TERMS AND CONDITIONS OF SALE
PARTIES. This document establishes the terms and conditions of sale between Tufenkian Carpets Portland, LLC (“Tufenkian “) and “Buyer”. As used in this document Buyer shall mean the legal entity or individual(s) identified as the customer on Tufenkian’s sales order and/or quote form to which these Terms and Conditions of Sale are attached. These Terms and Conditions together with the attached sales order and/or quote and, if applicable, the Consignment Form, are referred to herein collectively as, this “Agreement”).
PAYMENT AND DEPOSITS. Prices quoted in a sales order and/or quote form are valid for 30 days from the date provided. Thereafter, prices are subject to change without notice to Buyer until the order is accepted by Tufenkian. A 50% deposit must accompany all orders. For Custom goods, the deposit must be received before any production can commence. Final payment must be received before the goods are delivered to the Buyer unless the goods are delivered “on approval”.
GOODS ON APPROVAL. If Tufenkian agrees to provide Buyer with Goods on Approval, then Buyer must provide (i) a signed credit card authorization, and (ii) a signed Consignment Form, the terms of such Consignment Form are made a part of this Agreement.
ADDITIONAL COSTS. Unless specifically stated to the contrary, all delivery, packing, crating, shipping, in-transit insurance, local delivery, uncrating and installation charges, cutting for doors, as well as sales or other taxes are in addition to the stated purchase price. No installation services are included in this order unless specifically noted on Tufenkian’s sales order and/or quote. Buyer will be liable for all costs, expenses and fees, including attorney’s fees, incurred by Tufenkian in collecting monies due hereunder.
FIRM ORDER. All orders are considered final. Should Tufenkian accept a cancellation of an order (which acceptance may be withheld by Tufenkian for any reason), Tufenkian shall have the right to retain, in full, the deposit paid by Buyer for such order. Tufenkian will not accept cancellation of a Custom or Special Order.
VARIANCE. Merchandise is likely to vary slightly from the description, the sample, and within different areas of the finished rug itself. The subtle variations in color, design, texture, and construction in our products are the result of using traditional materials and employing hand labor. They constitute much of the added value of our products compared to lesser alternatives that are produced more mechanically. A rug will only be considered unacceptable if the deviation is “decoratively significant.” This means that the variation is of such a nature that because of it, the carpet cannot work in its intended decorative environment. Tufenkian carpets are produced to the specified size within a normal range of production variance that is +/- 6% in length and +/- 4% in width. Within the acceptable range of variance in width or length of our carpets, it is possible that any given rug will not be the same width or length along its entire side or end and will not line up exactly with strong linear elements near to it in the decorative environment. Fluffing and sprouting of yarns are a textile phenomenon and are not considered a manufacturing defect; some loose yarns are to be expected and may need to be clipped. Specific to broadloom orders: (i) all custom orders are subject to mill overage; and (ii) all carpets will be seamed as necessary unless otherwise instructed in writing by Buyer.
BUYER INFORMATION. Tufenkian has the absolute right to rely upon the accuracy of all information, plans, drawings, specifications and measurements provided to it by Buyer. Tufenkian has no obligation to, nor will it seek to, verify the accuracy of any such information.
TUFENKIAN MAKES NO PERFORMANCE WARRANTY. ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, ARE EXPRESSLY EXCLUDED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
ADDITIONAL WARRANTIES. Any oral statements about merchandise made by Tufenkian’s employees or agents do not constitute warranties, shall not become a part of this Agreement and shall not be relied upon by Buyer. In no event shall Tufenkian be responsible for the correctness of, or be deemed to have made, any representation or warranty of description, size, medium, genuineness, attribution, provenance, authenticity, age or condition concerning the merchandise.
FORCE MAJEURE. Tufenkian shall not be responsible for any delay in delivery or failure in performance for any cause beyond Tufenkian’s control (including, but not limited to, labor disputes, failure or delay of sources to supply, transportation difficulties, accidents, fires or acts of God) or any event which interferes with the normal business operations of Tufenkian or any supplier or transporter. Quoted delivery dates are approximate only. Tufenkian is not responsible and Buyer is not relieved of its obligations where on-site conditions or limitations prevent delivery. In all cases, it is the responsibility of Buyer to determine that the size of the completed items can be accepted by elevators, entry doors and other points of entry.
