Terms and Conditions
Terms and Conditions for the Sale of Goods
1.
Applicability.
(a) These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) by Luonto Furniture, Inc., a Delaware corporation (“Seller”) to a customer of Seller (“Buyer”). Acceptance of orders is based on the express condition that Buyer agrees to the Terms, and the placing of any order by Buyer will constitute Buyer’s agreement to these Terms. In addition, all orders for Goods are subject to acceptance by Seller. Seller will acknowledge and accept the orders for Goods by issuing a confirmation of sale to Buyer (the “Order Confirmation”). Buyer shall notify Seller immediately (within 24 hours of receipt) of any error in the Order Confirmation. Seller reserves the right to revoke an Order Confirmation in the event a product has been discontinued or will be unavailable for delivery in a reasonable time. Seller reserves the right to not accept an order that is based on pricing or product specification errors either by Buyer or contained in a Luonto Sales Order. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
(b) The Order Confirmation and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order, shipping request, or such terms. For the avoidance of doubt, Seller’s fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions contained in such forms and does not serve to modify or amend these Terms.
2.
Cancellation of Order.
Buyer acknowledges and agrees that:
(a) Any orders containing In-stock Goods cancelled after 48 hours of receipt of the order confirmation will be subjected to a 10% cancellation fee. Once the shipment notice has been sent, all sales are final, regardless of whether the 48 hour period is passed. Order modifications or cancellations or Made to Order pieces will be treated on a case by case basis.
(b) Made To Order Goods can not be canceled after 3 business days following Buyer’s receipt of the Order Confirmation, and, except as otherwise provided in these Terms, such Goods are not returnable at any time.
(c) Buyer must provide Seller written notice of an order cancellation within the appropriate time frame, and Buyer is responsible for obtaining written confirmation from Seller of such order cancellation within such appropriate time frame.
3.
Changes to Order.
Buyer acknowledges and agrees that changes to an Order must be in writing, require prior written approval by Seller, and are subject to Seller’s ability to make such requested changes. Notwithstanding anything herein to the contrary, Buyer acknowledges and agrees that changes to an Order will not be approved by Seller once Seller has commenced production on such Goods. Any approved changes to an Order will be subject to added costs associated with changes in the price of Goods along with the administrative, cancellation, or stocking fees, and such costs may be up to 50% of the listed Price. Notwithstanding anything herein to the contrary, any Orders containing Customer’s Own Material (“COM”) or Customer’s Own Leather (“COL”) cannot be returned or credited once Seller has commenced production on such Goods.
4.
Showroom Display Goods; Samples of Seller.
(a) Seller will occasionally sell showroom display Goods. Any showroom display Goods are not returnable at any time and are sold in “as is” condition.
(b) Seller’s finish and upholstery samples are only representative of the color and overall appearance and cannot be guaranteed as exact matches. Seller’s fabric, wood, and metal samples vary based on irregularities of manufacture, color, surface, finish, grain and texture, and Seller accepts no responsibility for any complaint arising from the appearance, color, quality, or fading of such materials.
5.
Delivery.
(a) Seller will deliver the Goods within a reasonable time after the receipt of Buyer’s purchase order and Seller’s issuance of the Order Confirmation, subject to availability of finished Goods. Buyer acknowledges and agrees that all quoted completion dates and delivery dates are estimates only, and Seller shall not be liable for (i) any delays in the shipment or receipt of the Goods, or (ii) losses or damages to the Goods incurred in transit to the Shipping Address.
(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to the location designated by Buyer (the “Shipping Address”) using Seller’s standard methods for packaging and shipping such Goods. Notwithstanding anything herein to the contrary, any specialized packaging requested by Buyer in excess of Seller’s standard methods for packaging is not included in the Price. Seller shall, in its sole and absolute discretion, select the carrier used to deliver the Goods. Buyer shall be solely responsible to communicate with the Carrier for scheduling, delivery and receipt of the Goods to the Shipping Address. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Shipping Address. Unless noted otherwise or Seller and Buyer have agreed to different payment terms in a writing signed by both parties evidencing the intent to supersede these Terms, Buyer acknowledges and agrees that (i) all shipping, local delivery, and installation charges are additional and will be added to the final balance of the Price, and (ii) Buyer shall pay to Seller such charges prior to shipment, delivery, or installation of the Goods.
(c) 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.
(d) If for any reason Buyer fails to accept delivery of any of the Goods, or if Seller is unable to deliver the Goods at the Shipping Address because Buyer has not provided appropriate instructions, documents, licenses, or authorizations: (i) risk of loss to the Goods shall pass to Buyer at such time; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
(e) The Buyer can arrange pick up for Goods between the hours of 8 am and 3 pm, the Buyer must schedule a pick up appointment and have it confirmed by the Seller at least 48 hours in advanced. If a Carrier arrives after 4 pm the loading will not occur until the next business day.
6.
Warehousing Fees.
