TERMS OF SALE:
⓭ ALL SALES ARE FINAL. Accepted orders may not be cancelled by Purchaser and accepted merchandise may not be returned. Should Floor 13 Textiles, llc (defined throughout these Terms of Sale as “Floor 13”) make an exception to this rule and agree to the return of goods a handling charge equal to the greater of 25% of the order value or $100.00, will be levied. No returns or cancellations will be accepted on ‘made-to-order’ (or ‘custom’) pieces. Costs of shipping will be payable by Purchaser. Merchandise returns without a return authorization number pre-assigned by Floor 13, will not be accepted and will be returned to the shipper freight collect. No COD shipments will be accepted.
All monies paid on account of this order shall be credited to the account of the named Purchaser. Floor 13’s acceptance of payment from anyone other than Purchaser shall be as accommodation only and shall not create a vendor-vendee relationship express or implied with a payee other than the Purchaser.
The acceptance of Purchaser’s order is subject to all the terms and conditions hereof, which terms and conditions supersede Purchaser’s order form, if any, and constitute the complete and exclusive statement of the entire agreement between Purchaser and Floor 13. No course of prior dealings between the parties and no trade usage shall be relevant to supplement or explain any term herein. This writing shall be binding as to the merchandise specified, either (a) when signed and returned by Purchaser; (b) when retained by Purchaser for five (5) days without objection; (c) when Purchaser submits an e-mail or other document accepting or referencing this writing or Floor 13’s Sales Order; (d) when Purchaser has accepted delivery of any part of the merchandise or has furnished to Floor 13 specifications or assortments, delivery dates, shipping instructions or instructions to build and hold; or (e) when Purchaser has otherwise confirmed acceptance, expressly or impliedly.
This Agreement is not binding on Floor 13 until accepted and approved by an authorized representative of Floor 13. If any part of the terms and conditions stated herein are held void or unenforceable, such part will be treated as severable, leaving valid the remainder of the terms and conditions.
This Agreement shall be governed by the laws of the State of New York, and cannot be changed, except by a further writing signed by the party against whom such change is sought to be enforced. Purchaser consents to the exclusive jurisdiction of the federal and state courts located within the county of Dutchess, State of New York in connection with any controversy or claim arising out of or relating to this Agreement.
⓭ CREDIT TERMS. All orders are Proforma unless otherwise stated on quotation. Open terms are available upon request and review of consistent business. Each shipment made is considered a separate sale. Floor 13 shall have the right to charge the Purchaser interest computed at the lesser of one percent (1%) per month, or at the highest rate permitted by law from the date payment is due. Purchaser will be liable for all reasonable costs, expenses and fees, including attorney’s fees, incurred by Floor 13 in collecting monies due or to become due hereunder.
⓭ ORDERING INFORMATION. Purchase orders must be submitted to Floor 13 in writing and must provide complete information, including billing and shipping addresses and phone numbers. If items are not in stock at time of order, up to a 14 week lead time may apply. The lead time for custom items or quantity orders will be quoted on their own. Please expect overage of up to 5% on running line items and 10% on custom items billed on final invoice
Orders will be processed as indicated on Floor 13’s order confirmation. Floor 13 may accept, at their discretion, reasonable changes to orders with the following conditions: 1) Requests must be submitted in writing and received in time to be implemented. 2) Additional charges may be applied for materials, labor and administrative costs. Minimum order yards/quantities are indicated per item. If a quantity below item minimum is needed, it will be sold at the approval and discretion of Floor 13 and will incur a cut fee that will be determined and time of inquiry. Goods sold by the yard are sold in half yard increments only. Please check each item for specific minimum order requirements.
Custom colors and custom constructions are available. All custom orders are subject to acceptance. There may be a minimum $50.00 non-refundable strike-off fee for custom development, which is applied towards the placement of a custom order. Custom quotations, minimums, strike-off fees and lead times are available upon request from your Floor 13 sales representative. Up to 10% variance will be charged and shipped on all custom orders. A deposit is required upon placement of order as noted on quotation. No cancellations or refunds are allowed for custom orders.
⓭ PRICES. All prices quoted herein are net per unit – yard – FOB USA (unless otherwise quoted) and are exclusive of freight, insurance, special processing or local delivery charges. Floor 13 reserves the right to change the prices without notice prior to order confirmation. Custom quotations are honored for a period of 30 days from issuance.
