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Standard Terms and Conditions
1.GENERAL: Shenfeld Studio LLC (“Seller” or “SS”) and the person or entity to whom Seller’s sales contract, order acknowledgement, invoice, or other sales documents (each a “Sales Document”) is addressed (“Buyer”) are collectively referred to herein as the “Parties.” All offers and sales by Seller to Buyer are expressly conditioned on the Buyer’s acceptance of these terms and conditions. Buyer agrees that the first to occur of the following clauses (a) through (e) will conclusively constitute Buyer’s acceptance of these terms and conditions: (a) Buyer issues instructions to Seller for the delivery of any Products (as defined below) covered by a Sales Document to which these terms and conditions are attached or included, or incorporated by reference and made available to Buyer, (b) Buyer accepts or pays for any such Products, (c) Buyer executes such Sales Document, (d) Buyer installs the products, or (e) the passage of five days after Seller first delivers such Sales Document to Buyer and Buyer fails to deliver written notice to Seller of Buyer’s objection to these terms and conditions. Any purchase order or other communication from Buyer that contain terms or conditions in addition to or inconsistent with these terms and conditions will not apply to the purchase of any Products by Buyer or be used to waive, modify, vary, explain, or supplement all or part of these terms and conditions and are hereby objected to and rejected by Seller, unless their acceptance is made in writing by an authorized officer of Seller. Buyer also agrees to adopt and abide by the Seller’s standards as set forth in the Seller’s specifications for the Products.
2. PRICES: This proposal is firm for 90 days and then automatically expires. Seller’s prices are for 6 months from the date of the applicable purchase order. Unless stated otherwise, prices do not include any transportation surcharges or accessorial charges that the carrier may impose. Such surcharges and accessorial fees will be charged to Buyer. For shipments beyond 6 months, prices will be adjusted at the time of shipment if the U.S. Consumer Price Index (“CPI”) as published monthly by the U.S. Bureau of Labor Statistics, increases from the month of the applicable quote to the month of that precedes the month of shipment, and the adjustment will be for the percentage increase in the CPI during that period, but limited to 10%. Price modifications for other than such CPI increase will only be, by approved, written Change Orders issued by Seller and signed by Buyer. Buyer will have neither the right of offset against the purchase price of any Products nor the right to back charge any Sales Document unless Seller has given its prior written consent.
3. DELIVERY: Delivery dates listed in quotations or tentative delivery schedules provided by Seller are estimates only. Seller will make reasonable efforts to deliver in accordance with estimated dates. Seller will not be held liable for failure to deliver as estimated. Unpaid invoices, Buyer’s change orders and dates of approvals will affect delivery dates and project completion date. Delay in delivery of any installments will not relieve Buyer of its obligations to accept the initial or any revising installments. If shipments are delayed by the Buyer, invoices may be rendered on the date Seller is ready to make shipments.
4. PRODUCT CHARACTERISTICS: Buyer agrees and understands that clay is a natural material and there may be variations in size, color, texture, and finish that are inherent in fired ceramics and a desired property of Ceramic Materials. In addition, tolerances customary in trade with regard to size and thickness do not constitute a reason for a claim against the Seller. Crazing is a typical characteristic of glazed Ceramic Materials and is not considered a defect and does not impair the function or value of Product. Glazed tiles may be subject to crazing before or after installation and even years later.
5. INSPECTION:Buyer shall inspect the Product within 72 hours of delivery and notify Seller in writing of any damaged or defective Products within that inspection period. If Seller determines that the product is defective, Buyers sole remedy is that Seller will, in its sole discretion, repair or replace the Product or credit Buyer for the purchase price of the Product. Inspection period excludes damages, if any, during shipment, mishandling by Buyer, Buyer’s employees or agents. Buyer agrees that installation of product is acceptance.
