Terms and Conditions

Our Terms and Conditions of Sales and Design Services

The following terms and conditions of sale govern all sales of goods or services (collectively, “Goods”) from DesignScapes Holdings, Inc. dba Kitchenscapes, Inc. (“Seller”) to buyer (“Client”).

 

Governing/Controlling Terms.

The terms and conditions contained in this document shall govern this transaction and, except as expressly provided herein, shall supersede any documents or other communications submitted to Client by Seller. All other terms and conditions contained in any prior communication between Client and Seller, oral or written, including, without limitation, Proposals submitted to the Client, other than the identity of and quantity of the item(s) being purchased, are null and void and are hereby rejected and shall not be binding upon Seller. Client shall have assented to all terms and conditions contained herein if all or any portion of the Goods described herein are shipped or an invoice is presented in connection with said Goods.

 

Prices. 

Except for written project Proposals that specifically allow price protection for a certain period of time, all prices are subject to change by Seller without notice. If prices change, Client agrees to accept the new prices.

 

Goods Provided.

Seller limits the Goods provided to the Client to those specifically detailed on the written Proposal provided by the Seller to the Client. Any other Goods contained in any prior or subsequent communications between Client and Seller, oral or written, including, without limitation, delivery services, Goods installation, project management, general contracting, electrical work, plumbing work, carpentry, or any other Goods other than those specifically listed on the written proposal are null and void and are hereby rejected and shall not be binding on the Seller.

 

Installation Services.

CUSTOMER ACKNOWLEDGES THAT SELLER DOES NOT MANAGE OR PERFORM INSTALLATION SERVICES FOR GOODS SOLD. Any charges appearing on written proposals, invoices, or other documentation provided by the Seller are for installation costs charged by a wholly independent contractor, licensed and insured in the local jurisdiction. Seller makes no, and hereby disclaims, any and all warranties and assumes no liability for work performed by an independent contractor performing installation services. Claims for damages, losses, or any other defects or loss of use resulting from installation of Goods must be made by Client directly to the independent contractor and Seller shall have no liability for such claims. Client must select and employ their own independent contractor for installation services. If Client chooses to select their own independent contractor, any charges will be removed by the Seller from the Client’s account. Client hereby acknowledges and agrees to hold harmless the Seller for any and all issues related to installation services.

 

Payment Terms. 

All accounts are due and payable based upon the terms stated on the applicable invoice of Seller and the remittance address reflected on those invoices. As collateral security for the payment of the purchase price of the Goods, Client hereby grants to Seller a security interest in and to all of the right, title and interest of Client in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code. Client agrees to assist Seller in taking any action Seller deems necessary or appropriate to perfect and protect Seller’s security interest, including the filing of any financing statements, continuation statements and other documents under the Uniform Commercial Code (or other similar laws) in effect in any jurisdiction with respect to the security interest created hereby.

 

Late Payment. 

If Client fails to make any payment to Seller within 10 days of the invoice due date, Client’s account and/or job accounts with Seller shall become immediately due and payable without notice or demand. Client acknowledges and agrees that discounts extended on any balance that has not been paid by the due date are null and void.  Client acknowledges and agrees that it will be charged three percent (3%) per month as a service charge plus up to the maximum interest permitted by law on any unpaid balance that has not been paid by the date due and shall be responsible for any and all costs of collection and enforcement of this provision, including attorneys’ fees and court costs. Client agrees to promptly pay said service charge and interest. Any portion of a month shall be deemed a full month for the purpose of calculating any service charge and interest. Waiver of any service charge or interest for any given month by Seller shall not be deemed a waiver of any future service charges or interest.

 

Taxes. 

Client shall pay, in addition to the prices quoted, all taxes, including, without limitation, sales, use and excise, imposed by any present or future law on the sale or use of the Goods covered thereby, unless Client provides Seller with an exemption certificate acceptable to the applicable taxing authorities. Any taxes which Seller may be required to pay or collect under any existing or future law with respect to the sale, purchase, delivery, storage, processing, use or consumption of any of the Goods sold hereunder shall be for the account of Client, who shall promptly pay the amount thereof to Seller upon demand.