⓭ SHIPPING. All shipments are made FOB point of origin. Delivery arrangements are the responsibility of Purchaser and complete shipping method and route instructions must be forwarded to Floor 13. Complete street addresses, including zip codes, are required; Floor 13 cannot ship to a PO Box. If such instructions are not received, Floor 13 will determine the best method and route. Purchaser is responsible for all shipping costs incurred as determined by Floor 13. If Purchaser arranges for delivery of the merchandise, the carrier will be deemed the agent of Purchaser and a $50.00 service charge will be added to the order. Floor 13 shall not be responsible, in any event for any damage caused to the merchandise during shipment, or in storage. Purchaser should report, in writing, such damage directly to the carrier. All claims for freight overcharge or damage to goods while in transit must be settled with the carrier.
⓭ DELAY OF DELIVERY. Quoted delivery dates are approximate and Floor 13 shall not be responsible for any delay or failure in performance for any cause beyond Floor 13’s control (including but not limited to supply, transportation difficulties, accidents, fires, acts of God) or any event which interferes with Floor 13’s normal business operations.
⓭ FORCE MAJEURE. Floor 13 is not liable for any delay or failure to deliver or perform due to strike, lock-outs or other labor difficulties, accidents, fires, acts of God, or other cause of like or unlike nature beyond our control.
⓭ WAIVER OF CONSEQUENTIAL DAMAGES. In no event shall Floor 13 be liable for any consequential damages or shall Floor 13’s liability, for any reason, exceed the amount actually paid by Purchaser to Floor 13 for the subject merchandise.
⓭ CLAIMS. Floor 13’s merchandise will substantially conform to the description on the confirmed order, except that such merchandise may vary slightly in finish, color match, weave, texture or pattern from description or sample; described sizes are approximate only. Certain hand-made products are by nature irregular. Slubs, variations in texture and/or color are inherent to some textiles and in no way constitute flaws. Floor 13’s merchandise is not guaranteed against fading or shrinkage. Floor 13 is not responsible for precise color matching due to possible spinning, yarn, weaving or dye lot variations. It is the Purchaser’s responsibility to request cuttings of current stock for approval. Due to inherent qualities of handmade textiles and certain other geometric prints and wovens, side matching may not be exact and cannot be guaranteed. Floor 13’s textiles are not treated or backed unless noted. Costs and arrangements for all special treatments are the responsibility of the Purchaser.
No claim shall be made in any event if the merchandise has been cut, treated, or altered in any way regardless of the reason. Less than the minimum order of the item, used merchandise, custom orders, and cut yardage are not returnable. All claims against Floor 13, including defects, shortages and errors, must be made within 10 days after the receipt of merchandise. Failure to make any claim against Floor 13 within such 10 day period shall constitute acceptance of the merchandise and a waiver of said defects, shortages, errors or other claims.
STANDARD FABRIC LIMITED WARRANTY
- General Warranty. Subject to the terms, conditions, limitations and exclusions contained in this Warranty, Floor 13 Textiles warrants to the Purchaser of Covered Product(s) from Floor 13 Textiles that such Covered Product(s) will at the time of shipment by Floor 13 Textiles to Purchaser be free from defects in manufacturing caused by Floor 13 Textiles, other than Acceptable Defects.
- Certain Defined Terms. “Acceptable Defects” means defects that are acceptable under industry standards enumerated by ASTM D5430, which currently allows a maximum of 10 defects per 60 yard roll, 5 defects per 30 yard roll (and all upward or downward extrapolations based on 1 defect per 6 yards of roll).
“Approved Warranty Claim” means a claim under this Warranty (a) that Floor 13 Textiles has determined is valid (i.e., that such claim is within the scope of this Warranty (including, without limitation, under Section 1 above), has been made timely and otherwise in accordance with Section 4 below and is not subject to any exclusions, limitations or conditions contained elsewhere in this Warranty), (b) that has been timely made within the Warranty Period in accordance with Section 4 below and (c) for which Purchaser has otherwise complied with its obligations under this Warranty,
“Covered Product(s)” means the fabric products manufactured by Floor 13 Textiles and purchased by the Purchaser directly from Floor 13 Textiles.
“Purchaser” means the person or entity who directly purchases the Covered Product(s) from Floor 13 Textiles (as evidenced by the order acknowledgment or purchase invoice generated by Floor 13 Textiles), and not any other person or entity who subsequently purchases, acquires, uses, leases, possesses or otherwise deals in respect of such Covered Product(s).
“Warranty Period” means the one (1) year period beginning on the date that Floor 13 Textiles ships the Covered Product contained in the Purchaser’s applicable purchase order, whether such Covered Product is shipped by Floor 13 Textiles to Purchaser or to another person, entity, designee or destination.
