This Agreement is between you as the Buyer and The Sapling Company, Inc. (“Sapling”) and it sets forth the terms and conditions under which you agree to purchase the products/services set forth in Sapling’s Purchase Order.
THIS IS A CONTRACT. PLEASE READ THESE TERMS CAREFULLY.
1. Binding Contract. Any Purchase Order or invoice from Sapling relating to the purchase and sale of goods (herein referred to as the “Goods”) will become a binding contract on the terms and subject to the conditions set forth herein and therein when Buyer accepts any shipment of the Goods. The Purchase Order/invoice will not be an acceptance or confirmation of any other terms. The Purchase Order/invoice will be subject to the terms and conditions set forth herein and no others unless there is a signed overriding agreement between the parties. Any additional or different terms or conditions proposed by the Buyer are hereby rejected.
2. Complete Agreement. The terms and conditions set forth herein constitute the complete agreement of the parties, are a complete and exclusive statement of the terms of that agreement and supersede any previous or contemporaneous communications, representations or agreement, whether oral or written, with respect to the Goods. The terms and conditions of the invoice cannot be changed or amended except by a written agreement signed by Sapling. This Agreement is not for the benefit of any third party except our parents, affiliates, subsidiaries, agents, related parties, subcontractors, assignees and successors in interest. You agree that a copy of this Agreement and proof of the manner of execution hereof shall be deemed to be an original for all purposes. You agree that we may save and store all agreements and other documents executed by you in an electronic media and all such agreements and other documents shall be deemed to be, and may be used by us as, originals and shall be given the same force and effect as paper-form originals.
3. Price Revision. Unless otherwise expressly stated by Sapling, prices are subject to revision without notice. Goods will be supplied and invoiced at the prices in effect at the time of shipment. If any price revision is not accepted, Sapling, without liability and at its opinion, may either continue to supply Buyer at the contract price and terms then in effect or terminate this contract, either in its entirety or with respect to future shipments of the Goods affected, as of the effective date of the price revision or any later date by so notifying Buyer in writing. All prices are in US Dollars.
4. Credit. Whenever Sapling, in its sole judgment, has any doubt as to Buyer’s creditworthiness or financial responsibility, Sapling may require payment in cash in advance of shipment.
5. Payment Terms. Payment terms are as agreed between Sapling and Buyer in writing for each order of Goods.
6. Separate Contracts. Each shipment to Buyer shall constitute a separate and independent contract governed by these Online Terms and Conditions, and shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Sapling shall have the right at all times, among other remedies, either to terminate any contract or to suspend further deliveries upon failure of Buyer to pay for any one shipment when it becomes due or when Buyer is in default of any other sales agreement between Buyer and Sapling. Delay or default in any delivery or shipment shall not relieve Buyer of its obligations to accept remaining deliveries. Upon such termination or suspension by Sapling, all Buyers’ outstanding obligations to Sapling shall be immediately due and payable.
7. Quotes are provided based on our system recommendations. It is the customer’s responsibility to confirm that the system quoted is meeting the project requirements.
8. Shipping. Unless otherwise specified by Sapling, all Goods are sold “EXW The Sapling Company, Inc.’s plant.” Unless otherwise specified by Buyer, means of shipment shall be at the sole discretion of Sapling. Any quoted delivery date is only an estimate.
EXW (Ex Works) –means that Sapling makes the order available for Buyer at Sapling for delivery. Most of our international dealers have their own freight forwarders that will pick the order up and ship it to the Buyer on their account.
Based on the Buyer’s needs, Sapling can also contact a freight company to handle shipments from the USA to overseas.
Sapling typically contracts the freight company to ship door to door excluding any destination charges. This means that the Buyer is responsible for any destination charges, custom release and custom duty if and as applicable but not for the ground transportation from the port to the Buyer’s location as this service is already included.
In a few countries when a door to door service is not available the freight company may be able to offer a door to port service. In this case the Buyer is responsible for any destination charges, custom release, custom duty if and as applicable and ground transportation from the port to the Buyer’s location.