6. WARRANTY: Seller warrants the Ceramic Materials manufactured by the Seller (the “Products’) against defects in workmanship and material for a period of 5 years after the date of final delivery, but this warranty will have no force or effect until Seller receives payment in full for the delivered Products. THIS WARRANTY IS MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. This warranty may not be transferred or Assigned to any third party without Sellers prior written consent. Seller is not responsible for design or engineering or the use to which Products are put by Buyer, or installation of any Products. Any specifications, brochures, demonstrations, samples, or training provided by Seller to Buyer for installation of Product does not impose liability on Seller for any installation by Buyer. This warranty does not apply to any Product that has been repaired or altered without Seller’s written consent, incorrectly installed, subjected to misuse, improperly maintained, or is damaged by accident, negligence, or other events outside of Seller’s control. Seller’s liability with respect to any claim by Buyer or any third party arising out of or in any way relating to any Products sold by Seller to Buyer will be limited solely to the repair, replacement, or credit of the purchase price of such Product and does not include any costs of removing any defective Product, or installing any replacement Product, shipping costs of replacement Product or any related costs or expenses. Replacement is limited to the furnishing of replacement Product. Any defective Product that is repaired or replaced is warranted only for the balance of the initial warranty period. SELLER WILL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES, LOST PROFITS OR OTHER LOSSES OF BUYER OR ANY THIRD PARTY IN ANY WAY RELATING TO ANY PRODUCT.
7. PAYMENTS: Terms are 50% due with assigned purchase order with the remainder due on delivery from date of invoice, payments not received from Buyer within term days will bear interest at a rate of 2% per month. No retention of payment by Buyer is permitted under the terms and conditions of this Proposal. Any unauthorized retention of payments by Buyer will relieve Seller from its obligations pertaining to fabricating and shipping subsequent Product. Deposit payment as specified in Sales Documents is required for production to commence. No engineering, modeling, color matching, or any other pre-production procedures will begin prior to receipt of deposit. Payment in full of any and all invoices is required prior to final delivery of Product. If Buyer defaults in any payment when due, Seller reserves the right to suspend delivery or cancel the order. Notwithstanding anything contained in these Terms and Conditions to the contrary, Seller reserves the right to ship its order and make collection by sight draft or on a C.O.D. basis or any other terms. Seller shall be entitled to reimbursement from Buyer for Seller’s costs of collection, including legal fees and disbursements.
8. SHIPMENT; RISK OF LOSS; TITLE: Buyers Change Orders may affect delivery times and project completion dates, especially when added during Seller’s production of a Product. Seller will not be liable for any late delivery caused by any Buyer Change Order. If freight must be prepaid, payment will be made for the account of Buyer. Seller may make delivery installments, separately invoiced and payable without regard to subsequent deliveries. Delay in delivery of any installment will not relieve Buyer of its obligations to accept the initial or any remaining installments. If shipments are delayed by Buyer, invoices may be rendered on the dates Seller is ready to make shipments. Unless otherwise stated, Products to be shipped outside the U.S. will be shipped via bonded carrier with all risk of loss for the Products passing to Buyer upon delivery to carrier. Products to be shipped within the U.S. will be shipped F.O.B. job site or Buyer’s storage facility, with all risk of loss for the Products passing to Buyer upon delivery to carrier. Products held by Seller as a result Buyer’s inability or refusal to accept delivery will be held at Buyer’s risk, cost, and expense, including but not limited to handling and storage. Title to the Products will pass to Buyer upon delivery to the job site or storage facility.
9. FORCE MAJEURE: Seller will not be liable for any delay or failure in performance of any order, in the delivery or shipment of any Product, or for any damages or losses suffered by Buyer or any third party that are caused by, or in any manner arise from, directly or indirectly, any labor disturbances, embargos, storms, fires, explosions, acts of God or public enemies, inability to obtain product from a supplier, accidents or breakdown to, or mechanical failure of, machinery or equipment, changes in economic conditions, delays or interruptions in transportation, or any causes beyond Seller’s control. Upon such delay or failure, Seller may, in its sole discretion and without any liability to Buyer, delay the performance of, partially perform, or cancel any affected order in whole or part.