- Warranty Period. This Warranty shall remain in full force and effect during the Warranty Period. This Warranty will not cover any claims made by Purchaser after the expiration of the Warranty Period.
- Warranty Claims and Process. Purchaser must submit any claims under this Warranty in writing to Floor 13 Textiles llc, 19 Arcadian Place, Fishkill NY 12524 (email: firstname.lastname@example.org). All claims must be in writing and contain the following: (1) the name of Purchaser; (2) the name and description of the Covered Product in respect of which the claim is being made; (3) the date of purchase of the Covered Product from Floor 13 Textiles (along with the applicable invoice or order acknowledgment issued by Floor 13 Textiles in respect of such purchase); (4) a detailed description of the manufacturing defect claimed by Purchaser; (5) a detailed description of any damage Purchaser claims has occurred to the Covered Product as a result of the claimed Floor 13 Textiles manufacturing defect; (6) photographs of the Covered Product in respect of which the warranty claim is being made evidencing the damage described in clauses (4) and (5); and (7) a statement describing in detail what the Covered Product has been used for, any upholstery or reupholstery involving the Covered Product and any use of the Covered Product for further installation or inclusion in another product.
Any claim under this Warranty that does not contain all of the items described in the prior paragraph or is received by Floor 13 Textiles after the Warranty Period has expired will not be valid or honored under this Warranty. Floor 13 Textiles will have the right to inspect or perform an investigation in respect of any Covered Product for which Purchaser is making a claim under this Warranty. To that end, Purchaser will cooperate with Floor 13 Textiles in any such inspection and/or investigation. Without limiting the foregoing, Purchaser will provide Floor 13 Textiles or its representatives with physical access to Purchaser’s facilities where the Covered Product is located, will provide Floor 13 Textiles with the Covered Product upon request and will accurately and timely comply with Floor 13 Textiles’ requests and inquiries in connection with such inspection or investigation. Purchaser’s failure to comply or assist with Floor 13 Textiles’ inspection and/or investigation as described in this paragraph will result in the applicable claim being invalid and not honored under this Warranty.
Floor 13 Textiles will, in its reasonable discretion, solely make all determinations as to whether a claim by Purchaser under this Warranty is valid or whether such claim is invalid, limited by the terms of this Warranty (including, without limitation, by reason of the exclusions below), voided by the terms of this Warranty or otherwise affected by reason of the terms of this Warranty. Any and all determinations made by Floor 13 Textiles in respect of claims under this Warranty shall be final and binding on Purchaser (unless Purchaser demonstrates that Floor 13 Textiles has engaged in intentional and willful misconduct in respect of such determinations).
- Warranty Remedies. In the case of an Approved Warranty Claim:
(a) Floor 13 Textiles will replace the Covered Product which is the subject of the Approved Warranty Claim with a mutually agreeable substitute fabric material; provided, however, if Purchaser and Floor 13 Textiles cannot agree on a substitute fabric material, then Floor 13 Textiles will in good faith make the determination as to the substitute fabric material to provide Purchaser in respect of such Approved Warranty Claim; and
(b) In the case of a gross manufacturing defect of the Covered Product caused by Floor 13 Textiles, if Purchaser has incurred costs and expenses which are expressly and directly limited to having to reupholster a Covered Product which is the subject of the Approved Warranty Claim and such costs and expenses are properly and accurately documented by Purchaser in accordance with Section 4 above (and approved by Floor 13 Textiles), then Floor 13 Textiles will pay Purchaser the lesser of (x) such actual costs and expenses described in this clause (b) or (y) $12.00 per yard of Covered Product purchased by Purchaser from Floor 13 Textiles and for which the Approved Warranty Claim detailing the reupholstery costs and expenses described in this clause (b) is being made. For the avoidance of doubt, non-fabric material, labor, overhead, service provider and similar costs and expenses are not costs and expenses covered by or recoverable under this Section 5(b) or this Warranty.
Recovery under this Warranty is expressly limited to the items described in this Section 5, subject to the terms, conditions, limitations and exclusions contained in this Warranty. Without limiting the foregoing, no other costs, expenses or damages (including, without limitation, consequential, lost profit, punitive, extraordinary, incidental, special, indirect or other costs, expenses or damages) are covered by or recoverable under this Warranty.