 

Claims.

No claim for damages, defects, shortages or otherwise shall be valid unless received in writing by Seller within ten (10) days of delivery of Goods to Client. Following such ten (10) day period, Client shall be deemed to have irrevocably accepted the Goods if not accepted by Client prior thereto. If the Goods are damaged or defective and the manufacturer acknowledges responsibility under its warranty or otherwise, Seller may, but shall not be required to (i) replace the damaged or defective Goods from inventory, if available, or (ii) allow Client a credit for the amount of the purchase price of the Goods. Under no circumstances and in no event shall Seller be liable for personal injury, death or property damage, or any other loss, damage, labor, cost of replacement or repair, or special, exemplary, consequential, incidental, indirect, punitive or liquidated damages, losses, or expenses (whether or not based upon negligence), including lost profits, lost income, lost revenues, business interruption or lost business, even if Seller has been advised of the possibility of such damages. In no event shall Seller’s responsibility to Client exceed the purchase price of the Goods purchased.

 

Special Orders. 

Orders for Goods which Seller does not regularly stock may not be cancelled or returned (unless the manufacturer approves the return) for any reason after Seller has placed the order with the manufacturer. Special packing or handling requests by Client shall be at Client’s expense.

 

Returned Goods. 

No Goods shall be returned without Seller’s prior written permission and Client’s proof of purchase. Returned Goods must be unused and in their original packaging. All returns are subject to freight, handling, and restocking charges. Special order and/or non/stock item returns are subject to manufacturers’ approval and credit for such returns is contingent upon that approval. Client’s sole and exclusive remedy for Goods alleged to be defective shall be limited to the manufacturer’s inspection and warranty, if any.

 

Credits; Set-off.

Client agrees that Seller will apply any credits issued to Client against Client’s outstanding invoices. If Client has no outstanding invoices, Seller will issue a refund upon Client’s written request. Client shall not be permitted to set off any amounts or credits due Client against any amount due Seller in connection with this transaction.

 

Delivery; Back Orders. 

Seller shall not be liable or responsible for any loss or damage due to any delays in delivery, or failure to deliver the Goods due to any circumstances beyond Seller’s control, including, but not limited to fire, flood, earthquake or other casualty, accidents, transportation delays, labor disputes, civil disorders, governmental orders or actions, acts of war or terrorism, or inability to secure Goods from Seller’s usual sources of supply. In no event shall Seller be liable for any special, exemplary, consequential, incidental, indirect, punitive or liquidated damages, losses, or expenses (whether or not based upon negligence), including lost profits, lost income, lost revenues, business interruption or lost business, even if Seller has been advised of the possibility of such damages. In no event shall Seller’s liability to Client and/or any third party exceed the price paid by Client or such party for the specific Goods or portion of the Goods giving rise to the claim or cause of action. Back orders will be shipped as received unless Client and Seller agree to different terms.

 

Storage; Storage Fees. 

Seller shall not be liable or responsible for any loss or damage to Goods incurred while being stored prior to installation, either at a site managed by the Seller or at a site managed by the Client. Goods stored by the Seller on behalf of the Client are subject to storage fees after fourteen (14) days from the date of delivery to the Seller’s storage facility.  The Client acknowledges and agrees to pay the Seller $75.00 for Goods stored beyond the fourteen (14) day period.  The Client further acknowledges and agrees to pay the Seller $150.00 per month after Goods have been stored for more than twenty-eight (28) days.  Storage fees are not pro-rated.  For storage fees, a month is defined as twenty-eight (28) consecutive days.

 

Risk of Loss. 

Unless otherwise agreed by the parties in writing, all Goods are shipped F.O.B. point of shipment. Risk of loss shall transfer to Client upon tender of Goods to Client, carrier, or delivery service. On shipments made directly to Client from the manufacturer, the sale is complete and Seller’s responsibility to Client ends upon delivery to the common carrier. Claims for Goods damaged or lost in transit must be made by Client directly to the carrier and Seller shall have no liability for such claims. Client shall assume all risk and liability for all loss, damage or injury to any person or property resulting from the installation and/or use of the Goods.

