Terms and Conditions

INTERSPACE LIVING NY LLC

SALE OF GOODS

TERMS AND CONDITIONS

 

Welcome to Interspace Living NY LLC! Interspace Living NY LLC and/or its affiliates (“Seller”) Seller provides the products and services (“ISL Services”) to you (“Buyer”) subject to the following conditions.

 

ARTICLE 1.  GENERAL PROVISIONS

  • Governing Law. The parties acknowledge that the transaction that is the subject matter of these Terms bears a reasonable relation to the State of New York and agree that the law of New York will govern their rights and duties.
  • Integrated Agreement. The terms of these Terms, together with the Quote, Sales Order and/or any change orders mutually agreed upon in writing (“Change Orders”), shall constitute the final terms agreed to by the parties.
  • Buyer agrees to purchase certain goods from Seller as more particularly set forth herein.

ARTICLE 2.  GOODS

    • Nature of Goods. Seller hereby sells to Buyer, and Buyer hereby purchases, the goods (sometimes referred to as “Goods”), as described on the Quote, Sales Order and/or any Change Orders.
    • Quantity of Goods The quantity of goods to be delivered by Seller and received by Buyer under these Terms is as shown on the Quote, Sales Order and/or any Change Orders.

ARTICLE 3.  WARRANTIES

    • Express Warranties. There are no express warranties relating to these Terms, except as may be expressly stated elsewhere herein, and as may be contained in attachments hereto, to the extent such attachments are expressly incorporated into these Terms.
    • Disclaimers of Warranties. Any description of the goods contained in these Terms is for the sole purpose of identifying the goods, and no description of the goods has been made part of the basis of the bargain or has created an express warranty that the goods would conform to any description made by Seller.
    • Disclaimer of Implied Warranty of Merchantability. Seller disclaims any warranty of merchantability with respect to the goods being sold under these Terms, and Buyer agrees to accept the goods without any warranty of merchantability.
    • Disclaimer of Implied Warranty of Fitness. Seller disclaims any warranty of fitness for any particular purposes whatsoever with respect to the goods being sold under these Terms, and Buyer agrees to accept the goods without any warranty of fitness.

ARTICLE 4.  PRICE

    • Total Price. The price (“Total Contract” or “Purchase Price”) for the Goods is set forth on the Quote, Sales Order and/or any Change Orders. Unless otherwise specified therein, the Purchase Price excludes: (i) sales tax, which will be due and payable together with the Purchase Price in the proportions and installments set forth in Section 6.01 herein (any estimated taxes provided to Buyer are subject to change at any time; and  sales tax and order processing fees will be reconciled on the final invoice); (ii) additional costs and expenses incurred by Seller, without limitation, tariff surcharges, other forms of taxes or government charges not applicable or in existence at the time the Quote is provided by Seller to Buyer, increased freight costs above the Freight Cap set forth in Section 4.02 herein (including, inland freight beyond the delivery point designated on the Quote, Sales Order and/or any Change Orders, or any additional in-land freight costs due to pre-pulls, detention, fuel or storage fees); and (iv) Seller’s out-of-pocket expenses and fees relating to Buyer’s failure to accept the Goods on the Delivery Date or unloading beyond 1.5 man hours as set forth herein (the costs set forth in this Section 4.01, collectively, “Additional Costs”).  All Additional Costs shall be borne by Buyer and shall be payable to Seller in accordance with the provisions set forth in these Terms, and in any event, no later than the last payment due from Buyer to Seller pursuant to Section 6.01. 
    • Freight. Buyer agrees and acknowledges that freight estimates may be provided by Seller separate from prices of the goods and are subject to change at any time based on delivery location, fluctuations in overseas freight prices, volatility in fuel prices, small quantities that leave significant empty space on containers and the like.  Buyer further acknowledges that freight charges, whether included in the Purchase Price or as estimated freight, are based on a stable freight environment and are subject to fluctuation; as such, such freight charges are subject to change upon notice from Seller to Buyer.  Further, freight estimates will include the cost of no more than 1.5 hours of unloading, and any additional time spent unloading shall be subject to additional charges. 
    • Installation of the Goods is excluded from the Purchase Price. Any installation arrangement between the parties shall be set forth in a separate Installation Addendum, and in such event, shall be deemed incorporated herein and made a part of hereof.

