Terms and Conditions

These Sheppard’s Business Interiors Terms and Conditions (these “Terms”) shall apply to all sales of goods and products (“Products”) and installation services (“Services”) by Sheppard’s Business Interiors, Inc. and its affiliates (“SBI”), and are hereby incorporated into and made a part of every proposal, quotation, or purchase order issued or accepted by SBI to or from the buyer identified in such proposal, quotation or purchase order (“Buyer”). Buyer shall be deemed to have accepted and agreed to these Terms by purchasing Products or Services from SBI pursuant to any such proposal, quotation, or purchase order (each, an “Order). These Terms, together with the Order and any other document referenced herein are hereby collectively referred to as the “Agreement”. If any provision in the Order is inconsistent with these Terms, the provision of the Order will govern. No additional or different terms or conditions in any Order or any modifications, changes, or amendments to this Agreement shall be binding upon SBI unless specifically agreed to in writing by an authorized representative of SBI. Any additional or different terms already or hereafter proposed by Buyer, whether in an Order or other communication or otherwise, are hereby rejected and shall not apply. The lack of objection by SBI to any additional, modifying, or deleting provisions contained in any Orders or other communications from Buyer shall not be construed either as a waiver of the terms of this Agreement or as an acceptance by SBI of any deviation from these Terms. In the event that Buyer and SBI have entered into a MSA or other agreement, these Terms shall apply to all purchases of Products and provision of Services under such MSA or agreement.

  I.  ORDER PLACEMENT
A. AUTHORIZATION: An order with a manufacturer will not be placed without an Order from the Buyer or Buyer’s acceptance of SBI’s written quotation by signature from an authorized representative of Buyer.
B. REQUESTED DELIVERY DATE: SBI and Buyer will agree to a delivery date before any order will be placed with a manufacturer (“Requested Delivery Date”).
C. ORDER CANCELLATIONS OR CHANGES: Orders accepted by SBI are noncancellable and cannot be changed unless otherwise agreed in writing by SBI.

 

  II.  CREDIT AND PAYMENT TERMS
A. DEPOSITS: At SBI’s discretion, Buyer may be required to pay a nonrefundable deposit upon SBI’s acceptance of an Order.
B. CREDIT AUTHORIZATION: Credit limits or lease terms may be authorized upon completion of credit application and review of Buyer’s credit history. Customer’s intent to utilize a lease for the acquisition of furniture, and name of the lessor, must be disclosed to SBI prior to order placement.
C. PAYMENT TERMS: If credit is approved, payment shall be due thirty (30) days from the date printed on the invoice. Payment by credit card will be subject to a 3.0% transaction fee.
D. INVOICE DATE: Buyer will be invoiced upon substantial completion of delivery and installation. For Products shipped by manufacturer directly to a Buyer’s site, Buyer will be invoiced when Products are delivered at the job site. Delays to installation dates caused by Buyer beyond the Requested Delivery Date may result in SBI invoicing the amount of the Products being retained in SBI’s warehouse.
E. LATE PAYMENTS: A charge of 18% per annum (or the maximum amount allowed by law, if less) will be made on past due accounts. Buyer shall reimburse SBI for all collection costs, court costs, administration costs, investigation costs, attorneys’ fees and all other incidental costs, charges or expenses incurred in the collection of past due amounts or otherwise resulting or arising from any breach by Buyer of this Agreement. In addition to all other remedies available under this Agreement or at law, SBI shall be entitled to suspend the delivery of any Products or performance of Services under this or any other agreement between the parties, if Buyer fails to pay any amount when due hereunder and such failure continues for five (5) days following written notice thereof.

 

III.  CHANGE ORDERS AND OTHER CHARGES
A. WAREHOUSE HANDLING AND STORAGE: If the job site is not available for delivery on the Requested Delivery Date, SBI may store Products at its warehouse at Buyer’s sole expense if space is available. Buyer shall pay any and all storage charges at the current stated rate per square foot and agrees to pay for additional handling at the current stated hourly rate.
B. EXTRA HANDLING COSTS AT JOB SITE: Charges will be assessed to the Buyer for excessive handling, storage and transportation incurred because of unacceptable job site conditions, interruptions due to activity of other trades, or other reasons beyond SBI’s control, not specifically identified in the Order. Charges will be invoiced at SBI’s then-current stated hourly rates, or negotiated charges if additional costs are incurred by SBI if work is performed by a third party.
C. OVERTIME: Unless otherwise stated, delivery and installation will be scheduled between 8:00 AM and 4:30 PM Monday through Friday, excluding holidays. Any additional labor costs resulting from overtime work performed at Buyer’s request or due to unacceptable job site conditions shall be paid by the Buyer. Labor performed outside of the hours stated above will be invoiced at 150% of the regular hourly rate. The hourly rate for labor performed on Sundays and holidays will be invoiced at 200% of SBI’s regular hourly rates.

