Loll Designs, Inc.’s Terms and Conditions of Sale
Last updated on November 17, 2015. Replacing any earlier versions.
We have recently become aware of class action suits and threats of suits against internet retailers alleging that certain Terms and Conditions violate the New Jersey Truth-In-Consumer Contract, Warranty and Notice Act (TCCWNA). While we review the issues raised by this litigation, the following provisions shall not apply to any consumer residing in or visiting our website from New Jersey:
- Paragraph 12: The limitation of liability for damages arising from negligence or other tort claims does not apply to claims of personal injury or wrongful death;
- Paragraph 19: The indemnification clause requiring Buyer to defend, indemnity and hold Loll Designs harmless from claims arising from Buyers’s acts or omissions shall not apply to New Jersey customers, but Loll Designs does not waive any other claim or defense that may arise out of the Buyer’s acts or omissions.
– July 12, 2016
1.APPLICABILITY These Terms and Conditions of Sale (“Terms”) shall govern any sale by LOLL DESIGNS, INC., its successors or assigns (“Loll”) to the buyer identified in Loll’s Pro Forma Invoice, Order Confirmation or web cart linked at www.lolldesigns.com (“Buyer”). All provisions on Buyer’s purchase order and on all other documents submitted by Buyer are expressly rejected. Buyer’s order for, its acceptance or use of Loll’s products and/or services (collectively referred to as “Products”) is expressly conditioned on Buyer’s acceptance of these Terms. Buyer’s acceptance is limited to these Terms, and no different, inconsistent and/or additional terms and conditions submitted by Buyer in acknowledging or accepting these Terms or in issuing any purchase orders or documents in connection with the Products, whether prior or subsequent, shall modify or amend these Terms or be valid or binding against Loll, unless specifically accepted by Loll in writing. In the event of any conflict, discrepancy or inconsistency between these Terms and the terms contained in any document submitted by Buyer, these Terms shall govern even if Buyer’s document expressly limits acceptance to Buyer’s terms and conditions.
2. PRICE AND PAYMENT Prices for each Product are stated in U.S. Dollars. Loll reserves the right to correct any inaccurate invoices or errors in previously communicated prices. Unless specified otherwise in writing by Loll, Buyer shall make payment in full, including payment of all costs, taxes and charges set forth in Section 16, prior to delivery pursuant to Section 4 or Section 5, as applicable. Unless Loll has agreed to credit terms in writing, payment shall be made in advance and by cash, cashier’s check, credit card, wire transfer or irrevocable letter of credit in a form acceptable to Loll. All payments due from Buyer shall be made without any set-off or deductions for any reason whatsoever. If payment is more than thirty (30) days past due, Loll may, without affecting any other rights or remedies, suspend delivery, cancel orders, or charge a late payment fee at the rate of one and a half percent (1.5%) per month or such lesser amount as is the maximum rate of interest allowed by law. Buyer shall pay any and all reasonable costs, including attorneys’ fees, incurred by Loll in collecting any delinquent balance.
3. WEB SITE SALES For Products purchased through Loll’s Web Site at www.lolldesigns.com the FAQ section of the Loll Web Site (lolldesigns.com/faq) governs. To the extent that any provisions of the FAQ section are inconsistent with these Terms, the Terms shall prevail. These Terms shall fill gaps and shall supplement the provisions of the FAQ section where the FAQ provisions are silent.
4. DELIVERY AND RISK OF LOSS Unless specified otherwise in writing by Loll in its Pro Forma Invoice, delivery terms are EX WORKS Incoterms® 2010, Loll’s premises at 5912 Waseca Street, Duluth, MN 55807, USA. Buyer shall schedule and pay for carriage. Risk of loss of or damage to the Products shall pass to Buyer upon delivery. If shipment arrangements are made pursuant to Section 5 risk of loss of or damage to the Products shall pass to Buyer upon delivery to the carrier. If Loll assists in the process of loading the Products on the departing vehicle at Loll’s facility, Buyer shall defend, indemnify and hold Loll harmless from all losses, damages, claims, actions, liabilities, costs, expenses (including reasonable attorneys’ fees), judgment and adjudication whatsoever, whether threatened, pending or completed, whether groundless or otherwise, wherever brought, relating thereto. Loll shall notify Buyer when the Products are ready for delivery. If the Products are not collected by or on behalf of Buyer within fourteen (14) calendar days of the date of such notification, Buyer shall be liable for storage charges thereafter at such rate as shall be determined by Loll and for all costs and expenses, including reasonable attorneys’ fees, incurred by Loll as a consequence of the failure to take delivery.
5. LOLL’S SHIPMENT ARRANGEMENTS If Loll agrees in writing to arrange for shipment of the Products at Buyer’s risk and expense, Buyer shall accept deliveries at Loll’s address and shall be liable for any additional costs suffered by Loll in the event of wrongful refusal or delay in accepting delivery, in failing to provide premises, services or information for Loll to effect safe delivery, or in the event of future deliveries being withheld through Buyer’s non-payment. If Loll has the Products delivered to Buyer’s premises, Buyer shall unload the Products. Any time or date specified for delivery is given in good faith as an estimate only and Loll shall not be liable for any direct or indirect loss, damage or expense howsoever arising from any delay in delivery. Loll may deliver by installments and may treat each delivery as a separate contract.
