Acceptance. By purchasing and accepting delivery of products supplied by Chimney Design Solutions, Inc. (“CDS”) (“Products”) you agree to be bound by these terms and conditions (the “Terms and Conditions”). These Terms and Conditions supersede and replace any purchase order or other document submitted by you that are inconsistent with, or are in addition to, these Terms and Conditions.
Changes. Any change to your order may only be made with the advance approval of CDS, which approval may be contingent on your payment of CDS’s costs or other charges, including, but not limited to, storage and shipment costs, costs or producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed on CDS by its suppliers, and any other costs resulting from cancellation.
Delivery; Inspection. The method of shipment for any particular sales order shall be agreed to by you and CDS. Immediately upon your receipt of any Products shipped hereunder, you shall inspect the same and shall notify CDS in writing of any claims for shortages or visual damage and shall hold such Products pending CDS’s written instructions concerning disposition. If you fall to notify CDS within twenty-four (24) hours after the Products have been received by you, such Products shall conclusively be deemed to be irrevocably accepted.
Delays. Unless otherwise agreed in writing, any specified delivery dates are estimates only and do not represent a promise by CDS to deliver Products at a date certain. CDS shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond CDS’s reasonable control, including, without limitation, any governmental act, regulation or request affecting the conduct of CDS’s business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor disputes, flood, windstorm or other acts of God, delay in transportation, or inability to obtain necessary labor, fuel materials, supplies at current prices. If, for reasons other than the foregoing, CDS should delay or not deliver Products, your sole and exclusive remedy against CDS is to cancel your order by written notice to CDS.
Payment. Unless otherwise stated, payment in full shall be made within 30 days or invoice. You agree to pay all costs, including, but not limited to, reasonable attorney and accounting fees and other expenses of collection resulting from any default by you in any of the terms hereof. Invoices remaining unpaid after their due date will be subject to an interest charge of 1.5% per month (or the maximum rate allowed by law). You must pay all costs of collection on unpaid amounts, including (without limitation) attorneys’ fees and related costs.
Taxes and Other Charges. CDS shall not be responsible for the payment of any use tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between, with the sole exception of any sales taxes invoiced and collected from you by CDS. All other such charges (if any) must be paid by you separately and in addition to the prices quoted or invoiced. In the event CDS is required to pay any sum tax, fee or charge, you shall reimburse CDS therefore; or, in lieu of such payment, you shall provide CDS at the time the order is submitted a valid and current exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
Pricing. Any quotation provided by CDS is firm only if you place a corresponding order within the time specified on the quote or, if no time period is mentioned, within 30 days. You must request shipment of the entire quantity or Products ordered within 90 days from the date of order, otherwise, CDS’s standard prices at time of shipment may apply, at CDS’s option, to future deliveries.
Warranties. CDS warrants that its products shall, at the time of delivery, conform to the written description of such products as provided to you by CDS. THIS WARRANTY IS EXCLUSIVE, AND CDS MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY THIRD-PARTY PATENT OR INTELLECTUAL PROPERTY RIGHTS. CDS’s warranties made in connection with this sale shall not be effective if CDS has determined, in its sole discretion that you have misused the Products in any manner, have failed to use the Products in accordance with industry standards and practices, or have failed to use the Products in accordance with instructions, if any, furnished by CDS. CDS’S SOLE AND EXCLUSIVE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO PRODUCTS PROVED TO CDS’S SATISFACTION TO BE DEFECTIVE OR NONCONFORMING SHALL BE REPLACEMENT OF SUCH PRODUCTS WITHOUT CHARGE OR REFUND OF THE PURCHASE PRICE, IN CDS’S SOLE DISCRETION, UPON THE RETURN OF SUCH PRODUCTS IN ACCORDANCE WITH CDS’S INSTRUCTIONS. CDS SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS, EVEN IF CDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, LOSS OF REVENUE OR PROFITS, ANY LIABILITY OF BUYER TO A THIRD PARTY, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY OR PROPERTY DAMAGE. THE EXCLUSION OF SUCH DAMAGES AND/OR CLAIMS SHALL BE DEEMED INDEPENDENT OF, AND SHALL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY ARISING FROM THE PURCHASE AND/OR THESE TERMS AND CONDITIONS. CDS’S LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO CASE EXCEED THE CONTRACT PRICE FOR THE SPECIFIC PRODUCTS THAT GIVE RISE TO THE BREACH. THESE EXCLUSIONS AND LIMITATIONS ON DAMAGES SHALL APPLY REGARDLESS OF HOW THE LOSS OR DAMAGE MAY BE CAUSED AND AGAINST ANY THEORY OF LIABILITY, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY OR ANY OTHER THEORY. ALL CLAIMS MUST BE BROUGHT WITHIN ONE (1) YEAR OF SHIPMENT, REGARDLESS OF THEIR NATURE.