10. SUCCESSORS AND ASSIGNS: SEVERABILITY: These terms and conditions will be binding upon the Parties and their respective successors and assigns; provided however, that Buyer may not assign or otherwise transfer (whether by operation of law or otherwise) any of Buyer’s rights or obligations hereunder without Seller’s prior written consent, which consent may be withheld in Seller’s sole discretion. If any provision of these terms and conditions is held by a court of competent jurisdiction to be unenforceable, the remaining provisions of these terms and conditions will remain in full force and effect.
11. DEFAULT: If Buyer (a) fails to pay any amount due to Seller when due, (b) fails to observe or perform any of its other obligations under these term and conditions, (c) takes any action that in Seller’s opinion adversely affects the name, reputation, or goodwill of Seller or its Products, or (d) becomes insolvent, is adjudicated a bankrupt, voluntarily files or permits the filing of a petition in bankruptcy, makes an assignment for the benefit of creditors, seeks any similar relief under any bankruptcy laws or related statutes, or a receiver is appointed for its assets then, at Sellers sole option, all sums due or to become due from Buyer to Seller will become immediately due and payable, and concurrently, Seller may terminate any existing order between the Parties in whole or in part, defer shipment or delivery of any Products, sell any part if any undelivered Products, and exercise any other remedies available to Seller under applicable law.
12. GOVERNING LAW; JURISDICTION; VENUE; WAIVER OF JURY TRIAL: The Sales Document and these terms and conditions will be governed by and construed according to the laws of the State of New York, without reference to the principles of conflicts of law. Each of the Parties hereby irrevocably and unconditionally (a) consents to submit to the exclusive jurisdiction of the United States District Court for the Northern District of New York or the applicable state court located in the State of New York, County of Onondaga for any action or proceeding arising out of or relating to the sale of Product/s to the Buyer or otherwise in connection with the Sales Documents or these Terms and Conditions, (b) waives any objection to laying of venue of any such action or proceeding in such courts and (c) waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any court has been brought in an inconvenient forum. EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SALES DOCUMENTS OR THESE TERMS AND CONDITIONS. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (1) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. AND (2) EACH PARTY MAKES THIS WAIVER VOLUTARILY.
13. SECURITY INTEREST: Buyer hereby grants to Seller a priority lien and security interest in Products sold to Buyer and in all proceeds of such Products to secure Buyer’s obligations to Seller hereunder. Buyer appoints each officer of Seller as an attorney-in-fact for Buyer for the purpose of executing and filing each financing statement or other documents necessary to perfect such security interest. Upon the failure of Buyer to pay the purchase price for any Products when due, or to perform any of Buyer’s obligations under these terms and conditions, Seller will have all rights and remedies of a secured party under the Uniform Commercial Code of the State of New York and any other applicable law.
14. COSTS AND EXPENSES; INDEMNIFICATION: Buyer will be responsible for all cost and expenses, including attorney’s fees and disbursements, incurred by Seller in enforcing any terms and condition herein, and Buyer will indemnify, and promptly reimburse Seller for such costs and expenses. To the fullest extent permitted by law, Buyer will defend, indemnify and hold harmless Seller from and against claims, damages, losses, and expenses, including but not limited to attorney’s fees and disbursements, arising out of, relating to, or resulting from Buyer’s purchase and installation of any Product, caused in whole or in part by the negligent acts or omissions of Buyer, regardless of whether such claim, damage, loss, or expense is allegedly caused in part by Seller. The obligation to defend is to provide a full defense at the sole cost and expense of Buyer, regardless of any alleged culpability on the part of Seller or any ultimate determination of relative shares of liability of Buyer and Seller or limitation of Buyer’s indemnity obligations in light of such determination. To the extent any of the foregoing defense, indemnity, or hold harmless obligations are made void or otherwise impaired by any law controlling their construction (including but not limited to laws limiting such obligations to the extent of the portion of damages caused by an indemnitor attributable to bodily injury, sickness, disease, or death, or to injury, destruction, or loss of use of tangible property), such obligations shall be deemed to conform to the greatest rights to defense, indemnity, and being held harmless permitted by such law.

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