All Sutton Concepts LLC products are guaranteed to be free of actual defects in material and workmanship, provided any such defect be reported to Sutton Concepts LLC in writing within one (1) year of shipment from factory. This warranty is limited to replacing or repairing, at Sutton Concepts LLC’s option, F.O.B. Sutton Concepts LLC’s factory, any part which, upon Sutton Concepts LLC inspection is found to have a defect in material and/or workmanship. Sutton Concepts LLC in no event shall be liable for indirect or consequential damages arising out of the use of Sutton Concepts LLC products. Components purchased by Sutton Concepts LLC from others for inclusion by Sutton Concepts LLC shall be warranted only to the extent set out above and/or to the guarantee or warranty, if any, made by the supplier of said component.
No warranty is made by Sutton Concepts LLC expressed or implied, that Sutton Concepts LLC products as used in a customer’s design and specifications are fit for that customer’s specific purpose. APART FROM THE ABOVE EXPRESS WARRANTY, THERE ARE NO WARRANTIES, EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
Sutton Concepts LLC expressly reserves the right to substitute materials in the products described in the catalogs and any supplements thereto; however, this shall not apply to special order products and/or custom products where Sutton Concepts LLC is advised in writing of specific material requirements and agrees in writing to comply with the requests for such specific materials. Any and all warranties shall be construed and enforced under the Laws of the State of California.
Terms and Conditions of Sale
1. ORDER PLACEMENT. All goods and services furnished by Sutton Concepts LLC. (“Sutton Concepts”) are provided pursuant to these Terms and Conditions (“Terms and Conditions”) whether provided following an order placed electronically, verbally, or on paper, whether the order is placed directly through Sutton Concepts LLC or through an Sutton Concepts LLC representative, and whether the order is placed following Buyer’s review of Sutton Concepts’s catalog or website, or following receipt of a Quotation only, or following the exchange of other documents (the catalog website Quotation and all other documents, hereafter, jointly, the “Quotation”). Acceptance by Sutton Concepts LLC of Buyer’s order is expressly conditioned upon Buyer’s acceptance of these Terms and Conditions, including those on the face of the Quotation, and any provisions of Buyer’s order in conflict with these Terms and Conditions are expressly rejected. Buyer acknowledges that no representation or warranty other than those contained in this document have been made or relied upon. No additions or modifications shall be valid unless confirmed in writing by Sutton Concepts. SUTTON CONCEPTS IS NOT BOUND TO FURNISH GOODS OR SERVICES EXCEPT IN ACCORDANCE WITH THESE TERMS AND CONDITIONS.
2. PRICE/DELIVERY/DELAY. Prices for goods shall be those in effect on the date of invoice unless otherwise provided by the Quotation or agreed to in writing by Sutton Concepts LLC. Unless otherwise provided on the face of the Quotation or agreed by Sutton Concepts LLC in writing, price and delivery terms shall be F.O.B. shipping point. Unless otherwise agreed in writing, Sutton Concepts LLC will select the route and manner of shipment, reserves the right to make delivery in installments when necessary, to invoice each installment separately, and to expect payment for each installment within Sutton Concepts LLC’s selling terms. All risks of loss or damage shall pass to Buyer at the place and time such goods are placed into the possession of the carrier or shipper, in accordance with the previously referenced F.O.B. shipping point term. Buyer shall be responsible for obtaining and paying for insurance to cover any loss to Buyer. Buyer shall pay Sutton Concepts LLC for the contract price in the event of loss of the goods. If Buyer fails to accept delivery according to the agreed upon delivery schedule, Sutton Concepts LLC may cancel the then remaining balance of the order. Such cancellation, if elected by Sutton Concepts LLC, shall be in addition to, and not in lieu of, any other rights or remedies which Sutton Concepts LLC may have at law or equity. Prices are good for only quantities indicated. If shipment or any other act or condition affecting payment for the goods or any part of them shall be delayed on account of Buyer, payment shall be due as if shipment had been made, a reasonable storage charge may be made, and such storage shall be at the risk of Buyer. Sutton Concepts LLC shall not be liable for any direct, indirect, consequential, special, or incidental losses or damages to Buyer or to any third parties resulting from Sutton Concepts LLC’s delay in shipment regardless of cause, including but not limited to those causes set forth in the Force Majeure section of this document.