Original Documents are always provided to the freight forwarder to go with the shipment. If Buyer requires otherwise, specific instructions in writing should be provided to us when placing the order.
Lead Time for shipping is 14 Business Days from Formal Order Confirmation by Sapling in writing (by e-mail) for all standard products orders. Orders will not be released to production without payment or as per credit terms. Custom Orders will require additional lead time depending on the individual project requirement.
Formal order confirmation by Sapling with an estimated delivery date will be sent only after Sapling has received the funds wired to its bank account, or a proof of any other payment terms are available for its satisfaction. Orders will not be released to production without payment verification. Orders will only be released to production when Sapling has a verified shipping method. If shipping via the Buyer’s freight forwarder company, Sapling must have company name and contact information. If using Sapling’s shipping quote, this must be confirmed before release. If Buyer is using its own freight forwarder, Sapling needs to have full contact information.
9. Inspection. Buyer shall examine each shipment upon its arrival at Buyer’s facilities and shall promptly notify Sapling in writing of any shortage, loss or damage apparent under reasonable examination. Failure by Buyer to forward such notification to Sapling within 5 days after arrival shall constitute an absolute and unconditional waiver of all claims for any such shortage, loss or damage.
10. Limited Warranty and Disclaimer. Sapling warrants only that at the time of delivery and for a period of 24 calendar months after delivery or the period stated in this invoice, if different, the Goods shall be free of defects in workmanship and materials, PROVIDED that this warranty shall not apply:
(i) to damage caused by Buyer’s or any third party’s act, default or misuse of the Goods or by failure to follow any instructions supplied with the Goods;
(ii) to damage caused by acts of God, such as, but not limited to, lightning, flooding, fire, earthquake;
(iii) to damage caused by war or civil unrest;
(iv) where the Goods have been used in connection with or incorporated into equipment or materials the specification of which has not been approved in writing by The Sapling Company, Inc.; or
(v) to Goods which are altered, modified or repaired in any place other than a Sapling factory or by persons not expressly authorized or approved in writing by Sapling.
THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO GOODS DELIVERED UNDER THIS CONTRACT, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The foregoing warranty runs only to Buyer. There are no oral or written promises, representations or warranties collateral to or affecting this contract. Representatives of Sapling may have made oral statements about products described in this contract. Such statements do not constitute warranties, shall not be relied on by Buyer and are not part of the contract.
Buyer shall pay for all shipping charges to return the Goods to Sapling under the foregoing limited warranty. Sapling shall pay for any shipping to send new or repaired Goods to Buyer under the foregoing warranty.
11. Assumption of Risk. Buyer assumes all risk and liability whatsoever for any and all injuries (including death), losses or damage to persons or property or otherwise resulting from the possession, handling, storage, transportation, use or other disposition of Goods sold, whether used alone or in connection with other goods or equipment.
12. Limitations of Remedies. If the Goods do not conform to the warranty set forth herein, Sapling’s sole liability and obligation shall be to replace the specific nonconforming Good or refund the purchase price actually paid for such nonconforming Goods, as Sapling may elect. If replacement of the Good is elected, shipment of the Good to Sapling’s plant will be the responsibility of the Buyer. Sapling’s liability under this warranty or otherwise with respect to the Goods or their use (including liability for negligence or otherwise) is limited solely and exclusively to the remedies provided above and no other right or remedy will be available to Buyer or to any other person. Sapling will in no event be liable to any person for any special, incidental or consequential damages to person or property except to the extent mandated by applicable state law.
13. When placing orders for custom painted or printed items (such as dials, cases, hands and other items), colors may differ from one order to another due to the nature of the printing process.
14. Limitation on Actions; Waiver of Jury Trial; Arbitration
YOU AND WE AGREE TO ARBITRATE ANY AND ALL DISPUTES AND CLAIMS INCLUDING, BUT NOT LIMITED TO, CLAIMS BASED ON OR ARISING FROM ANY ALLEGED TORT, OR ARISING OUT OF OR RELATING TO AGREEMENT EXCEPT FOR THE COLLECTION OF MONIES OWED BY YOU TO US UNDER THIS AGREEMENT.