ARTICLE 5.  PRODUCTION; SHIPMENT AND DELIVERY

    • Place and Time for Shipment or Delivery. The place for delivery of goods being sold under these Terms is as set forth on Quote, Sales Order and/or any Change Order (“Delivery Location”). The approximate date and time for delivery of the goods being sold under these Terms will be set forth on the Quote, Sales Order and/or any Change Orders approved by Seller (“Delivery Date”); provided however, that delivery by Seller on the Delivery Date shall be subject to (i) Buyer’s timely payment of the First Installment (defined below) and (ii) if applicable, Buyer’s timely approval of materials, colors, drawings and any other component that requires approval, prior to the lead times provided thereon.  Without limitation of the foregoing, Seller may update the Delivery Date from time to time based upon information provided by Buyer (i.e. Delivery Questionnaire), or otherwise by notice (including, without limitation, the provision of an updated Delivery Schedule) to Buyer.
    • Notification of Delivery. When the goods being sold under these Terms are ready to be shipped to the Delivery Location, Seller or its representatives will send notification to Buyer as to that fact and inform Buyer as to the dates and times at which Buyer may take delivery. Buyer shall keep all information updated and shall notify Seller of any changes upon receipt of the Delivery Schedule.
    • Right to Inspection. Buyer has the right to inspect all goods tendered for delivery before delivery is considered complete under these Terms.  This inspection may take place only at the place for delivery.  If Buyer properly rejects any such goods, they will be returned to Seller, at the expense of Seller.  Buyer will not be charged for goods properly rejected as being nonconforming under the requirements of these Terms.  Any goods not rejected by Buyer within seven (7) days after delivery shall be deemed to be acceptable and conforming.
    • Rejection Procedure. If Buyer wishes to reject any of the goods sold pursuant to these Terms, Buyer must provide Seller with dated proof that the goods are nonconforming per the requirements of these Terms (i.e. photographs and the like), and must notify Seller of the rejection in writing within seven (7) days after delivery of the rejected goods. Buyer agrees not to resell or dispose of the rejected goods in any manner, and will hold the goods without charge to Seller, until the time that Seller may reasonably arrange for transportation.  Should Buyer sell the goods, the sale shall be deemed an unequivocal acceptance by Buyer of the goods.
    • Buyer acknowledges that Seller is relying on the information provided by Buyer and other documentation provided by Buyer to Seller, such that any deviation from the information provided by Buyer may result in Additional Costs to be payable by Buyer. Without limitation of the foregoing, Buyer agrees to provide, at Buyer’s expense, a loading dock (or sufficient space to unload the container), and unless installation is contracted for as provided herein, a sufficient unloading crew at the Delivery Location on the Delivery Date.  Buyer shall also provide, at its expense, all parking permits reasonably necessary to facilitate the delivery of the Goods. In the event that Buyer instructs Seller in a timely manner to postpone, beyond the Delivery Date, the delivery of the Goods to Delivery Location, Seller shall warehouse, at Buyer’s expense, the Goods.  Buyer agrees to reimburse Seller for any additional actual expenses incurred by Seller for overtime fees, cancellation fees, re-scheduling fees, installation fees, delivery fees, warehousing fees, storage fees, additional insurance premiums, and any other actual fees or charges incurred by Seller due to delivering or warehousing Goods after the later of (i) the Delivery Date and (ii) the delivery schedule provided by Seller and agreed to by Buyer prior to delivery, if the delay is requested or caused by Buyer.  For the purposes of this Section 5.05, to the extent Buyer interrupts or splits Seller’s planned schedule of delivery of Goods, such interruption or splitting of the delivery shall constitute a delay for which Buyer shall compensate Seller as provided herein.  Buyer agrees that all charges due pursuant to this Section must be paid prior to Seller’s delivery of Goods to Delivery Location. 

