Agreement: The following terms and conditions (the “Terms”) apply to all sales of products and services (“Products”) by SS Industries, LLC d/b/a Mylen Stairs (“Company”) to any customer (“Customer”) identified in the applicable agreement, quotation, work order, purchase order, invoice, or Statement of Understanding (“SOU”). The SOU together with these Terms are referred to as the “Sales Order.”
Acceptance of Orders/Terms:
All orders are subject to acceptance by Company. Company reserves the right to reject any order. All of Company’s sales are subject to these Terms, and these Terms are incorporated into any quotation, work order, purchase order, invoice, specifications or SOU accompanying or referring to these Terms (“Ancillary Documentation”). Acceptance of any order by Company is expressly conditioned on Customer’s acceptance of these Terms.
Any terms or conditions contained in any Ancillary Documentation associated with an order, as well as any confirmation or other communication of Customer which add to, differ from, modify, conflict with, or are otherwise inconsistent with any term or condition in this Sales Order are objected to and rejected by Company. Specifically, the Customer shall bear responsibility for the accuracy of the specifications that are stated in the Ancillary Documentation. The Company provides such specifications in advance of the finalization of Customer’s order. By signing the order documentation containing such specifications, Customer certifies that such specifications are accurate. In cases where the specifications are communicated to the Company verbally, or by an agent or contractor on behalf of the Customer, Customer should take special care in reviewing the specifications prior to signing the order documentation.
Product Changes: Company reserves the right to discontinue the manufacture or sale of any Product at any time or to alter, modify, or redesign the Products.
Price: All prices are subject to change without notice at any time before Customer has accepted this Sales Order.
Payment Terms: Customer credit approval is required prior to any shipment. If Company determines at any time that Customer’s financial condition does not justify the extension of credit to Customer, then Company may at its option require cash payments in advance. To initiate an order, the Customer must provide Company with a deposit of 50% of the purchase price. Prior to shipping any order to Customer, Company must receive the balance of the purchase price along with all applicable sales tax and shipping costs. Customer shall pay all of Company’s reasonable expenses incurred to enforce or collect any of the amounts due by Customer to Company, or to defend against any action or chargeback proceeding initiated by the Customer, including, without limitation, reasonable attorneys’ and experts’ fees and expenses, whether or not a lawsuit or other proceeding has been filed.
Cancellation/Change Orders: Orders for Standard Products may only be revised or canceled by Customer prior to the date of loading the Products onto a truck at the place of shipment, and only with Company’s prior written consent. “Standard Products” shall mean all adjustable sleeve metal stairs. Orders for nonstandard or custom Products may only be revised or canceled by Customer prior to the commencement of production, and only with Company’s prior consent. Any Product which Company has the capability of producing but does not inventory is considered a nonstandard or custom product. All cancelled orders, whether for standard Products or nonstandard or custom Products, shall be subject to a cancellation charge of 15% of the order price. If not cancelled as provided in this Sales Order, Customer shall be liable for the full order price.
Packaging/Shipping: Unless otherwise agreed by Company in writing: (a) Company shall select the method of shipment and carrier; and (b) costs for shipping are not included in the purchase price for the Products. Costs for special packaging and/or handling requested by Customer shall be the responsibility of Customer. Company assumes no responsibility for insuring shipments unless specifically agreed to in writing by Company, in which case the cost of insurance shall be paid for in advance by Customer.
Title/Risk of Loss: Title to the Products and any risk of loss associated with the Products shall pass to the Customer upon the earliest to occur of the following events: (a) the Customer having paid in full for the Products; or (b) Company notifying the Customer in writing that title to the Products has passed. With regard to Products that are returned to Company, title and risk of loss remain with Customer until receipt and acceptance of the Products by Company.
Delivery: Quotations of shipping costs and/or delivery dates are based on estimates at the time of order. Company shall use reasonable commercial efforts to meet such shipping and/or delivery dates, but Company shall not be liable for any direct or indirect costs or damages, including, without limitation, incidental or consequential damages, resulting from late deliveries.