Arbitration of any dispute or claim EXCEPT for collection of past due accounts shall be conducted in accordance with the rules of the American Arbitration Association (“AAA”). The AAA rules and fee information are available from the AAA upon request. YOU ARE RESPONSIBLE FOR THE PAYMENT OF ALL OF YOUR COSTS AND EXPENSES IN CONNECTION WITH THE ARBITRATION, INCLUDING THE FILING FEE AND YOUR COST OF TRAVELING TO THE ARBITRATION SITE. You and we acknowledge this Agreement evidences a transaction in interstate commerce and the Federal Arbitration Act shall govern interpretation and enforcement of, and proceeding pursuant to, this or a prior agreement. UNLESS YOU AND WE AGREE OTHERWISE IN WRITING, THE LOCATION OF THE ARBITRATION SHALL BE IN PHILADELPHIA COUNTY, PENNSYLVANIA.
Except where prohibited by law, you and we agree that no arbitrator has authority to (1) award relief in excess of what this Agreement provides, (2) award punitive damages or any other damages not measured by prevailing party’s actual damages, or (3) order consolidation or class arbitration. The Arbitrator must give effect to the limitations on our liability as set forth in this Agreement. You agree that you and we are each waiving our respective rights of a trial by jury and you acknowledge that arbitration is final and binding and subject only to very limited review by a court. This arbitration provision does not apply to the collection of past due amounts owed by you to us. Both parties hereby agree that no suit or action that relates in any way to this Agreement (whether based upon contract, negligence or otherwise) shall be brought against the other more than one (1) year after the accrual of the cause of action. In addition, if arbitration is not available, both parties hereby waive any rights to a jury trial in any judicial action by either party which relates in any way to this Agreement, whether based upon contract, negligence or otherwise.
15. Indemnification. Buyer shall release, defend, indemnify and hold Sapling and its assignees, agents, employees, subsidiaries, affiliates and parent companies harmless from and against any and all claims or liability relating to design, installation, or operation of the Goods and the performance of any service covered by this Agreement, including payment of all damages, expenses, costs and attorney’s fees, whether such claims or liability be based upon negligence, warranty or strict product liability on our part, or on the part of our assignees, agents, employees, subsidiaries, affiliates or parent companies. You shall indemnify, defend and hold us harmless, and our assignees, agents, employees, subsidiaries, affiliates and parent companies from and against all claims, lawsuits and losses that claim loss sustained by parties or entities other than parties to this Agreement. This provision shall apply to all claims, lawsuits or damages caused by our negligent performance whether active or passive and to all claims based on defects in design, installation, maintenance, monitoring, operation or non-operation of the Goods, whether those claims be based upon negligence, gross negligence, warranty, or strict products liability on our part, or on the part of our assignees, agents, employees, subsidiaries, affiliates and parent companies.
16. Returns. Unless otherwise specified by Sapling, all products purchased are subject to the following return policy:
Due to the customization of products to meet specific customer requirements and specifications, products which are non-returnable and/or non-refundable are clearly indicated within the current price list catalog. Under no circumstances will the return of these referenced items be accepted and the Buyer will bear full responsibility for the payment of the related obligation.
All products, other than those described above and indicated within the current price list, will be returnable within 90 days of shipment and will be subject to a restocking charge equal to 20% of the sales price invoiced. In addition, return quantities will be limited to a specific number of units depending upon the product and size of order, which is also indicated within the current price list.
17. Notices. Notices are considered delivered when we send them by email or fax to any email address or fax number you’ve provided to us, or three (3) days after mailing to the most current billing address we have on file for you.
18. Choice of Law/Venue/Jurisdiction. This Agreement will be governed by the laws of the Commonwealth of Pennsylvania, without reference to conflicts of laws rules, and that any action arising out of this Agreement must be brought in the federal or state courts located in and for Philadelphia County, Pennsylvania.
19. Severability/Waiver. If a court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, that provision will be null and void to the extent determined by the court; however, each remaining provision in the entire Agreement will continue to be valid and enforceable. A waiver of any part of this Agreement in one instance isn’t a waiver of any other part or any other instance.