ARTICLE 6.  PROVISIONS FOR TIME OF PAYMENT

    • Payment Schedule. Payment for the goods to be sold under these Terms shall be as set forth on the Quote, Sales Order and/or any Change Order.  Unless otherwise specified on the Quote, Buyer shall pay Seller a non-refundable deposit in the amount of 50% of the Purchase Price (the “First Installment”) upon Seller’s approval of the Quote, Sales Order and/or any Change Orders, and the balance upon delivery of the Goods. All payments made from Buyer to Seller hereunder shall be non-refundable.
    • Manner of Payment. Buyer shall pay for the goods by wire transfer, or other immediately available funds.
    • Seller shall retain title to all of the goods subject hereof until full payment for all goods and services (including additional costs set forth in any Change Orders or otherwise) is made by Buyer to Seller.
    • Late Payments. If Buyer is late in making any payment due to Seller from Buyer for ten (10) or more days, then Buyer shall be subject to late charge, up to 5% of the amount overdue. In addition, in the event the payment is past due for greater than twenty-one (21) days then Buyer shall also pay an  amount equal to the interest on such payment from the date upon which it was due until paid, which interest shall be computed at the rate equal to the greater of (i) two (2%) percent per month or (ii) five (5%) percent per annum over the then announced prime rate of JP Morgan/Chase Bank, but such amount shall in no event be in excess of the maximum lawful rate of interest.

ARTICLE 7.  REMEDIES AND LIABILITIES

    • Force Majeure. Seller shall not be liable for any delay or failure to deliver any or all of the goods if the delay or failure is caused by labor disputes, pandemic, strikes, war, accident, or fire damage to, or destruction in whole or in part of, merchandise or manufacturing plant, lack of or inability to obtain raw materials, labor, fuel, or supplies, or storm, fire, flood, or any natural occurrence, macroeconomic disruptions, or other causes beyond Seller’s control.  Seller shall not be liable to Buyer for any costs incurred by Buyer under this Section.
    • Limitation on Damages. In no event shall Seller’s liability to Buyer or Buyer's liability to Seller for all claims arising out of or related to these Terms exceed the amount of the Purchase Price. Neither party shall be liable for any incidental, consequential, special or punitive damages of any kind or nature, including, without limitation, the breach of these Terms, whether such liability is asserted on the basis of Terms, tort (including negligence or strict liability) or otherwise, even if any other party has warned or been warned of the possibility of any such loss or damage.
    • Security Interest.
      • Buyer expressly agrees that Seller shall retain a security interest in and to all Goods sold to Buyer until the Purchase Price, the Additional Costs and all other amounts due hereunder are paid in full. Buyer hereby grants to Seller a security interest in the Goods, together with all parts, accessories, repairs, improvements and the proceeds thereof (the “Collateral”) as security for the prompt payment in full for all amounts due hereunder (“Security Interest”). Buyer consents to the filing of any and all financing statements and security agreements, or other lien instruments, deemed reasonably necessary by Seller to perfect the security interest granted. Seller expressly agrees to immediately release said security interest upon payment by Buyer of the sums due hereunder. Seller agrees to cooperate fully with Buyer and execute any requested documentation from Buyer in order to release said Seller’s security interest and liens in the Goods, upon payment in full of the amounts due hereunder.
      • Buyer expressly represents: (i) the Security Interest secures any and all debt of Buyer to Seller, whenever incurred, and will continue in effect or are until discharged in writing by Seller; (ii) Buyer owns the Collateral; (iii) Buyer will keep the Collateral in good condition; (iv) Seller may examine and inspect the Collateral at any reasonable time; (v) Buyer will not sell or transfer the Collateral without first obtaining written consent of the Seller; and (vi) Buyer will keep the Collateral insured against risk and casualty in an amount equal to its value.
      • Seller has the right to prepare and file a UCC-1 Financing Statement and sign same on Buyer’s behalf if necessary to provide public notices of these Terms and Security Interest.
      • Buyer agrees that it will be in default of these Terms and the Security Interest herein granted if Buyer is in default in any note, credit agreement or guaranty in favor of Seller, Uniform Commercial Code, and any statutory provisions concerning real property security. Seller may require Buyer to make the Collateral available at a reasonably convenient place and time and may take possession of the Collateral and sell it as provided by law. Buyer agrees that any and all costs incurred by Seller in enforcing these Terms, including reasonable attorney’s fees, shall be treated as an advance and shall constitute additional indebtedness secured by these Terms.

