Standard Terms & Conditions for Sale of Goods
In this document the following words shall have the following meanings: (a) "Buyer" means the organization or person who buys Goods; (b) "Goods" means the articles to be supplied to the Buyer by the Seller; (c) "Intellectual Property Rights" means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable; and (d) "Seller" means Lilly Street Design, Inc. (hereinafter referred to as “Lilly Street” or “We”).
These Terms and Conditions shall apply to sales of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions referred to, offered or relied on by the Buyer whether in negotiation or at any stage in the dealings between the parties, including any standard or printed terms tendered by the Buyer, unless the Buyer specifically states in writing, separately from such terms, that it wishes such terms to apply and this has been acknowledged by the Seller in writing. Any variation to these Terms and Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing and signed by the Seller.
3. Price and Payment
(A) First Time Buyers:
A first time purchase shall be for (i) a minimum of $5,000; or a minimum of 6 pieces. Payment is due upon shipment. If payment is by check, then said check must be deposited and cleared prior to shipment. Unless Buyer and Lilly Street agree to other arrangement.
(B) Returning Buyers:
Reorder minimum is $500, and terms are Net 30, subject to prior credit approval; otherwise payment is due prior to shipment. Orders will only be shipped to accounts that do not have a balance due. Orders to accounts with an open balance will be shipped COD or held until balance is paid. Open balances includes invoices that may not yet be payable in accordance with their terms but are still outstanding. A late fee of 18% per annum will be charged on all invoices not paid within seven (7) days after the terms provided.
(C) Order Fulfillment:
Shipments usually occur within 3 to 4 weeks after an order has been accepted, subject to the availability of materials, supplies, labor and other manufacturing related issues. We reserve the right to cancel the order at any time and for any reason within 2 weeks of the agreed delivery date.
Any items that are missing from a shipment and appear on the invoice must be reported within five (5) days of receipt of shipment. At that time, We will re-ship missing items within two (2) business days if said items are in stock and if they are not in stock, We reserve the right to cancel that portion of the order and credit same against the bill, if on terms, and if paid prior to delivery, to refund that amount; or to manufacture and ship the missing items provided same can be delivered within ten (10) business days after receipt of notice. If We have not been previously notified of missing items, customer is liable for amount due stated on invoice.
Any items that are broken or defective as a result of a manufacturer defect must be reported within five (5) days of receipt of order. We will review the piece in question to determine if the defect is a manufacturing defect. If We determine it to be such, in our sole discretion, We will make the necessary and reasonable repairs and return the product to you at our expense.
Special orders and custom combinations are not returnable, exchangeable or refundable.
Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby affirms that it does not in any way rely on any description when entering into the contract.
Where a sample of the Goods is shown to and inspected by the Buyer, the parties hereto accept that such a sample is representative in nature and the final product may differ slightly as a result of the manufacturing process.
Unless otherwise agreed in writing, delivery of the Goods shall take place at the address specified by the Buyer on, or as close as possible to the delivery date. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. Unless otherwise instructed in writing, all Goods will be sent Federal Express ground delivery and insured in an amount equal to the invoice amount on the Goods. The Buyer shall provide Seller with its Federal Express account number (or other carrier). If Seller does not have such an account, Buyer will pay Seller for the costs of shipment and insurance.
If the Seller is unable to deliver the Goods because of actions or circumstances under the control of the Buyer, then the Seller shall be entitled to place the Goods in storage until such times as delivery may be affected and the Buyer shall be liable for any expense associated with such storage. Buyer shall be and remain responsible for payment of the goods if delivery cannot be affected pursuant to the foregoing.
7. Risk and Title
Risk of loss in the Goods shall pass to the Buyer upon delivery to the carrier entrusted with delivery of the goods to the Buyer. Where the Buyer chooses to collect the Goods itself, risk will pass when the Goods are entrusted to it or set aside for its collection, whichever happens first.
Title in the Goods shall not pass to the Buyer until the Seller has been paid in full for the Goods.
8. Return of Unused Goods
All goods are sold on a firm sale basis, i.e. the Seller will not take back any goods not required or sold by the Buyer, unless otherwise agreed, in which case the following terms apply. Any returns must be authorized in writing by a representative of the Seller before any credit will be given. Where the Seller agrees to accept the return of goods that are not damaged the Buyer will be responsible for the cost of shipment and will ensure that they are carefully packaged to avoid any damage in transit. The Seller will not be obliged to accept any goods that are damaged in any way. Credit of amounts due or paid in will only be given for goods that are in saleable condition.
9. Limitation of Liability
The Seller shall not be liable for any all loss or damage suffered by the Buyer in excess of the contract price for the Goods; Seller shall not be liable for any claims of any other kind or nature including but not limited to loss of profits, consequential damages and any costs and/or expense.
10. Intellectual Property Rights
All Intellectual Property Rights in and to the Goods shall, so far as not already vested, become the absolute property of the Seller. The Buyer shall not at any time attempt to nor duplicate any of the designs of the Seller.
11. Force Majeure
The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may, without liability on its part, terminate the contract.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
13. Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of New York. Any dispute or controversy arising out of or in relation to this Agreement shall be submitted to arbitration in the City of New York, New York in accordance with the Commercial Rules of the American Arbitration Association. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the cost of its or his own experts, evidence and legal counsel. The arbitrator shall have the right but shall not be obligated to award counsel fees and expenses to the prevailing party.
The provisions in this Section shall not limit nor restrict an aggrieved party from seeking to obtain or obtaining equitable relief, including without limitation, injunctive relief, or specific performance in any court of competent jurisdiction, to prevent any breach, threatened breach or continuation of any breach of this Agreement without the necessity of posting a bond or other security.