FREIGHT CARRIERS. If the Buyer has not identified a preferred transport company, Tufenkian will choose one on its behalf. All freight charges including insurance, are pre-billed and must be paid before shipment is made. If the Buyer has arranged pickup by their own carrier, Buyer is responsible to pay the carrier directly. Title and risk of loss of an item changes once the order ships from or on behalf of Tufenkian. Tufenkian is not responsible for freight damage, concealed freight damage or loss of product, once shipped. If shipment is insured, all losses or damages acquired during shipping are the responsibility of the freighting company.
FINAL SALE. Buyer is responsible for promptly inspecting goods for conformity to the Buyer’s specification and to Tufenkian’s normal quality parameters. In the event of non-conformity, Buyer must notify Tufenkian, in writing, within 5 days of receipt, detailing such non-conformity, otherwise, upon delivery, all sales are final. Conversion of the product by cutting, seaming, or other alteration of any sort is deemed to be acceptance by the Buyer and no return or refunds shall be considered.
STORAGE CHARGES. Any rug not accepted by Buyer within thirty (30) days after notification shall be subject to storage charges as determined by Tufenkian. Additional charges may be incurred related to freight costs for returning the goods to Tufenkian’s warehouse. Tufenkian may opt to fill other orders with the rug previously reserved for Buyer in the event that full payment is not received within thirty (30) days. In such event, Buyer’s order may incur additional wait time while a new rug becomes available.
LIMITATION OF LIABILITY. In no event shall Tufenkian be liable for any consequential or incidental damages. In no event shall Tufenkian’s liability, for any reason, exceed the amount actually paid by Buyer to Tufenkian for the merchandise.
INDEMNIFICATION. Where any specific design or construction is produced and supplied to Buyer’s specifications, Buyer agrees to indemnify Tufenkian against all actions, proceedings, costs, claims, damages, expenses and demands, whatsoever, arising or resulting from the rights or claims of third parties, including but not limited to, infringement of copyrights, trademarks and design patents.
PARTIAL UNENFORCEABILITY. If any provision of this Agreement is declared invalid by any tribunal the remaining provisions of the Agreement shall not be affected thereby.
SALES TO DESIGNERS FOR FURTHER RESALE TO END CUSTOMERS. In the event Buyer is a designer that contemplates reselling the rugs, Tufenkian’s contractual relationship and the application of these Terms & Conditions shall remain with the Designer who shall be considered the Buyer. Under no circumstances may this relationship be assigned or moved to another party or end customer, whether through an agency relationship or otherwise. Buyer shall be responsible for the collection and payment of any sales taxes due from the end customer, unless a specific arrangement is made with Tufenkian. Tufenkian’s acceptance of payment from anyone other than Buyer shall be as an accommodation only, and shall not create a vendor-vendee relationship express or implied with any one payor other than the Buyer. Buyer hereby confirms its agreement and responsibility to disclose any commissions or designer markup received from Tufenkian to the end customer. In addition, Buyer agrees to fully indemnify Tufenkian (including all costs and legal fees) in the event that the end customer was to assert a claim related to the transaction(s) contemplated hereby in the event an end customer names Tufenkian in such claim.
ENTIRE AGREEMENT. This Agreement sets forth the entire agreement between Tufenkian and Buyer. Buyer is not relying on any prior discussions, agreements, warranties or representations made by either party, all of which are superseded by this Agreement. This Agreement cannot be modified, except by a further writing signed by both Buyer and Tufenkian.
DISPUTES. Any action claiming Tufenkian’s breach of this Agreement must be commenced by Buyer within one (1) year after the cause of action has accrued.
This Agreement shall be interpreted in accordance with the laws of the State of Oregon. Any action or proceeding involving any dispute or matter arising under the Agreement may only be brought in the United Stated District Court or Oregon State Court for Portland having jurisdiction over the subject matter of the dispute or matter. Tufenkian and Buyer hereby consent to the exercise of personal jurisdiction by any such courts with respect to any such action or proceeding. Tufenkian and Buyer waive any claim that any action or proceeding should be brought in a different jurisdiction or venue.
Tufenkian Carpets Portland, LLC