 

  IV.  DELIVERY AND INSTALLATION OF PRODUCTS
A. JOB SITE CONDITIONS: Buyer shall ensure the job site will be clean and clear of all obstructions prior to installation. Buyer will provide adequate facilities and space for unloading, staging, moving, handling, and storing Products at the job site. Buyer will furnish all electrical current, heating, lighting, and elevator service at the job site at Buyer’s sole expense.
B. PROTECTION OF DELIVERED GOODS: All shipments of Products shall be DAP Buyer’s job site (Incoterms 2020). SBI shall not be liable for any loss or damages sustained by Buyer for Products not received by the Requested Delivery Date. Risk of loss to the Products shall transfer to Buyer upon delivery of the Products to the job site. For the avoidance of doubt, Buyer shall be liable and responsible for all Products upon delivery to the job site, and Buyer shall not be released from any obligations under this Agreement, including Buyer’s obligation to make payment in full, due to any loss, damage, or theft following delivery of the Products.
C. DROP SHIPMENTS: In case of drop shipments where Products are delivered direct from the manufacturer to the job site without SBI’s installation services, risk of loss to the Products shall transfer to Buyer upon shipment. Buyer shall be solely liable for and responsible to receive, inspect and install Products. Buyer is responsible to file freight or damage claims in the event of damage to Products.
D. ACCEPTANCE: Buyer shall inspect the Products within thirty (30) days of delivery or completion of installation and either accept or reject such Products or Services. All defects and nonconformities that are not so specified within thirty (30) days of delivery or installation will be deemed waived by Buyer, such Products and Services shall be deemed to have been accepted by Buyer. BUYER’S EXCLUSIVE REMEDY, AND SBI’S SOLE OBLIGATION, FOR ANY NONCONFORMING PRODUCTS OR SERVICES SHALL BE, AT SBI’S SOLE DISCRETION, REPLACEMENT PRODUCTS SHIPPED TO BUYER’S DESTINATION OR REPERFORMANCE OF SERVICES, AT SBI’S EXPENSE.

 

  V.  ADDITIONAL TERMS
A. TITLE AND SECURITY INTEREST: Title to merchandise shall pass upon delivery of such merchandise, whether all or any portion of that ordered hereunder, to the job site. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to SBI a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Products sold hereunder, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this section constitutes a purchase money security interest under the applicable Uniform Commercial Code. Buyer authorizes SBI to file a financing statement describing the Products (which may include generic references or categories) and agrees to execute such other documentation, and to take such other and further action as may be required by SBI, for the purposes of maintaining and perfecting such security interests.
B. WARRANTIES: SBI warrants that its Services will be in conformance with agreed upon specifications for a period of one (1) year. Buyer’s sole and exclusive remedy, and SBI’s sole liability and responsibility for a breach of this warranty will be for SBI to reperform such Services. EXCEPT AS SET FORTH IN THIS SECTION, THE PRODUCTS AND SERVICES ARE PROVIDED “AS-IS”, AND SBI MAKES NO OTHER WARRANTIES, WHETHER EXPRESSED, STATUTORY, OR IMPLIED. Buyer acknowledges and agrees that the Products are manufactured by a third party. To the extent that any warranties made or given by such third parties for the Products which are assignable by their terms are hereby assigned to Buyer. If any warranties made or given by such third parties are not assignable, SBI shall use commercially reasonable efforts to enable Buyer to receive the benefit from such warranties. Work requested by buyer that is not covered under manufacturer warranty will be billed at SBI’s standard labor rate in effect at time service work is performed.
C INDEMNIFICATION: TO THE FULLEST EXTENT PERMITTED BY LAW, BUYER SHALL DEFEND, PROTECT, INDEMNIFY AND HOLD SBI, AND ALL OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, PARTNERS, EMPLOYEES, SUCCESSORS AND ASSIGNS HARMLESS FROM AND AGAINST ALL CLAIMS, LIABILITIES, DAMAGES, DEMANDS, LAWSUITS, CAUSES OF ACTION, PENALTIES, FINES, EXPENSES (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES) AND COSTS ASSERTED OR INITIATED BY A THIRD PARTY TO THE EXTENT ARISING OUT OF (i) BUYER’S BREACH OF THIS AGREEMENT; (ii) BUYER’S NEGLIGENCE OR WILLFUL MISCONDUCT; AND (iii) INJURY, DEATH, OR DAMAGE TO ANY PROPERTY RESULTING FROM THE PRODUCTS.
D LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SBI BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES OR PUNITIVE DAMAGES OR “COSTS OF COVER” ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY DAMAGES ARISING OUT OF ANY MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, DEFECTS, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS, OR ANTICIPATORY PROFITS, REGARDLESS OF WHETHER THE POSSIBILITY OF SUCH DAMAGES WERE MADE KNOWN OR WAS FORESEEABLE. THE MAXIMUM AGGREGATE LIABILITY OF SBI AND ITS AFFILIATES TO BUYER AND ITS AFFILIATES, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY BUYER TO SBI UNDER AN ORDER FOR THE PRODUCTS FROM WHICH THE CLAIM AROSE.
E MISCELLANEOUS: This Agreement: (i) may be modified only by a writing signed by each of the parties; (ii) may be executed in several counterparts, each of which is deemed an original but all of which constitute one and the same instrument; (iii) is governed by, and will be interpreted, construed and enforced in accordance with, the laws of the State of Nebraska, without giving effect to its conflict of laws rules; (iv) is binding upon, and will inure to the benefit of, the parties and their respective successors and permitted assigns; and (v) constitutes the sole and entire agreement of the parties with respect to the subject matter herein, and supersedes all prior and contemporaneous written or oral negotiations, understandings, agreements, representations, and warranties, with respect to the subject matter herein. Each party expressly consents to the exclusive jurisdiction of the federal, state and local courts serving Douglas County, Nebraska, to govern all disputes arising out of or relating to this Agreement. The due performance or observance by a party of any of its obligations under this Agreement may be waived only by a writing signed by the party against whom enforcement of such waiver is sought, and any such waiver will be effective only to the extent specifically set forth in such writing. The waiver by a party of any breach or violation of any provision of this Agreement will not operate as, or be construed to be, a waiver of any subsequent breach or violation hereof. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. Articles II, III, IV, and V of this Agreement, as well as any other provision that, in order to give proper effect to its intent should survive the expiration or termination of this Agreement, will survive such expiration or termination.