(a) These terms and conditions of sale (these "Terms") govern the sale of the goods ("Goods") by Flexsteel Industries, Inc. (“Flexsteel”) to Buyer identified on the applicable Sales Order to which these Terms are incorporated and relate. The accompanying quote and invoice, along with these Terms, and warranties for Goods (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
(a) If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Flexsteel's notice that the Goods have been delivered at the Delivery Point, or if Flexsteel is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Flexsteel, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3. Title and Risk of Loss
Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point.
4. Amendment and Modification
These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
5. Inspection and Rejection of Noncomforming Goods
(a) Buyer shall inspect the Goods within 72 hours of receipt ("Inspection Period"). Buyer will be deemed to have accepted the Goods unless it notifies Flexsteel in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Flexsteel. "Nonconforming Goods" means only the following: (i) product shipped is different than identified in Buyer's purchase order; or (ii) product's label or packaging incorrectly identifies its contents. (b) If Buyer timely notifies Flexsteel of any Nonconforming Goods, Flexsteel shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to a Flexsteel facility. If Flexsteel exercises its option to replace Nonconforming Goods, Flexsteel shall, after receiving Buyer's shipment of Nonconforming Goods, ship to Buyer, at Buyer's expense and risk of loss, the replaced Goods to the Delivery Point. (c) Buyer acknowledges and agrees that the remedies set forth in Section 5(b) are Buyer's exclusive remedies for the delivery of Nonconforming Goods.
6. Limited Warranty
(a) Limited warranties for certain Flexsteel Goods can be found at www.flexsteel.com. (b)EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 6 (a) FLEXSTEEL MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE.
7. Limitation of Liability
(a) IN NO EVENT SHALL FLEXSTEEL BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT FLEXSTEEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. (b) IN NO EVENT SHALL FLEXSTEEL'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO FLEXSTEEL FOR THE GOODS SOLD HEREUNDER. (c) The limitation of liability set forth in Section 7(b) above shall not apply to (i) liability directly attributable to or resulting from Flexsteel's gross negligence or willful misconduct and (ii) death or bodily injury directly attributable to or resulting from Flexsteel’s acts or omissions. (d) Buyer shall defend (including attorneys’ fees), indemnify and hold Flexsteel harmless from and against all damages, causes of action, claims, liabilities, penalties, personal injuries (including death), personal property or environmental damages caused by Buyer’s negligence, strict liability, breach of warranty, breach of this Agreement, fault, omission, or conduct arising, without limitation, from the handling, transportation, modification, storage and use of the Goods.
Flexsteel may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
No waiver by Flexsteel of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Flexsteel.
10. Force Majeure
Flexsteel shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Flexsteel including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of sixty (60) days, Buyer shall be entitled to give notice in writing to Flexsteel to terminate this Agreement.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Flexsteel. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
12. Governing Law
All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Iowa without giving effect to any choice or conflict of law provision or rule (whether of the State of Iowa or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Iowa.
13. Submission to Jurisdiction
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Iowa and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Agreement or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Governing Law, Submission to Jurisdiction, and Survival.