Buyer shall pay a warehousing fee of 1% of the total Price as stated in the Order Confirmation on any Goods not delivered, shipped, or released to Buyer two weeks after Seller provides written notice of such Goods availability for shipment for each week in which Seller is required to hold such undelivered Goods at Seller’s Warehouse. Buyer shall make all payments of the accrued warehousing fees every two weeks by ACH, check, or wire transfer and in United States dollars to the account designated in writing by Seller. In addition to the weekly warehousing fee, any shipments returned to Seller, including, without limitation, such returns as a result of Buyer’s improper failure to accept delivery or otherwise accept the Goods, will require Buyer to pay all additional costs incurred by Seller related to the return and storage of the Goods, including shipping and storage fees. Buyer shall assume all costs and risks to Goods warehoused and Goods will be considered available for delivery for all purposes related to the Terms. In addition to any remedies that may be provided under these Terms, if Buyer fails to make payment in accordance with the terms herein or otherwise fails to comply with any provision hereof, Seller may enforce its remedies under Section 17.
7.
Online Sales Terms.
Buyer is permitted to list any In-Stock style available on their showroom(s) floor and any Seller’s Made to Order style on their online catalog of products or website store. In-Stock styles not available in Buyer’s showroom(s) are NOT to be listed on store website. Under no circumstances will Buyer be permitted to list or sell Seller’s products on third party retailer sites i.e. Amazon, Wayfair.
8.
Shipping Terms.
Imported Goods are FCA Seller’s warehouse located at 1007 Trident Street, Unit A, Charleston SC, 29410 (“Seller’s Warehouse”). Seller shall deliver the Goods in accordance with the terms of this Agreement.
9.
Title and Risk of Loss.
Title and risk of loss passes to Buyer upon Seller’s delivery of the Goods to the carrier selected to deliver the Goods to Buyer (the “Carrier”). 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 South Carolina Uniform Commercial Code.
10.
Amendment and Modification.
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.
11.
Inspection of Goods.
(a) Buyer shall inspect the Goods upon receipt at the Shipping Address, and any claim by Buyer against Seller or the Carrier for shortage, damage, or defect occurring prior to such delivery must be made in writing to Seller and/or the Carrier within 24 hours of receipt of the Goods (the “Inspection Period”), and such writing must be accompanied by the original transportation bill noting that the carrier received the Goods from Seller in the condition claimed. Buyer shall be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller, in its sole and absolute discretion. Acceptance by Buyer of any Goods shall constitute a waiver by Buyer of any default or claim for damages on account of any Nonconforming Goods. “Nonconforming Goods” means only the following: (i) the product shipped is different than identified in the Order Confirmation; or (ii) the product’s label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Seller of any Nonconforming Goods, 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 shall ship, at its expense and risk of loss, the Nonconforming Goods to the facility as designated by Buyer in a writing. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Shipping Address.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 10(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as otherwise provided under Section 10(b) or any other provision of this Agreement, 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.
12.
Product Claims Terms.
Product Claims are available for all products shipped within the Buyer’s state of operation. Any product shipped beyond a state border is void of product claim eligibility. Only spare part orders will be fulfilled for products shipped outside the Buyer’s state of operation.
13.
Price.
(a) 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 issues the Order Confirmation; provided, that the parties agree that Price quotes are valid for 14 days from the date of the order quotation unless extended in writing by the parties. The Prices for the Goods shall be disclosed to Buyer in the Order Confirmation. Notwithstanding the foregoing, Seller reserves the right to change prices, dimensions, and specifications without notice prior to Seller’s issuance of the Order Confirmation. If the Prices should be increased by Seller before delivery of the Goods to a carrier for shipment to Buyer, then these Terms shall be construed as if the increased prices were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased prices.
(b) Unless noted otherwise, all Prices are listed in United States dollars and are exclusive of shipping charges, in-transit insurance, storage charges, local delivery charges, assembly charges, installation charges, and all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed, either directly or indirectly, by any foreign or domestic governmental authority, including without limitation any federal, state, or local governmental authority, on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
15.
Payment Terms.
(a) If Buyer submits a credit check application and Seller, in its sole and absolute discretion, determines that Buyer has sufficient credit, Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller’s invoice.
(b) If Buyer does not submit a credit check application or has insufficient credit as determined by Seller, Buyer shall pay all invoiced amounts due to Seller in accordance with the following terms: (i) If the Goods are stock orders, Buyer shall pay all invoiced amounts in full upon receipt of Seller’s Order Confirmation prior to the shipment of the Goods to Buyer; and (ii) If the Goods are Made To Order goods, Buyer shall pay 50% of the invoiced amount on receipt of Seller’s Order Confirmation prior to Seller processing such orders to productions, and, upon the arrival of such Goods at Seller’s Warehouse, Buyer shall pay the remaining 50% balance plus any applicable freight charges, including PPA, prior to the shipment of the Goods to Buyer.
(c) Unless noted otherwise, Buyer shall make all payments hereunder by ACH, check, or wire transfer and in United States dollars.
(d) Buyer shall pay a late payment fee of 8.5% of the outstanding invoice balance per month to all accounts not paid within 30 days from the date of Seller’s Order Confirmation. In addition to the late payment fee, 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 this Agreement 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 if Buyer fails to pay any amounts when due hereunder and such failure continues for 60 days following written notice thereof.