 

Warranty Disclaimer. 

Seller warrants that it has title to the Goods sold. EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, ALL GOODS AND/OR SERVICES PROVIDED BY SELLER AND ITS EMPLOYEES AND AGENTS ARE PROVIDED “AS IS,” “WHERE IS,” AND “WITH ALL FAULTS.” SELLER MAKES NO, AND HEREBY DISCLAIMS, WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, SUITABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE WITH RESPECT TO THE GOODS REFERRED TO HEREIN. CUSTOMER’S SOLE AND EXCLUSIVE WARRANTY, IF ANY, IS THAT PROVIDED BY THE APPLICABLE THIRD PARTY MANUFACTURER, THE TERMS OF WHICH WILL BE FURNISHED UPON REQUEST.

 

Indemnification. 

Client shall defend, indemnify and hold harmless Seller and its owners, officers, directors, employees, agents and advisors from and against any claim, loss, damage, suit, cause of action, liability, judgment or expense (including, without limitation, attorneys’ fees and costs), resulting from, arising out of or in connection with any injury, disease or death of persons or damage to or loss of any property, or violation of any applicable laws or regulations resulting from or in connection with the sale, transport, installation or use of the Goods, whether based upon negligence, breach of warranty, strict liability in tort, contract, or any other theory of law. This paragraph shall survive the termination of this transaction indefinitely.

 

Dispute Resolution/Venue. 

Any dispute arising out of this transaction shall be resolved by litigation or binding arbitration (“Dispute Resolution”) at Seller’s sole option. Such Dispute Resolution shall be conducted at a location selected by Seller and in the event of binding arbitration, by an arbitration service selected by Seller. A single arbitrator shall preside over the arbitration, and the decision of the arbitrator shall be final and binding upon the parties. If the parties cannot agree upon a single arbitrator, the procedure of the arbitration service selected by Seller shall be used to select an arbitrator. All actions arising out of or related to this transaction or the Goods sold hereunder, regardless of form or theory of liability, must be brought against Seller within the applicable statutory period, but in no event more than one (1) year after the date of invoice.

 

Costs of Collection. 

If Seller retains or employs attorneys or other agencies in order to secure payment of any sums due from Client, or otherwise enforce the terms of this document, including, but not limited to, the filing of foreclosure actions on liens filed due to Client’s failure to make payment, Client agrees to pay attorney and/or collection fees, costs, and any and all other related expenses in addition to all sums due.

 

Authority; Personal Liability. 

The person(s) executing this document on behalf of Client hereby represents he/she has authority to execute this document on behalf of Client and acknowledges if no such authority exists that he/she by executing this document becomes personally liable under its terms.

 

Modification. 

The terms and conditions contained herein may not be amended, modified, supplemented, superseded or otherwise altered in any way except by a writing signed by an authorized representative of both Client and Seller.

 

Non-waiver. 

Seller’s failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of any of Seller’s rights or remedies hereunder, nor of its right to insist upon the strict performance of the same or any other term herein in the future. No waiver of any term or condition hereunder shall be valid unless in writing and signed by an authorized representative of Seller.

 

Severability. 

If any term or provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, regulations, or ordinances of any federal, state, or other government to which this transaction is subject, such term or provision shall be fully severable and the remaining terms and provisions herein shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable term or provision.

 

Force Majeure.

Seller shall be excused for the period of any delay in the performance of any obligations when prevented from so doing by causes beyond its control, including without limitation, acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster or casualty), civil commotion, government sanction, blockage, embargo, labor disputes, strike, lockout, inability to obtain any material or services, war (declared or undeclared) or acts of terrorism.

 

Entire Agreement. 

This document constitutes the entire, complete, and exclusive agreement between Client and Seller with respect to the subject matter hereof and contains all the agreements and conditions of sale. No course of dealing or usage of the trade shall be applicable unless expressly incorporated herein.