Claims for Damage, Loss, or Shortage: The Customer is responsible for opening and inspecting the Products upon delivery and all claims for damage, loss, or shortage must be noted in writing on the shipping “Proof of Delivery” before the carrier leaves the Customer’s location. In no event shall Company be liable for damage, loss, or shortage to a shipment caused by a carrier or not noted as required on the Proof of Delivery. No claims for damage, loss, or shortage will be allowed unless they are accompanied by a signed Proof of Delivery noting such damage, loss, or shortage signed by a representative of the carrier and forwarded to Company within seven (7) days of the date of delivery. Customer is deemed to have accepted the order after the expiration of such seven (7) day period.
Return and Exchange of Products: Customer may return or exchange adjustable Standard Products within ninety (90) days of receipt of such Standard Products, provided that installation of such Standard Products has not commenced. Furthermore, all returns and exchanges must be authorized by a Company representative in writing prior to the return or exchange. Notwithstanding the foregoing, all other Products are not returnable or exchangeable, including, without limitation, custom Products, stairs with continuous sleeves, aluminum, all-wood, stairs with a wood handrail, and one-piece all-welded spiral stairs. For authorized returns, Company shall inspect the Products and shall refund Customer the purchase price paid by Customer, less a 15% restocking fee. For authorized exchanges, Company shall charge the Customer or refund the Customer based on the cost of the new Product versus the exchanged Product. Shipping charges are non-refundable. All shipping charges on exchanges will be paid by the Customer. Company reserves the right to amend its Warranty and Returned Goods Policy from time to time without notice to Customer.
Taxes/Duties: All prices exclude taxes, duties, assessments, and other charges imposed by any government authority with respect to the Products (“Taxes”), and such Taxes are the sole responsibility of Customer. In making payments to Company, Customer shall not withhold or deduct any amount for Taxes with respect to such payment. If Customer is required by any law or regulation to deduct or withhold Taxes from any payment to Company, Customer shall, together with such payment, pay a sufficient additional amount to Company (“gross up”), as determined by Company in its sole discretion, as to ensure that Company receives full payment. Customer represents and warrants to Company that the full amount of any such deductions or withholding shall be accurately and timely paid over to the relevant authorities and Customer shall promptly forward to Company copies of official receipts or other evidence satisfactory to Company regarding such payment. Customer shall indemnify and hold Company harmless, and reimburse Company upon its written request, for the amount of any Taxes paid by Company. Notwithstanding the generality of the forgoing, Customer shall be responsible for any Taxes (excluding taxes based on Company’s income or profits) that result from the purchase of the Products unless a valid and correct tax exemption certificate is furnished to Company at the time Customer places the order.
Warranty/Disclaimer of Warranties: THE PRODUCTS ARE SUBJECT TO THE PRODUCT-SPECIFIC WRITTEN WARRANTIES PROVIDED IN OR WITH THE PRODUCTS OR FOUND ON COMPANY’S WEBSITE (http://www.mylenstairs.com/mylen-stairs-warranty/). SUCH WARRANTIES ARE INTENDED EXCLUSIVELY FOR THE BENEFIT OF THE END-USER AND NOT CUSTOMER (UNLESS CUSTOMER IS THE END-USER). EXCEPT AS EXPRESSLY SET FORTH IN SUCH WARRANTIES OR THIS SALES ORDER, CUSTOMER DISCLAIMS, AND COMPANY WAIVES, ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, ORAL OR WRITTEN, OR ARISING UNDER ANY STATUTE, ORDINANCE, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE), TO THE EXTENT PERMITTED BY LAW. IF ANY IMPLIED WARRANTIES APPLY AS A MATTER OF LAW, THEY ARE LIMITED IN DURATION TO THE LENGTH OF THE APPLICABLE PRODUCT WARRANTY. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER. CUSTOMER MAY ALSO HAVE DIFFERENT AND/OR ADDITIONAL RIGHTS AND REMEDIES THAT VARY FROM STATE TO STATE.