(e) 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.
16.
Additional Terms Regarding Orders Containing COM and COL.
(a) Buyer acknowledges and agrees that the Prices of any Orders containing COM and/or COL (i) shall include the additional labor costs for applying or upholstering products with Buyer’s fabric or leather, and (ii) shall not include any shipping costs or any duties for imported or domestic goods, and such costs and duties will be added to the Price. Buyer acknowledges and agrees that all orders containing COM and/or COL will be shipped in accordance with Section 5 of these Terms.
(b) Buyer shall be responsible for providing the proper materials and quantity of the COM and COL that satisfy the minimum requirements of Seller’s COM / COL guidelines currently in effect. Buyer shall provide Seller with a COM / COL sample for approval, and Seller, in its sole and absolute discretion, reserves the right to reject any COM / COL that is considered improper for any reason. Seller accepts no responsibility for any complaint arising from the appearance, durability, quality, fading, placement, or performance of any COM and/or COL incorporated in the Goods. Buyer shall advise Seller in writing of any specific requirements as to special alignment, placement of or detail, front or back of the COM and/or COL, and, in the event Buyer does not provide such a writing, Seller will install the COM and/or COL according to Seller’s guidelines based on standard yardage and square feet requirements.
(c) Seller makes no warranty whatsoever with respect to any COM or COL. Buyer acknowledges and agrees that no warranty will apply to damage or misuse, accidents, abuse, neglect, mishandling or wear resulting from normal use related to any Goods containing COM and/or COL. Please refer to Seller’s Warranty for further details regarding Seller’s manufacturer warranty.
17.
Limited Warranty.
Seller warrants to Buyer that for the period of time SET FORTH IN THE SELLER’s warranty, attached hereto as exhibit a (“Seller warranty”), from the date of delivery to the Shipping Address that such Goods will materially confirm to the Seller’s published specifications as set forth in the seller warranty. Except for the warranties set forth in the seller warranty, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
18.
Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY 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) 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. SELLER’S LIABILITY MAY BE FURTHER LIMITED AS PER THE TERMS OF SELLER’S MANUFACTURER’S WARRANTY.
(c) Any claim by Buyer with reference to the services of Seller or any Goods sold shall be deemed waived by Buyer unless submitted to Seller in writing within 30 days from the date Buyer discovered, or should have discovered any claimed breach.
(d) The limitation of liability set forth in Section 15(b) above shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.
19.
Compliance with Laws.
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.
20.
Remedies Upon Default; Termination.
(a) If Buyer fails to make payment in accordance with the terms herein or otherwise fails to comply with any provision hereof, Seller may, at its option, cancel any unshipped portion of an order, retain the Goods, and declare a forfeiture of the deposit as liquidated damages. In addition to any remedies that may be provided under these Terms, Seller shall have the right to appropriate and sell the Goods and apply the amounts collected to any payment owed to Seller, including but not limited to the unpaid balance of all accounts and any expenses and costs incurred by Seller to exercise Seller’s rights hereunder, as Seller shall determine in its sole discretion. Buyer shall remain liable for the balance of all unpaid accounts.
(b) 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; (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.
21.
Waiver.
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. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
22.
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 and price lists, catalogs, samples, 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.
23.
Drawings; Plans; Dimension; and Samples.
All drawings, descriptions, dimensions and illustrations provided by Seller, including in any price lists, catalogs, or advertisements, are close approximations only. Any examples or samples exhibited or provided by Seller to Buyer are for general informational purposes only. Nothing in any drawings, descriptions, illustrations, lists, advertisements, catalogs, or samples shall be deemed to create a representation or warranty or serve as the basis for any claim against Seller. Buyer acknowledges and agrees that furniture or other Goods may be handmade or specially treated or processed and are subject to slight variations.
24.
Force Majeure.
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, hurricane, tornado, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national or state emergency, revolution, insurrection, epidemic, pandemic, lockouts, shortages of labor, raw material, production, or transportation facilities, strikes or other labor disputes (whether or not relating to either party’s workforce), other contingencies of manufacture or shipment, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials from Seller’s usual sources of supply, materials or telecommunication breakdown or power outage. In the event of any delay in Seller’s performance due, in whole or in part, to any cause beyond the reasonable control of Seller, Seller shall have such additional time for performance as may be reasonably necessary under the circumstances. Buyer’s acceptance of any Goods shall constitute a waiver by Buyer of any claim for damages on account of any delay in delivery of such Goods.
25.
Assignment.
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.
26.
Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement 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.
27.
No Third-Party Beneficiaries.
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.
28.
Governing Law.
All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of South Carolina without giving effect to any choice or conflict of law provision or rule (whether of the State of South Carolina or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of South Carolina.
29.
Submission to Jurisdiction.
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 South Carolina in each case located in the City of Hanahan and County of Berkley, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
30.
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 Order 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.
31.
Severability.
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.
32.
Survival.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information Governing Law, Submission to Jurisdiction, and Survival
exhibit A: SEller Warranty Terms and Conditions