3. CHANGES IN SPECIFICATIONS OR DESIGN. If Buyer requests any change in quantity, specification or design relating to any goods or services, or changes of delivery date and/or schedules, such proposed change shall be subject to the terms and conditions of this Quotation and must be approved in writing to be binding upon Sutton Concepts LLC.
4. PRODUCT VARIANCE FROM PHOTOS. Sutton Concepts LLC attempts to provide accurate photographs of the products it offers for sale, but there may be some variation between the photographs and the actual products. Buyer may return any product if the variance is unacceptable to Buyer. Buyer must submit its request for return based on the product variation within thirty (30) days after receipt of the goods.
5. ACCEPTANCE. Goods furnished or services performed by Sutton Concepts LLC will be deemed to have been finally accepted thirty (30) days after receipt by Buyer, unless rightfully rejected within such period by written notice to Sutton Concepts LLC, setting forth all of the defects upon which the rejection is claimed. Claims for factory damage or shortages shall not be considered unless made in writing within thirty (30) days after receipt of the goods or services and accompanied by reference to our bill of lading and invoice numbers. Buyer’s claims for damage or shortage in transit must be filed by Buyer against carrier. Defective goods shall be held for Sutton Concepts LLC’s inspection or disposition. Buyer must note damaged goods or the appearance of probable damage with the freight carrier and on the relevant freight documents at the time of receipt.
6. SUTTON CONCEPTS LLC PROPERTY. All photographs, samples, descriptions, drawings or intellectual property provided by Sutton Concepts LLC to Buyer shall remain the property of Sutton Concepts LLC and shall only be used by Buyer to market Sutton Concepts LLC products to third parties. Buyer shall include in any materials incorporating Sutton Concepts LLC intellectual property, all copyright and trademark notices provided by Sutton Concepts LLC. All such property shall be returned to Sutton Concepts LLC upon demand and any license created hereunder, implied or otherwise, is terminable at will by Sutton Concepts LLC and is hereby expressly terminated pursuant to Section 18 upon termination of this agreement.
7. RETURN POLICY. Buyer shall have no right to return any goods furnished by Sutton Concepts LLC. Sutton Concepts LLC may, in its sole discretion, authorize Buyer to return goods. Sutton Concepts LLC may authorize the return of goods without charging a restocking charge, but in most cases, Sutton Concepts LLC will only authorize the return of goods subject to a restocking charge, the amount of which will depend on the type of goods being returned. The restocking charge shall be deducted from the amount refunded to Buyer.
8. TAXES. Prices do not include any federal, state or local taxes. Any applicable excise, import, sales, use or similar taxes, whether federal, state, provincial or local, and any transportation and other charges shall be the responsibility of and be paid by Buyer and, if paid by Sutton Concepts LLC, Buyer agrees to reimburse Sutton Concepts LLC for any such payment and further agrees that Sutton Concepts LLC may add any such payments to the purchase price of the goods.