Use of Products. You acknowledge that the Products have not been independently tested by CDS for residential, commercial or any other use, unless otherwise stated in CDS’s literature furnished to you. You expressly represent and warrant to CDS that you will properly test, use, manufacture and market any Products purchased from CDS and/or materials produced with Products purchased from CDS in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable laws and regulations, now and hereinafter enacted. You have the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using Products purchased from CDS. You also assume the duty to warn your employees, those associated with you and any auxiliary personnel (such as freight handlers, etc.) of any risks involved in using or handling the Products. You agree to comply with instructions, if any, furnished by CDS relating to the use of the Products and not misuse the Products in any manner.
Patent Disclaimer. CDS does not warrant that the use or sale of the Products delivered hereunder will not infringe the claims of any United States or other patents covering the product itself or the use thereof in combination with other products or in the operation of any process.
Returns. Product returns are manufacturer specific. Some Products: (i) cannot be returned, (ii) can be returned within a certain period of time for a restocking fee, and/or (iii) can be returned after deducting the cost of bringing the Product into salable condition. You should always discuss the Products return policy with CDS before the Product is purchased. Products may not be returned for credit except with CDS’s and the manufacturer’s permission, and then only in strict compliance with CDS’s and the manufactures return shipment instructions. You must obtain advance written authorization from CDS and a written return authorization document in the form then in use by CDS, prior to returning any Products. Any returned Product may be subject to an additional processing fee and must be returned in accordance with the manufactures instructions but in no event after the expiration of 90 days of purchase.
Technical Assistance. At your request, CDS may, in CDS’s sole discretion, furnish technical assistance and information with respect to CDS’s Products. CDS MAKES NO WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO TECHNICAL ASSISTANCE OR INFORMATION PROVIDED BY CDS OR ITS PERSONNEL. ANY SUGGESTIONS BY CDS REGARDING USE, SELECTION, APPLICATION OR SUITABILITY OF THE PRODUCTS SHALL NOT BE CONSTRUED AS AN EXPRESS WARRANTY UNLESS SPECIFICALLY DESIGNATED AS SUCH IN A WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF CDS.
Miscellaneous. CDS’s failure to strictly enforce any particular term or condition contained herein or to exercise any right with respect to your order shall not constitute a waiver of CDS’s right to strictly enforce sum terms or conditions or exercise such right thereafter. All rights and remedies are cumulative and are in addition to any other rights and remedies CDS may have at law or in equity. Any waiver of a default by you shall be in writing and shall not operate as a waiver of any other default or of the same default thereafter. If any of these terms shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. These Terms and Conditions shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors and assigns.
Governing Law, Disputes. All disputes allegedly arising from the legality, interpretation, application, or performance of your order, the Products or any of these Terms and Conditions shall be governed by the laws of the State of New Jersey including its conflict of laws principles. Each party agrees that any dispute arising between them which results in either party instituting court proceedings shall be litigated in the Federal District Court for the District of New Jersey if a basis for federal court jurisdiction is present and otherwise in the New Jersey State Courts. The parties agree to waive, to the fullest extent permitted by law, any and all rights to a trial by jury in connection with any dispute.