6. DELIVERY AND TITLE Title to the Products shall pass to Buyer at Loll’s premises, immediately upon delivery to the carrier, subject to Loll’s security interest in the Products as described below. Until full title to the Products has passed to Buyer, Buyer shall not: (a) pledge or encumber the Products or documents thereon or allow any lien to arise thereon; or (b) deal with, sell or dispose of the Products or any interest therein.
7. DEFAULT The occurrence of any one or more of the following events shall constitute an “Event of Default” by Buyer: a) Buyer is delinquent in its payment obligation to Loll; b) Buyer fails to perform or comply with any covenant or obligation set forth in these Terms, or any other agreement between Buyer and Loll now in force or hereafter entered into; c) a resolution is passed or a court order made resolving or ordering Buyer to be placed into liquidation or ordering that an administrator be appointed over all or any of its assets; d) Buyer becomes insolvent and/or makes an assignment for the benefit of creditors. “Insolvency” shall include, but shall not be limited to, the inability of Buyer to pay its debts as they become due, or the circumstance where the amount of the liabilities exceeds the book value of the assets; e) a receiver is appointed over all or any of the assets of Buyer; or f) Buyer has a petition in bankruptcy entered against or by it. Upon the occurrence of any Event of Default as set forth herein, Loll, at its option, may: (i) declare Buyer’s performance in breach and cancel and commence proceedings for all amounts due hereunder; (ii) repossess Products for which payment has not been made and enter Buyer’s premises to remove the Products; (iii) withhold performance, including, but not limited to, future shipments until all delinquent amounts and late interest, if any, are paid; (iv) charge interest on delinquent amounts at the maximum rate permitted by law; (v) charge storage or inventory carrying fees on Products; (vi) recover all costs of collection including, without limitation, reasonable attorneys’ fees; (vii) if Buyer is delinquent on a payment schedule, accelerate all remaining payments and declare the total outstanding balance immediately due and payable; or (viii) combine any of the above rights and remedies as may be permitted by applicable law. The above remedies are in addition to all other remedies available at law or in equity. Failure by Loll to exercise any remedy shall not constitute a waiver of other remedies or other rights to exercise any such remedy in the event of any subsequent Event of Default. Buyer shall grant to Loll a first priority, purchase money security interest in the Products and all proceeds therefrom and Buyer shall execute any documents necessary to permit and perfect such security interest. Loll shall possess all the rights of a secured party under the Uniform Commercial Code (UCC) and Buyer authorizes Loll to file a UCC financing statement to perfect this security interest at any time. Where Buyer is situated outside the USA, Loll shall be entitled to all remedies set forth herein if any event occurs which is analogous to an Event of Default.
8. LIMITED WARRANTY AND DISCLAIMER A non-transferable 5 year* Limited Warranty is provided by Loll only to the original Buyer of Products, effective on shipment. Loll strives to build long-term relationships based on confidence and trust with its customers. We at Loll sit beside, on top, and beneath the quality of our fine LOLL® furniture and accessories and will make things right if you are not completely satisfied with your purchase. Loll hereby guarantees that its products will be of good quality and workmanship, free from faults and defects subject to the limitations set forth herein.
What Does This Warranty Cover? This warranty covers any defects or malfunctions in your new LOLL® furniture and accessories subject to the limitations set forth herein.
How Long Does the Coverage Last? This warranty lasts for five years* from the date of shipment. *For commercial applications the warranty is three years from the date of shipment.
What will Loll Do? Loll will repair or, at its option, replace any defective LOLL® furniture, accessories or components at no charge.
What Does This Warranty Not Cover? Discoloration due to sun exposure or any problem that is caused by abuse, misuse or acts of nature is not covered under this warranty. Loll’s repair or replacement is the exclusive remedy available from Loll, and Loll is not responsible for damages of any kind in contract or in tort, including INCIDENTAL AND CONSEQUENTIAL DAMAGES resulting from any breach of warranty. EXCEPT FOR THE LIMITED WARRANTY DESCRIBED HEREIN, LOLL SPECIFICALLY DISCLAIMS AND EXCLUDES ANY AND ALL EXPRESS AND IMPLIED WARRANTIES WITH REGARD TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE OR ANY OTHER MATTER. Five years (three years for commercial applications) from the date of shipment, Loll will replace any defective part, with the cost of shipping and labor associated with any repair or replacement to be paid by Buyer. Repair or replacement is not warranted beyond the original warranty period of the original defective product or component.
How Does State Law Relate to This Warranty? This warranty gives you specific legal rights, and you may also have other rights, which vary from state to state. Some states do not allow the exclusion or limitation of incidental or consequential damages, and some states do not allow limitations on how long an implied warranty lasts, so the limitations and exclusions stated herein may not apply to you.