ARTICLE 8.  MISCELLANEOUS PROVISIONS

    • The following miscellaneous provisions shall apply to the performance, construction and interpretation of these Terms.
      • Buyer agrees that for the duration of the term of these Terms and for one (1) year thereafter, it shall not attempt in any manner to solicit or accept from any party introduced to it by or on behalf of Seller, or which it came into contact with as a result of these Terms, business of the kind or competitive with Seller or its business or to persuade such party to cease to do business or to reduce the amount of business that such party is reasonably expected to do with Seller.
      • These Terms contains the sole, only and entire agreement of the parties hereto and supersedes any prior understandings or written or oral agreements between the parties respecting the subject matter hereof. No representations, warranties or promises not expressly contained herein shall be binding upon the parties.
      • In the event that any one or more of the provisions contained in these Terms shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and these Terms shall be construed as if such invalid, illegal, or unenforceable provision had not been contained herein.
      • These Terms shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns where permitted by these Terms.
      • These Terms may be amended or modified only by an instrument in writing executed by all parties hereto. Neither these Terms, nor the responsibilities, obligations, or benefits hereunder, shall be assigned by either party without the prior written consent of the other party.
      • Buyer affirms that the entity specified as “Buyer” on the Quote, Sales Order and/or any Change Order is the entity to which such Quote, Sales Order, any Change Order and these Terms are subject and that it possesses all requisite power and authority to carry out the transactions contemplated hereby; and this transaction is being entered into by a legal representative of Buyer.
      • These Terms has been drawn and prepared as the result of the bilateral negotiations between the parties hereto, and these Terms shall, in the event of any dispute over its meaning, application, interpretation or construction, be construed reasonably, such that no ambiguities shall be resolved presumptively against any party as a matter of law.
      • All obligations of the parties created hereunder are performable in whole or in part in New York, New York, where venue shall lie for any action brought hereunder or brought between the parties hereto.
      • Any waiver of any breach hereof or default hereunder shall not constitute a waiver of any subsequent breach or default of the same or any other provision contained herein.
      • Time is of the essence of these Terms.
      • Buyer represents and warrant that it has all requisite power and authority to carry out the transactions contemplated hereby and no approvals or consents of any other persons or entities are necessary in connection with the execution or performance of this transaction.
      • The covenants contained in these Terms which, by their terms, require or contemplate their performance after the expiration or termination of these Terms shall be enforceable notwithstanding the expiration or termination of these Terms.
      • The headings or captions of the numbered paragraphs are for convenience only and shall not limit or enlarge the scope or meaning of the various and several paragraphs hereof.
      • Words of any gender used in these Terms shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, unless the context otherwise requires.
      • For purposes of these Terms, (i) those words, names, or terms which are specifically defined herein shall have the meaning specifically ascribed to them; (ii); the words hereof, herein, hereunder, and words of similar import, when used in these Terms, shall refer to these Terms as a whole, and not to any particular provision of these Terms; (iii) all references to designated Articles, Sections, and to other subdivisions are to the designated Articles, Sections, and other subdivisions of these Terms as originally executed; (iv) all references to Dollars or $ shall be construed as being United States dollars; (v) the term including is not limiting and means including without limitation; and, (vi) all references to all statutes, statutory provisions, regulations, or similar administrative provisions shall be construed as a reference to such statute, statutory provision, regulation, or similar administrative provision as in force at the date of these Terms and as may be subsequently amended.
      • All notices shall be in writing and shall be delivered to the address for Seller set forth below by facsimile or electronic mail with an additional copy delivered personally, by United States mail or by delivery service, and shall be effective upon receipt.

 

Seller:

                Interspace Living NY, LLC

                132 32nd Street, Suite 303

                Brooklyn NY 11232

 

All notices shall be in writing and shall be delivered to the address for Seller set forth below by facsimile or electronic mail with an additional copy delivered personally, by United States mail or by delivery service, and shall be effective upon receipt.