Terms and Conditions
SALE ON APPROVAL/PURCHASE ORDER TERMS AND CONDITIONS
UNLESS OTHERWISE EXPRESSLY PROVIDED HEREIN, THIS PURCHASE ORDER (“ORDER”) CONSTITUTES THE ENTIRE CONTRACT BETWEEN AMI AUSTIN HOME AND THE BUYER (“BUYER”) COVERING THE GOODS (“GOODS”) DESCRIBED HEREIN. ANY PROVISIONS IN ANY ACKNOWLEDGMENT FORM OR OTHER DOCUMENT WHICH VARY FROM OR ARE ADDITIONAL TO THE PROVISIONS OF THIS ORDER SHALL NOT BINDING AMI AUSTIN HOME UNLESS AMI AUSTIN HOME EXPRESSLY ASSENTS THERETO IN WRITING.
1. Prices. If the face of this Order omits price terms, the price for the Goods to be provided hereunder shall be the lower of: (a) the price last quoted by Ami Austin Home or (b) the prevailing market price at the time of shipment or performance. Buyer shall pay any applicable Tennessee sales taxes and all other taxes levied on the Goods.
2. Inspection and Acceptance. Client may inspect the Goods at the time of delivery of the Goods, notwithstanding Buyer’s having paid the quoted rate or price or any portion thereof prior to inspection. Ami Austin Home shall exert its best efforts to coordinate with manufacturers or other third parties to redo or repair any products which have been delivered in an unworkmanlike manner or which may be otherwise rejected as Goods found to be defective or in breach of warranty. Failure to inspect the condition of the Goods shall be deemed to constitute: (a) acceptance of any defective, unworkmanlike, or nonconforming work product or Goods; and (b) waiver of any of Buyer’s rights or remedies arising by virtue of any defect or nonconformance. Buyer’s failure to specify any defect or nonconformance in rejecting any or all of the work product or Goods shall prevent Buyer from relying on such defect or nonconformance at a later date to establish a failure of the work product to conform to generally accepted industry standards for similar work product or justify rejection.
3. Payment. Unless otherwise specified in this Order, payment shall be due in full upon placing this Order. Buyer shall pay all packing, storage, freight, and transportation costs associated with this Order unless this Order specifies otherwise. If such packing, storage, freight, and transportation costs are unknown at the time of placing this Order, such costs shall be due in full before shipment or delivery of the Goods to Buyer.
4. Transportation and Risk of Loss/Packing, Marking and Shipping. With respect to Goods sold hereunder, the terms, choice of carrier, and routing of shipment shall be specified as Ami Austin Home shall direct Ami Austin Home may revise shipping instructions as to any unshipped Goods. Shipment shall be F.O.B. place of shipment unless otherwise specified. When shipment is F.O.B. place of shipment, risk of loss shall pass to Buyer upon delivery of the Goods to the common carrier. Ami Austin Home shall not be liable for any claims for damages to the Goods that result from shipment, and Buyer shall be make any and all claims for such damages resulting from shipment directly to the common carrier. Buyer shall be responsible for any and all separate or additional charges for containers, crating, boxing, bundling, dunnage, storage, or similar procedures, if any.
5. No Change Orders/Cancellation. Buyer may not under any circumstances make changes to the specifications of Goods ordered hereunder or cancel this Order in whole or in part at any time whatsoever. There shall be no refunds, exchanges, and/or credits of the payment made for any such Goods.
6. Prompt Delivery of Conforming Goods. With respect to Goods ordered or specially ordered hereunder, Ami Austin Home agrees to exert its best efforts to meet any scheduled delivery dates, provided, however that failure of such efforts to achieve prompt delivery shall not impose liability for such failure on Ami Austin Home, regardless of whether such delay or failure is actually or proximately caused by Ami Austin Home, other parties, acts of God, strikes, boycotts, other labor troubles, production delays, scarcity of resources, laws including changes therein, government orders, riots, war, fire, weather, earthquake or actual or proximate causes of any other type whatsoever. Ami Austin Home agrees to notify Buyer immediately if at any time it appears that the any scheduled delivery may not be timely met.
7. Excuse of Ami Austin Home Performance. Ami Austin Home’s performance hereunder shall be excused if rendered impossible or “impractical” as a result of an act of God, including, without limitation, strikes, boycotts, other labor troubles, production delays, scarcity of resources, laws including changes therein, government orders, riots, war, fire, weather, earthquake, or actual or proximate causes of any other type whatsoever. Ami Austin Home shall have no liability for the breach of performance on the part of any manufacturer.
8. No Warranties. Ami Austin Home makes no representations or warranties with respect to the Goods, but Ami Austin Home shall assign any warranty of the manufacturer to the Buyer.
9. Designs, Tools and Materials Supplied by Buyer. If the Goods are to be manufactured or delivered in accordance with designs, drawings, or blueprints furnished by Buyer, or are to incorporate or utilize materials supplied by Buyer, Ami Austin Home shall return the same to Buyer at the earlier of completion of this Order or cancellation of this Order.
10. Sales on Approval. With respect to Goods sold on approval hereunder, Buyer shall provide Ami Austin Home with its payment information prior to such sale and shall return the Goods to Ami Austin Home in their original condition within forty-eight (48) hours. If the Goods are not returned or are not returned in their original condition within such time, Buyer shall pay to P & B the cost of the Goods.
11. Waiver and Modification. The waiver of any term, condition, or provision of this Order by Ami Austin Home shall not be construed as a waiver of any other such term, condition, or provision, nor shall such waiver be deemed a waiver of a subsequent breach of the same term, condition, or provision. To be binding upon Ami Austin Home, any modification of this Order must be in writing and signed by Ami Austin Home’s authorized representative.
12. Governing Law. This Order is deemed made in the State of Tennessee and shall be governed by Tennessee law without regard to its choice of law provisions. All litigation under this Order will be brought in the state courts of Shelby County, Tennessee, or in the U.S. District Court for the Western District of Tennessee.
13. Remedies. If Buyer breaches any terms or conditions of this Order, Ami Austin Home may exercise, singly or in any combination with any order, all rights and remedies available to Ami Austin Home at law or in equity, including, without limitation, the right to specific enforcement. IF AMI AUSTIN HOME IS IN BREACH OF ANY TERMS AND CONDITIONS OF THIS ORDER, BUYER’S EXCLUSIVE REMEDY SHALL BE TO RECOVER THE PURCHASE PRICE OF THE GOODS PROVIDED HEREIN. IN NO CASE WILL AMI AUSTIN HOME BE LIABLE TO BUYER FOR INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES.
14. Bankruptcy or Insolvency. In the event of the institution of any proceedings by or against either party hereto, whether voluntary or involuntary, under bankruptcy, reorganization, or insolvency laws, or in the event of the appointment of a receiver or trustee or a general assignment for the benefit of creditors of either party hereto, Ami Austin Home shall be entitled to terminate this Order without incurring any costs or liability to Buyer.
15. General. Ami Austin Home’s warranties and representations, proposals, negotiations, and communications regarding the transaction contemplated hereby and made prior to the date of this Order are incorporated herein. If any of the terms or provisions provided herein are declared invalid or unenforceable by any court or other body, the remaining terms and provisions hereof shall be deemed valid and enforceable to the extent possible.