NO EMPLOYEE, AGENT, OR REPRESENTATIVE OF COMPANY IS AUTHORIZED TO MAKE ANY STATEMENT, WARRANTY, OR REPRESENTATION REGARDING THE PRODUCTS. CUSTOMER SHALL NOT BE ENTITLED TO RELY OR SEEK TO RELY UPON ANY STATEMENT, WARRANTY, OR REPRESENTATION MADE BY ANY EMPLOYEE, AGENT, OR CONTRACTOR OF COMPANY, NOR SHALL COMPANY BE RESPONSIBLE FOR ANY LOSS OR DAMAGE INCURRED OR SUFFERED BY CUSTOMER AS A RESULT OF RELYING UPON SUCH STATEMENT, WARRANTY, OR REPRESENTATION, UNLESS SUCH STATEMENT, WARRANTY, OR REPRESENTATION IS EXPRESSLY SET FORTH IN WRITING AND SIGNED BY AN AUTHORIZED OFFICER OF COMPANY.
Remedies of Customer/Limitation of Liability: THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER AND THE SOLE AND EXCLUSIVE OBLIGATION OF COMPANY FOR ANY CLAIM THAT THE PRODUCTS DELIVERED DO NOT CONFORM TO THE SALES ORDER SHALL BE EITHER THE RETURN OF THE PURCHASE PRICE PAID BY CUSTOMER TO COMPANY RELATED TO THE BREACH, OR AT COMPANY’S ELECTION, THE DELIVERY OF CONFORMING PRODUCTS TO CUSTOMER. WITH RESPECT TO COMPANY’S NONCOMPLIANCE WITH ANY OTHER OBLIGATION OF COMPANY UNDER THE SALES ORDER, THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER AND THE SOLE AND EXCLUSIVE OBLIGATION OF COMPANY WILL BE AS COMPANY IN ITS DISCRETION WILL DETERMINE, AS FOLLOWS: (A) COMPANY MAY ELECT TO CURE SUCH NONCOMPLIANCE WITHIN A REASONABLE PERIOD OF TIME; OR (B) IF COMPANY FAILS TO CURE SUCH NONCOMPLIANCE, CUSTOMER MAY RECOVER AN EQUITABLE AMOUNT NOT TO EXCEED THE TOTAL PURCHASE PRICE PAID TO COMPANY BY CUSTOMER RELATING TO THE BREACH. CUSTOMER WAIVES ALL OTHER REMEDIES, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE REMEDIES OF SPECIFIC PERFORMANCE AND REPLEVIN. ANY ACTION BROUGHT BY CUSTOMER IN CONNECTION WITH OR ARISING OUT OF THE SALES ORDER OR THE USE OR POSSESSION OF THE PRODUCTS MUST BE COMMENCED WITHIN THREE (3) MONTHS AFTER SUCH CAUSE OF ACTION ACCRUES OR IT WILL BE DEEMED WAIVED. IN NO EVENT SHALL COMPANY BE RESPONSIBLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, OR LOSS OF INCOME, ARISING OUT OF THE SALES ORDER OR THE USE OR POSSESSION OF THE PRODUCTS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE. NOTWITHSTANDING ANYTHING IN THE SALES ORDER TO THE CONTRARY, COMPANY’S LIABILITY TO CUSTOMER, REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, SHALL IN NO EVENT EXCEED AMOUNTS PAID BY CUSTOMER TO COMPANY FOR THE PRODUCTS INVOLVED, AND CUSTOMER RELEASES COMPANY FROM ALL CLAIMS AND LIABILITIES IN EXCESS OF THIS LIMITATION. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
Excused Performance: Company shall be under no liability for any failure to perform any of its obligations under the Sales Order or any contract if and to the extent that the failure is due to a cause outside the control of Company, including, without limitation, labor difficulties, riots, fire, weather, casualty, accidents, acts of god, acts of terrorism, civil disorder, war, shortage of labor or materials, or governmental acts or restrictions. Upon the occurrence of any of the above events, Company may suspend or extend the time for delivery or cancel any open purchase orders without any resulting liability to Customer, but the Sales Order shall otherwise remain unaffected. Company may allocate its available supply of Products or materials among itself and its customers in its sole discretion and without liability to Customer, and Customer shall hold Company harmless for any losses or damages which Customer may incur as a result of such failure, delay, cancellation, or allocation by Company.
