These terms and conditions of sale shall govern this order and buyer shall be deemed to have agreed to them. Any attempt to change or add to these terms by buyer, or any conflicting terms on any correspondence, purchase order, or other form sent by buyer is hereby objected to and rejected. Buyer shall be deemed to have agreed to these terms and conditions of sale by issuance of an order, by accepting delivery or by making payment hereunder. No oral agreement, course of prior dealings between the parties or trade usage shall amend or supplement any of the terms or conditions herein. All of the terms and conditions of this order and sale appear on this form and no additions or modifications can be made except in a writing signed by both parties that expressly references the amendment of these terms. All references herein to the seller or the company shall mean Rothman Associates, Inc. and brands.
Minimum order requirement for all orders is three (3) yards for fabrics and trim. Incremental yardage is 1 yard. Orders received for cuts other than 1 yard will be rounded up to the next 1 yard increment and billed at that amount. Leather is sold by full hides. Certain hardware is sold in pairs. Wall covering is sold in double roll.
DYE LOT AND OTHER VARIATIONS; INHERENT IMPERFECTIONS
Color will vary from piece to piece and the company does not guarantee the dye lot. The company shall have no liability for variations in color, dye lot or shade. Some collections contain products that are hand-painted or manufactured by hand; slight variances in color, texture and/or weave may occur. There may also be inherent imperfections in certain fibers, metals, leathers or fabrics. None of the foregoing shall be considered defects.
CLIMATIC CONDITIONS; SUITABLE APPLICATIONS; C.O.M. FABRIC
Climatic conditions, including heat, light and humidity levels, within the user’s environment, can affect fabric and wood, and may lead to fading, stretching, shrinking or other damage. Fabric displayed in sample books and memo samples describes the intended application thereof. Hardware is considered a decorative product; while it is also functional, some collections are more appropriate for stationary treatments and others for windows requiring functionality. The selection of fabrics for specific placements or applications is made at the discretion and sole risk of the buyer and the company shall have no liability for such selections. Accordingly, buyers are urged to review the suitability of such choices and any other questions with the company’s Customer Service Department before ordering and to allow sufficient fabric for environmental effects. The company shall have no liability for the buyer’s C.O.M. fabric, its suitability, performance or condition. The company does not guarantee roll direction and is not responsible for errors in application due to roll direction.
FLAME RETARDANT PROPERTIES; TOPICAL TREATMENTS
In accordance with the provisions of the Flammable Fabrics Act, as amended, this merchandise is not intended for use in the manufacture of wearing apparel. Flame retardant chemicals can cause skin irritation, fabric spotting and/or stitching problems. In addition, all of the flame retardant may be removed through machine washing and/or dry cleaning of the fabric. Accordingly, the company shall have no liability for any losses, claims or damage resulting from flame retardant chemicals. Adding topical treatments to any fabric may alter the performance, quality, color or hand. The company shall have no responsibility for any damage to fabric treated beyond regular finishes applied at the mill level.
CREDIT AND PAYMENT TERMS; OFFSETS
Acceptance of orders and shipments shall at all times be subject to approval by the company’s Credit Department, which may at any time in its sole discretion decline to make any shipment except upon terms and conditions satisfactory to it. Subject to credit approval, terms of payment for all goods other than custom orders are net 30 days from the date of the invoice. All orders are subject to the absolute right of the company to require payment of all or any part of the purchase price in advance of delivery. Custom orders requires a minimum deposit of 50% with order and payment of the balance in full prior to shipment. Interest will be charged on all past due accounts at the maximum rate permitted by applicable law. Seller accepts credit cards on new orders only. Credit cards cannot be used to pay open balances. Any indebtedness of buyer to Rothman Associates, Inc. and brands may at the company’s option be credited against amounts owed by the company to buyer. Payments received by the company from the buyer may be applied to any past due invoice or account of the buyer.
DELIVERY SCHEDULES; SHIPPING AND CHARGES; TITLE
In stock cut yardage orders are generally shipped within 48 hours from receipt of a credit- approved order. custom, special-order and non-stock orders have longer lead times. Delivery dates supplied by the company represent its best estimate, but are in no way guarantees of delivery. Accordingly, the company shall have no liability for delays in delivery or failure to meet estimated delivery dates. Shipments are made by UPS domestic, F.O.B. point of origin only by request (must call ). All orders are subject to shipping and handling charges. Title to goods passes upon payment in full; risk of loss passes upon delivery to buyer’s common carrier.
