four weeks
after their nominations, each of them shall name three, of
whom the other shall decline two and the decision shall be
made by drawing lots. The claimant shall submit its initial
statement within twenty (20) days from appointment of the
umpire. The respondent shall submit its statement within twenty
(20) days after receipt of the claimant's statement, and the
claimant may submit a reply statement within ten (10) days
after receipt of the respondent's statement. The Board shall
make its decision taking into consideration the custom and
usage of the carpet business. The Board shall issue its decision
in writing upon evidence introduced at a hearing or by other
means of submitting evidence in which strict rules of evidence
need not be followed, but in which cross examination and rebuttal
shall be allowed if requested. The Board shall make its decision
within forty-five (45) days following the termination of the
hearings unless the parties consent to an extension. The majority
decision of the Board shall be final and binding upon all
parties to the proceeding. Judgment may be entered upon the
award of the Board in any court having jurisdiction thereof.
Each party shall bear the expense of its own arbitrator and
shall jointly and equally bear with the other party the expense
of the umpire. The remaining costs of the arbitration proceedings
shall be allocated by the Board.
13. ADDITIONAL PROVISIONS:
a. This Agreement shall be binding upon and inure to the
benefit of the successors and permitted assigns of the parties
hereto. Neither party shall assign this Agreement or any rights
or obligations under it without the prior written consent
of the other.
b. If any provision of this Agreement is held illegal or
unenforceable by any court, such provision shall be deemed
separable from the remaining provision of this Agreement and
shall not affect or impair the validity or enforceability
of the remaining provision of this Agreement.
c. This Agreement shall be governed by the laws of the State
of Ohio, without regard as to its conflict of law provisions.
KidCarpet.com and Buyer hereby consent to the jurisdiction
of the commonwealth of Kentucky and agree that any arbitration
or other subsequent action convened pursuant to this Agreement
shall be held in Cincinnati, Ohio.
d. The failure of either party to enforce, in any one or
more instances, any of the terms or conditions of this Agreement
shall not be construed as a waiver of the future performance
of any such term or condition.
e. All headings used in this Agreement and its attachments
are intended for convenience of reference only and shall not
affect the construction or interpretation of the Agreement.
f. Neither party shall be liable for its failure to perform
any of its obligations hereunder during any period in which
such performance is directly delayed by the occurrence of
events beyond the control of the failing party such as fire,
explosion, flood, storm or the acts of God, war, embargo,
riot, or the intervention of any governmental authority, provided
that the party suffering the delay immediately notifies the
other party of such delay.
h. Any limitations of liability made shall survive any termination
or expiration of this Agreement.
i. Each party agrees that it will not solicit or recruit,
directly or indirectly, or hire, for a period of two years
after completion of the work hereunder any employee of the
other unless written permission has been provided prior to
discussions with or solicitation of an employee
j. Each party represents that it has full power and authority
to enter into and perform this Agreement, and the person signing
this Agreement, on behalf of each, has been properly authorized
and empowered to enter into this Agreement, understand it,
and agrees to be bound by it.
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