Compliance with Building Codes, Laws, Regulations, & Orders: The Products delivered to Customer shall comply with the published International Residential Code in effect at the time of manufacture. Customer understands and agrees that Customer is responsible for complying at all times with all other laws, ordinances, rules, building codes, requirements and regulations (including without limitation U.S. laws and regulations relating to customs, imports, exports, export controls, and foreign corrupt practices) applicable to the Products and when requested, shall furnish evidence to Company of such compliance.
Drawings/Technical Information: In the event that the Customer desires or requires engineered stamped shop drawings or any other drawings or technical information regarding the Products, Customer must request same at the time the Customer’s order is placed with Company. If available, such engineered stamped shop drawings and other drawings or technical information shall be provided to Customer for an additional fee.
Intellectual Property: Company owns all right, title and interest in and to its intellectual property created or developed by or on its behalf prior to the date Company first provided Products to Customer, whether under the Sales Order or otherwise, and all modifications, improvements and changes in or to and derivatives of any of the foregoing (“Pre-existing Intellectual Property”). Company shall exclusively own all materials, information, and intellectual property, including, but not limited to, artwork, designs, drawings, molds, dies, models, prototypes, products, and tools, incorporated into or used or created to produce the Products, and all modifications, improvements and changes in or to and derivatives of any of the foregoing (collectively, “Materials”). To the extent any Pre-existing Intellectual Property or any of the Materials is embodied in any of the Products, Company grants Customer a limited, non-exclusive, perpetual, world-wide license to use such Pre-existing Intellectual Property and Materials as embodied in the Products solely in connection with the use of the Products. No other rights or licenses in or to the Pre-existing Intellectual Property or Materials are granted to Customer.
Non-Disparagement: Customer shall not make false statements or speak negatively about Company, the Products, or Company’s employees, contractors, or agents. This includes oral and written statements as well as statements on any internet website, social media platform, or application.
Indemnity: In addition to all other rights and remedies available to Company at law or in equity, Customer assumes the entire responsibility and liability for and agrees to indemnify, defend, and hold harmless Company, its affiliates, and its and their members, managers, shareholders, officers, directors, agents, employees, subcontractors, successors, and assigns from and against any and all losses, expenses (including, without limitation, attorneys’ fees, other professionals’ fees, and court costs), costs, damages (including, without limitation, consequential, exemplary, and special damages), lost profits, demands, liabilities, suits, and claims in connection with or arising, directly or indirectly, out of: (a) a breach of the Sales Order by Customer; (b) any act, error, or omission, whether negligent or not, of Customer or its agents, employees, suppliers, subcontractors, or consultants, including, without limitation, any actual or alleged personal injury (including, without limitation, death) or damage or destruction to property of Company or other third parties (including, without limitation, loss of use); (c) any disputes with regard to the title or possession of any Products; and (d) any investigation or levied fines or penalties by any administrative or governmental agency as a result of the any act, error, or omission, whether negligent or not, of Customer or its agents, employees, suppliers, subcontractors, or consultants.
Attorneys’ Fees: In the event of a dispute between the parties with regard to or arising out of the Sales Order which results in litigation, the prevailing party shall have its attorneys’ fees, professionals’ fees, and costs paid by the losing party, and such sum may be added to any judgment entered in the litigation. A party’s right to the foregoing shall not merge with but shall survive the entry of judgment, and shall extend to appeals and collection.
Notices: Any notice or other communication required to be given under the Sales Order shall be in writing and shall be deemed to be sufficiently delivered if sent by: (a) hand delivery; (b) nationally recognized overnight carrier; or (c) certified mail, return receipt requested; to Company at 105 GP Clement Drive, Collegeville, PA 19426 and to Customer at the “Bill To” address on the Invoice. Such notice or communication shall be effective upon the earliest to occur of actual delivery, refusal by the recipient, or three (3) days after sending. Service of process may be made in accordance with this Section 22, and the parties waive their rights to service by any other means.