NO THIRD PARTY BENEFICIARIES
No third party shall have any rights with respect to this sale transaction, on any legal or equitable theory of reliance, contract or otherwise, and the company shall have no liability to any such third party, including without limitation, a customer of the buyer or an end user of the company’s products. The company sells “to the trade” only and not directly to consumers; any signatures or payments made by consumers with respect to this transaction shall be deemed to have been made as a convenience only as agent for the trade buyer named herein.
RETURNS AND EXCHANGES
No returns or exchanges accepted unless product is proven defective by Rothman Associates, Inc. All sales are considered final and non-refundable.
NON-CONFORMING OR DEFECTIVE PRODUCTS
Rothman Associates, Inc. and brands reserves the right to repair or replace any defective or nonconforming product, as provided below. All products must be inspected by the buyer or buyer’s customer, workroom or other agent, within ten (10) days after receipt and all defects or damages not sustained in shipment must be promptly reported to the company’s Customer Service Department. All shipments received and signed for by buyer’s receiver must be inspected for damage prior to acceptance and the company must be notified promptly of any problem. All returns for defects must have prior authorization and instructions from the company and must be returned in their original package and in the same condition as when received. If verified by the company to be defective, products will be accepted within sixty (60) days after receipt for repair or replacement, at the company’s sole option. The company will pay all return in/out freight and handling charges in such verified cases. If, upon inspection of an authorized return, the company determines that the claim is unsubstantiated, the return will be rejected and return in/out freight, handling and restocking charges will be assessed. Charges for local repairs will not be accepted without prior authorization from the company. The foregoing provisions shall constitute the buyer’s sole remedy with respect to defective or non-conforming goods. In no event shall seller be liable for any customary variations within industry standards or for imperfections inherent in certain fibers, leathers, metals, fabrics or woods.
All advertising of the company’s products must be dignified, tasteful and professional. Use of seller’s trademarks, trade names, logos, copyrighted materials, digital images or other proprietary materials, in any medium (including without limitation, over the internet), without prior written approval by Rothman Associates, Inc. and brands, is strictly prohibited and may subject an unauthorized user to legal action by the company.
DISCLAIMER OF WARRANTIES; LIMITATION ON LIABILITY
UNLESS OTHERWISE EXPRESSLY OFFERED BY THE FABRIC MANUFACTURER AND INDICATED IN WRITING BY THE COMPANY, SELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY. IN THE EVENT OF SELLER’S LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, BUYER’S SOLE AND EXCLUSIVE REMEDY WILL BE LIMITED AS SET FORTH IN THE SECTION ENTITLED “NON-CONFORMING OR DEFECTIVE PRODUCTS”, TO REPAIR OR REPLACEMENT BY SELLER OF ANY DEFECTIVE OR NON-CONFORMING GOODS FOR WHICH TIMELY CLAIM MAY BE MADE BY BUYER. SELLER EXPRESSLY DISCLAIMS ANY LIABILITY TO BUYER, ITS CUSTOMERS OR TO END USERS OF ITS PRODUCTS, FOR SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGE TO OR LOSS OF OTHER PROPERTY OR EQUIPMENT, PERSONAL INJURY, LOSS OF PROFITS, BUSINESS OR REVENUES, OR COST OR OTHER DAMAGE, LOSS OR EXPENSE FROM ANY CAUSE WHATSOEVER, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SALE OR USE OF ITS PRODUCTS. THE MAXIMUM LIABILITY, IF ANY, OF SELLER FOR ALL DAMAGES HEREUNDER IS LIMITED TO THE PURCHASE PRICE OF THE DEFECTIVE OR NON-CONFORMING PRODUCTS SOLD PURSUANT TO THIS TRANSACTION. ANY ACTION ARISING HEREUNDER MUST BE BROUGHT WITHIN ONE YEAR FROM THE DATE OF SALE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES, CONSEQUENTIAL DAMAGES OR REMEDIES, OR LIMITATION ON THE TIME FRAMES INVOLVED IN SAME, IN WHICH EVENT THESE LIMITATIONS MAY NOT APPLY TO YOU.
COLLECTION; GOVERNING LAW; FORCE MAJEURE
In any action for the collection of, or to enforce payment of, all or part of the purchase price of the products sold to buyer, seller shall be entitled to recover all reasonable collection fees, attorney’s fees and costs, to the extent permitted by law. This transaction shall be governed by and enforced in accordance with the substantive laws of the State of Florida, without regard to principles of conflicts of laws, and buyer hereby consents to the personal jurisdiction of the federal and state courts located in the State of Florida. The company shall not be liable for delay or failure in performance hereunder arising from any act of God or nature, strike, labor disruption, government action, lack of materials or other cause not within its control.