9. PAYMENT/CREDIT/SECURITY. Payment shall be due prior to shipment unless adequate credit remains on an account in good standing. All orders received are subject to credit approval. Buyer agrees to submit from time to time to Sutton Concepts LLC those items reasonably requested in order to establish or update Buyer’s credit. Sutton Concepts LLC shall be entitled to charge interest on past due accounts at a rate of 1.5% per month (18% annually). Whenever Sutton Concepts LLC, in good faith deems itself insecure, it may, without prejudice or waiving any other rights or remedies it may have at law or equity, cancel any outstanding orders with Buyer and/or hold production/shipment of any unfilled orders; modify or revoke its extension of credit to Buyer; and take any other steps permitted by law and necessary or desirable to secure Sutton Concepts LLC with respect to Buyer’s payment of goods and services furnished or to be furnished. Buyer will pay Sutton Concepts LLC’s actual costs of collection, including but not limited to court costs, litigation expenses, and reasonable attorney’s fees, incurred for collection of any delinquency. Title to the goods shall remain with Sutton Concepts LLC until Buyer receives physical possession of the goods and the goods are fully paid for by the Buyer. Buyer shall have no right of offset against amounts owed to Sutton Concepts LLC
10. LIMITED WARRANTY/REMEDY. All Sutton Concepts LLC products are guaranteed to be free of actual defects in material and workmanship, provided any such defect be reported to Sutton Concepts LLC ® in writing within one (1) year of shipment from factory. This warranty is limited to replacing or repairing, at Sutton Concepts LLC’s option, F.O.B. Sutton Concepts LLC’s factory, any part which, upon Sutton Concepts LLC inspection is found to have a defect in material and/or workmanship. Sutton Concepts LLC in no event shall be liable for indirect or consequential damages arising out of the use of Sutton Concepts LLC products. Components purchased by Sutton Concepts LLC from others for inclusion by Sutton Concepts LLC shall be warranted only to the extent set out above and/or to the guarantee or warranty, if any, made by the supplier of said component. No warranty is made by Sutton Concepts LLC, express or implied, that Sutton Concepts LLC products as used in a customer’s design and specifications are fit for that customer’s specific purpose.
Services performed by Sutton Concepts LLC will be conducted in a manner consistent with that level of care and skill ordinarily exercised by members of the industry currently practicing under similar conditions. As an independent contractor of Buyer, Sutton Concepts LLC will provide evaluation, advice, and guidance to Buyer, but Buyer recognizes that Sutton Concepts LLC is a technical contractor and not a professional consultant.
APART FROM THE ABOVE EXPRESS WARRANTY, THERE ARE NO WARRANTIES, EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
Sutton Concepts LLC expressly reserves the right to substitute materials in the products described in the catalogs and any supplements thereto; however, this shall not apply to special order products and/or custom products where Sutton Concepts LLC is advised in writing of specific material requirements and agrees in writing to comply with the requests for such specific materials. Any and all warranties shall be construed and enforced under the Laws of the State of California.
11. INDEMNIFICATION. Buyer shall defend, indemnify and hold Sutton Concepts LLC harmless from and against any and all claims, liabilities, loss, costs, damage or expense (including reasonable attorneys’ fees) of any kind or nature whatsoever relating to the performance by Sutton Concepts LLC hereunder, including without limitation, claims made for property damage or personal injury (including death), whether such claims are premised on contract or on tort (including, without limitation, strict liability). This indemnity provision shall not apply where such damage or injury is attributable solely to the negligence of Sutton Concepts LLC, its employees or agents.
12. FORCE MAJEURE. Sutton Concepts LLC will not be liable for any delay in the performance of its obligation under this Quotation or for any damages suffered by the Buyer by reason of such delay, when such delay is directly or indirectly caused by or in any manner arises from: fires; floods; accidents; riots; acts of God; governmental interference; embargoes; strikes; labor difficulties; shortages of labor, fuel, power, materials or supplies; transportation delays; any existing or future laws or acts of the Federal or any State government (including specifically, but not exclusively, any orders, rules or regulations issued by any official or agency or any such government) affecting the conduct of Sutton Concepts LLC’s business; or any other cause or causes (whether or not similar in nature to any of those specified above) beyond Sutton Concepts LLC’s control, including but not limited to modifications to the fabricating specifications requested by the Buyer subsequent to commencement of production by Sutton Concepts LLC
13. NO WAIVER. The failure of Sutton Concepts LLC upon knowledge of any default or violation by Buyer of any of the Terms and Conditions of this Quotation, or any sales agreement entered into hereafter, to enforce its rights or remedies shall not be construed as a waiver of such default or violation, or of any provision hereof, or of any of its rights or remedies.