Entire Agreement: These Terms, together with the any quotation, work order, purchase order, invoice, or SOU accompanying or referring to these Terms or the Products, constitute the entire agreement between Company and Customer and supersede any and all prior agreements, whether oral, written or implied. No modification of these Terms shall be effective unless made in writing and executed by Company.
Assignment: Customer shall not assign, delegate, or otherwise transfer any of its rights or obligations under the Sales Order without the prior written approval of Company. Any such assignment, delegation, or transfer without Company‘s prior written consent shall be void. Company may assign, delegate, or transfer any and all of its rights and obligations under the Sales Order at any time and without prior written consent of Customer.
Severability: If one or more of the provisions of the Sales Order is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such provision shall be modified or amended to the extent necessary to remove the invalidity, illegality, or unenforceability. If the amendment or modification of such provision is impossible, the Sales Order shall be construed as if it never contained the invalid, illegal, or unenforceable provision, and such provision shall not affect any other provision of the Sales Order.
Governing Law: The Sales Order shall be construed and enforced exclusively in accordance with the substantive and procedural laws of the Commonwealth of Pennsylvania, without regard to principles of conflicts of law, and without regard to rules of construction relating to which party drafted the Sales Order. The Sales Order and the rights and obligations of the parties under the Sales Order shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sales of Goods or the United Nations Convention on the Limitation Period in the International Sales of Goods, as amended.
Exclusive Jurisdiction: Customer consents to the exclusive jurisdiction and venue of the courts of the Commonwealth of Pennsylvania, Montgomery County, and the United States District Court for the Eastern District of Pennsylvania with respect to the enforcement of the Sales Order or any matter arising out of the provision of Products to Customer by Company, and Customer waives any objections to such exclusive jurisdiction and venue, including objection as to an inconvenient forum.
Waiver: No claim or right arising out of a breach of the Sales Order by Customer may be discharged in whole or in part by a waiver of the claim or right, unless the waiver is in writing signed by an authorized representative of Company. Company’s waiver or acceptance of any breach by Customer of any provisions of the Sales Order shall not constitute a waiver of, or an excuse for, nonperformance as to any other provision nor as to any prior or subsequent breach of the same provision.
Waiver of Jury Trial: The parties expressly waive the right to a trial by jury in any action or proceeding brought relating to the Sales Order, the parties preferring that such dispute be resolved by a judge having jurisdiction with respect to such dispute.
Waiver of Subrogation: Whenever (a) any losses, expenses (including, without limitation, attorneys’ and other professionals’ fees and costs), costs, damages (including, without limitation, special, incidental, punitive and consequential damages and lost profits), demands, liabilities, suits and claims resulting from any casualty is incurred by Customer or by anyone claiming by, through or under Customer in connection with the Products, and (b) Customer is covered in whole or in part by any insurance that covers such loss, expenses, cost, damage, demand, liability, suit or claim, then Customer waives (on its own behalf and, to the extent enforceable, on behalf of its insurer) any rights of subrogation and any claims against Company and releases Company from any liability Customer may have on account of such loss, expenses, cost, damage, demand, liability, suit or claim.
Arbitration: Any and all disputes or claims arising out of these Terms or a Sales Order shall be resolved and determined solely and exclusively by arbitration, pursuant to the rules, then obtaining, of the American Arbitration Association, or any successor, at its office nearest Collegeville, Pennsylvania. The prevailing party in any arbitration shall be entitled to receive reasonable costs and reasonable attorney’s fees from the non-prevailing party. The Company shall select one arbitrator and Customer shall select one arbitrator and the two so selected shall select a third. The arbitrators shall be individuals skilled in the legal and business aspects of the subject matter of the Terms and/or Sales Order. Notice of the demand for arbitration shall be made in writing to the other party to this Agreement and to the American Arbitration Association. The demand shall be made within a reasonable time after the claim or dispute has arisen. In no event shall the demand for arbitration be made after the date when institution of legal or equitable proceedings based on the claim or dispute would be barred by the applicable statute of limitations. The arbitration award shall be final and binding upon the parties. Judgment upon the award shall be binding and may be entered in any court of competent jurisdiction.