- Exclusions and Limitation. Notwithstanding anything to the contrary contained in this Warranty, damages, losses, failures, costs or expenses caused by any of the following will not be covered under this Warranty:
(a) Installation of Covered Product(s) in a manner that is contrary to Floor 13 Textiles’ installation guidelines and/or accepted industry proper installation practices;
(b) Use of the Covered Product(s) for any purpose other than those specified in the quote/invoice/order acknowledgment issued by Floor 13 Textiles and pursuant to which Purchaser purchased the Covered Product(s) from Floor 13 Textiles;
(c) Any of the following: (i) mold or mildew; (ii) reverse crocking; (iii) improper use of the Covered Product(s); (iv) improper or deficient maintenance by Purchaser in respect of the Covered Product(s); and/or (v) staining.
(d) Any use of cleaning products or methods not approved in writing by Floor 13 Textiles or failure to comply with Floor 13 Textiles’s cleaning instructions for a particular Covered Product;
(e) Insufficient or improper storage or handling of Covered Product(s);
(f) Sharp edges, points, punctures or lack of sufficient foam and padding in upholstery;
(g) Swivel chairs that can make contact with sharp edged desks, or are worn from excessive abrasion against walls, furniture or any surfaces;
(h) Use of adhesives, materials, tools or equipment that are incompatible with, or cause damage or loss to, the Covered Product;
(i) Inadequate fabrication of the Covered Product which, among other consequences, may cause the seam to fail. Without limiting the foregoing, ACT standards (ASTM D4034 and D3597 Seam Slippage Test) prescribe a minimum of 25 pounds in warp and weft, and Floor 13 Textiles will not be responsible for seam failures where the Covered Product has been tested to exceed 25 pounds in the warp and weft;
(j) Defects directly or indirectly resulting from the design or construction where the Covered Product is located;
(k) Exposure to corrosive or other atmospheric conditions or corroding metals or hardware;
(l) Exposure to chemicals other than cleaning products or methods approved in clause (d) above;
(m) Exposure to harsh environmental conditions;
(n) Acceptable Defects;
(o) Ordinary wear and tear;
(p) This Warranty solely covers Products used and located in guestrooms. Products used or located in public areas are not covered by this Warranty due to, among other things, extreme wear, tear, and abuse; and/or
(r) Any external causes (including, without limitation, an act of God, natural disaster, terrorism, national emergency, war, civil unrest, labor dispute, strike, flood, lightning, severe weather, shortage of materials, failure or fluctuations in public utilities, common carrier, telecommunication, data, network or internet service, or third party non-performance).
Any additional fabric finishes applied to a Covered Product after its purchase from Floor 13 Textiles will void this Warranty.
- Other Terms and Conditions. Purchaser acknowledges and agrees that Covered Product actual fabric and colors may deviate from what is seen online and/or what is seen in memo samples or other promotional materials. Any such deviation or inconsistency is not a recoverable claim, whether under this Warranty or otherwise.
Absent a written agreement signed by an authorized executive officer of Floor 13 Textiles expressly stating otherwise, this Warranty is the sole, exclusive and entire representation, covenant, warranty, guaranty and similar assurance made by Floor 13 Textiles in respect of the Covered Products purchased by Purchaser from Floor 13 Textiles, and all other representations, covenants, warranties, guaranties and similar assurances, whether express, implied, statutory or otherwise (including, without limitation, those arising out of a course of dealing or trade, as to merchantability or as to fitness for a particular purpose), are expressly and voluntarily disclaimed and waived by Purchaser. The express terms of this Warranty are the sole and exclusive terms of this Warranty, and no other terms, conditions or provisions relating to this Warranty shall be binding on Floor 13 Textiles.
This Warranty may not be amended, modified or waived on behalf of Floor 13 Textiles unless the amendment, modification or waiver is in writing and signed by an authorized executive officer of Floor 13 Textiles.
This Warranty is for the sole and exclusive benefit of Purchaser, and may not be assigned or transferred by Purchaser without the prior written consent signed by an authorized executive officer of Floor 13 Textiles, and any attempted assignment or transfer without such prior written consent shall void this Warranty.
This Warranty shall be construed in accordance with and governed by the laws of the State of New York, without regard to the choice of law principles thereof.
Floor 13 Textiles and Purchaser acknowledge, agree and consent to (and waive all objections in connection with) the following: Any suit, action or proceeding with respect to, in connection with, or arising out of this Warranty (a) shall be subject to the exclusive jurisdiction of the Federal and State courts located in Dutchess County, New York, and (b) shall be heard in a trial without a jury. If any suit, action or proceeding at law or in equity is necessary to enforce or interpret the terms of this Warranty, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.