ACCEPTANCE OF TERMS
In the absence of a written agreement signed by MDC Interior Solutions, LLC. (including any subsidiaries or affiliates, “MDC”), all sales of products (“Products”) by MDC to the Buyer will be governed by these these Standard Terms of Sale (these “Terms of Sale”). If the terms and conditions of any offer from Buyer or any other Buyer-issued document differ from these Terms of Sale, these Terms of Sale shall be construed as a counteroffer and will not be effective as an acceptance of Buyer’s terms and conditions, which are hereby rejected. THESE TERMS OF SALE, TOGETHER WITH THE TERMS SPECIFIED BY MDC IN ANY QUOTATION, PURCHASE ORDER ACCEPTANCE, OR INVOICE ISSUED BY MDC WITH RESPECT TO THE PRODUCTS SHALL BE THE COMPLETE AND EXLUSIVE STATEMENT OF THE TERMS OF AGREEMENT BETWEEN BUYER AND MDC. Buyer’s failure to object to these Terms of Sale in writing within five (5) days of receipt thereof or Buyer’s acceptance of the Products shall constitute acceptance of these Terms of Sale. No addition to or modification of these Terms of Sale will be effective unless made in writing signed by MDC.
QUOTATION AND PRICES
All prices included on any quotation issued by MDC may be exclusive of shipping, insurance, taxes, license, fees, customs duties and other charges related thereto, and Buyer shall pay all such charges; provided that, if MDC, in its sole discretion, chooses to pay any such charges, Buyer shall reimburse MDC therefor in full upon demand. Quotations may include a shipping charge that is non-refundable and that MDC may require Buyer to pay in advance. If the actual shipping costs are greater than the non-refundable shipping charge, Buyer shall pay or reimburse MDC for such additional costs.
All payments are due and payable in U.S. dollars within thirty (30) days from the invoice date. MDC reserves the right to require alternative payment terms, including, without limitation, a letter of credit, cash on delivery, credit card payment, or payment in advance. Payments not made by the due date may incur, at the sole discretion of MDC, a late payment service charge of the lesser of one and one-half percent (1-1/2%) per month or the maximum rate permitted by law, computed from the date payment was due. If, for any reason, an invoice becomes delinquent, Buyer, or its agent, agrees to pay all costs of collection, including, but not limited to, reasonable attorney fees and legal costs. Buyer agrees to waive any objections to venue and agrees to submit to a court of competent jurisdiction selected by MDC.
Shipping and delivery dates are estimates only, and in no event shall MDC be liable for any delay in delivery or assume any liability in connection with shipment. All Products shall be delivered F.O.B. MDC’s place of shipment. MDC may require Buyer to prepay a non-refundable shipping charge; provided, that, if actual shipping costs exceed the non-refundable shipping charge, Buyer shall pay or reimburse MDC for such additional costs.
All Products sold by MDC are sold with a limited warranty. For the applicable warranty information, see mdcwall.com/warranty
EXCEPT FOR ANY LIMITED WARRANTY PROVIDED IN WRITING BY MDC TO BUYER, (a) ALL PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND OTHER THAN SUCH WARRANTY AS MAY BE PROVIDED IN WRITING TO BUYER BY OR ON BEHALF OF THE MANUFACTURER OF THE PRODUCTS (FOR WHICH WARRANTY SUCH MANUFACTURER SHALL BE SOLELY LIABLE), AND NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED ARE MADE WITH RESPECT TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (b) MDC DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE PRODUCTS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE; (c) MDC DOES NOT WARRANT THAT THE PRODUCTS WILL BE ERROR FREE; and (d) MDC EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES.
LIMITATION OF LIABILITY
It is the sole obligation and responsibility of Buyer of the Products to determine the character of the merchandise and to select suitable Products for the purpose intended. To the extent not prohibited by applicable law: (a) MDC’s aggregate liability to Buyer from claims related to the Products, whether for breach or in tort, including negligence, is limited to the amounts Buyer has paid to MDC for the Products; and (b) MDC WILL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THESE TERMS OF SALE, THE PRODUCTS OR THE SALE, INSTALLATION, MAINTENANCE, USE, PERFORMANCE OR NON-PERFORMANCE OF THE PRODUCTS (INCLUDING, BUT NOT LIMITED TO, REPLACEMENT COSTS OR LOSS OF BUSINESS, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE), HOWEVER THEY ARISE, WHETHER FOR BREACH OR IN TORT, INCLUDING NEGLIGENCE, EVEN IF MDC HAS BEEN PREVOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The parties acknowledge that if MDC provides the Products to Buyer, it does so in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. Liability for damages will be limited and excluded as set forth in this paragraph, even if any exclusive remedy provided for in these Terms of Sale fails of its essential purpose.
Products may be returned ONLY if authorized by MDC in writing, which may be given or withheld in its sole discretion. All requests for returns must be made in writing within 30 days of Buyer’s receipt of the Products. Returns will not be accepted on open Products or for any partial orders, or on any custom or non-stock orders. Buyer shall pay a restocking charge of at least 40% on any returned Products. Where custom goods or non-stock goods are involved, Buyer shall be responsible for all related work in progress; however, MDC shall take reasonable steps to mitigate damages upon receipt of written cancellation notice from Buyer. A Return-Goods-Authorization (RGA) number must be obtained from MDC prior to any return of Products. MDC may, in its sole discretion, issue a merchandise credit in exchange for returned products rather than a cash refund. Any merchandise credit provided by MDC will expire one year after the credit is issued.
It is Buyer’s responsibility to inspect Products upon receipt, and to notify MDC of any damage to Products, incorrect quantities, or failure of the Products to meet written specifications or order requirements. All Products delivered hereunder shall be deemed accepted by Buyer, unless written notice of defect or nonconformity is received by MDC within ten (10) days of Buyer’s receipt of Products at Buyer’s designated receiving address; provided that Buyer may only reject Products for failure to meet the Products specifications.
Buyer acknowledges reading these Terms of Sale, understands them and agrees to be bound by them. A waiver of any provision of this agreement shall not be construed as a waiver or modification of any other term hereof. With respect to all orders accepted by MDC, disputes arising in connection with these Terms of Sale shall be governed by the laws of the State of Illinois, without regard to principles of conflicts of laws. Application of the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded. Each party hereby consents to the jurisdiction of any state or federal court located in Dupage County, Illinois with respect to any proceeding arising hereunder.