14. LIMITATION ON LITIGATION/ATTORNEY FEES. Any controversy or claim of Buyer arising out of or related to any transaction with Sutton Concepts LLC must be commenced within one (1) year after the cause of action has accrued. Sutton Concepts LLC shall be entitled to reimbursement of all costs and expenses, including reasonable attorneys’ fees, from the Buyer relating to any lawsuit in which Sutton Concepts LLC prevails in any amount or on any claim.
15. ENTIRE AGREEMENT/LAW AND FORUM/SEVERABILITY. Except as otherwise agreed in writing or if another writing incorporates these terms thereby making these terms supplemental to such writing, this constitutes the entire agreement between Sutton Concepts LLC and Buyer, superseding all prior Quotations and understandings, oral or written. All such previous communications are hereby abrogated and withdrawn, and no stipulations, representations or agreements by Sutton Concepts LLC, or its officers, agents, or employees shall be binding upon Sutton Concepts LLC unless reduced to writing and attached to and incorporated by reference herein, and no local, general, or trade custom shall alter or vary the terms hereof. Any questions, disputes, controversies, or litigation between Sutton Concepts LLC and Buyer, including but not limited to disputes concerning the validity, interpretation, or effect of the Quotation, or interpretation and enforcement of the rights and obligations of the parties hereunder, shall be governed by the laws of the State of California and the exclusive venue for resolving any such questions, disputes, controversies, or litigation shall be a state or federal court located in Warrick County, California. If any provision of this Quotation is determined invalid under applicable law, such invalidity shall be limited to such provision without invalidating the remainder of the other Terms and Conditions hereof; and if any provision of this Quotation is found to be ambiguous or in conflict with any other provision of this Quotation, such ambiguity or conflict shall be resolved in the manner which provides the greatest protection and limitation of liability to Sutton Concepts LLC
16. INSURANCE. Sutton Concepts LLC will maintain Workers’ Compensation insurance coverage at such levels as are required under the laws of the State of California. Sutton Concepts LLC will purchase and maintain comprehensive general liability insurance against claims for personal injury or death or damage to property which may arise out of, or result from, Sutton Concepts LLC’s performance of the services in such amounts as Sutton Concepts LLC maintains in its ordinary course of business.
17. LIMITS OF LIABILITY. Sutton Concepts LLC will not be liable for any punitive damages or legal fees or any special, indirect, or consequential damages (including but not limited to loss of use or loss of profit) or fees which arise out of the performance of the services by Sutton Concepts LLC. Sutton Concepts LLC and Buyer agree that absolutely no action arising out of the services may be brought by either party more than one year after substantial completion of the services. The entire liability of Sutton Concepts LLC, or its officers, directors, agents, or employees, and Buyer’s exclusive remedy for performance or nonperformance of the services shall be the adjustment or correction of the services by Sutton Concepts LLC. If after repeated efforts, Sutton Concepts LLC is unable to adequately perform, Buyer shall be entitled to recover a pro-rata credit for the sums actually paid for the defective portion of the services.
18. TERMINATION OR CANCELLATION. Either party may terminate the services and all obligations arising under the proposal for the reason of the failure by the other party to comply with its obligations upon 30 days prior written notice to the other party. In the event of such termination, Buyer will pay to Sutton Concepts LLC all amounts which are due and payable to Sutton Concepts LLC for the services performed through the date of such termination. In addition, in the event the services are terminated as the result of the failure of Buyer to perform its obligations, Buyer will pay to Sutton Concepts LLC a termination charge of 20 percent of the cost of the remaining services to be performed by Sutton Concepts LLC.