9. INSPECTION Buyer shall inspect, or provide for inspection, at Loll’s facility only. Buyer’s inspection shall not interfere with Loll’s operations, and Buyer shall approve or reject before delivery. If Loll reasonably determines that rejection was improper, Buyer shall be responsible for all costs and expenses caused by the improper rejection, including but not limited to loss of profit.
10. EXCUSABLE DELAY OR NONPERFORMANCE Loll shall not be liable for any failure to meet its obligations due to any cause beyond its reasonable control including, but not limited to: government embargoes or any other government acts that interfere with performance; blockades; seizure or freeze of assets; delays or refusals to grant an export license or the suspension or revocation thereof; fires, floods, severe weather terms; quarantines or regional medical crisis; labor strikes or lockouts; riots, civil disobedience, armed conflict, terrorism or war, declared or not or impending threat of any of the foregoing; production delays and shortages or inability to obtain materials or components. The due date of any performance affected by such an event shall be extended by the period of time that Loll is actually delayed. If the inability to perform continues for longer than six (6) months, either party shall have the right to terminate the affected agreement by providing written notice to the other party.
11. APPLICABLE LAW These Terms shall be governed by the laws of the State of Minnesota, U.S.A. without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods, 1980, and any successor thereto, shall not apply. Any suit must be brought in a state or federal court sitting in Minnesota, U.S.A., and Buyer irrevocably accepts the jurisdiction of such courts and consents to service of process by registered or certified mail at the address provided by Buyer. THE PARTIES IRREVOCABLY AND KNOWINGLY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS OR THE PRODUCTS. NEITHER PARTY SHALL BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE.
12. LIMITATION OF REMEDIES IN NO EVENT SHALL LOLL BE LIABLE TO BUYER (OR ANYONE CLAIMING THROUGH BUYER) FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES, LOSS OF ANTICIPATED PROFIT OR OTHER ECONOMIC LOSS OR FOR ANY OTHER DAMAGES OR REMEDIES EVEN IF INFORMED OF THE POSSIBILITY OF SUCH, AND BUYER HEREBY EXPRESSLY WAIVES SUCH DAMAGES OR REMEDIES. THE PARTIES EXPRESSLY AGREE THAT THE LIMITATIONS TO INCIDENTAL, CONSEQUENTIAL, SPECIAL, AND INDIRECT DAMAGES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SHALL SURVIVE THE DETERMINATION OF ANY COURT OF COMPETENT JURISDICTION THAT ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPORSE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS AND EXCLUSIONS SHALL APPLY REGARDLESS OF WHETHER LIABILITY ARISES FROM BREACH OF CONTRACT, NEGLIGENCE OR OTHER TORT, BY OPERATION OF LAW, OR OTHERWISE. UNDER NO CIRCUMSTANCES SHALL LOLL’S LIABILITY HEREUNDER FOR ANY CAUSE EXCEED THE PURCHASE PRICE PAID BY BUYER FOR THE PRODUCTS.
13. IMPORT/EXPORT Where applicable, Buyer shall obtain, at its own risk and expense, any export and import license or other official authorization and carry out all customs formalities for the export of the Products. Loll shall not be liable to Buyer for any failure to provide Products as a result of government actions which impact Loll’s ability to perform, including: (a) any subsequent interpretation of any applicable import, transfer or export law or regulation, after the date of any order or commitment, that has a material adverse effect on Loll’s performance; or (b) delays due to Buyer’s failure to follow applicable export or import laws and regulations.
14. EXPORT CONTROLS Buyer understands that certain transactions are subject to export control laws and regulations, including but not limited to the UN, EU and the USA export control laws and regulations (“Export Regulations”), which prohibit export or diversion of certain products and technology to certain countries. Buyer warrants that it will comply in all respects with the export, re-export and transfer restrictions set forth in such Export Regulations for all Products. Buyer shall impose all export control restrictions to any third party if the Products are transferred to third parties. Buyer shall take all actions that are reasonably necessary to ensure that no customer or end-user violates such Export Regulations.
15. ANTI BRIBERY Buyer shall comply with national law on prevention of bribery, and any other law transforming from ratification of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (including the US Foreign Corrupt Practices Act). In general, the law makes it illegal to bribe or make a corrupt payment to a public official for the purpose of obtaining or retaining business, directing business to any person, or securing any improper advantage.
16. COSTS, TAXES AND CHARGES Buyer shall pay prior to delivery: (a) all delivery and shipment costs and all insurance charges relating to the same; (b) all customs duties, fees of export or import licenses, import deposits, assessments, sales, use, value added, excise, goods and services, federal, state, local or other taxes or charges; (c) any costs or fees associated with the method of payment; and, (d) any additional charges for any special routing, packing, labelling, handling, insurance or other request from Buyer.
17. RETURNS Buyer must obtain prior written authorization from Loll in order to return Products to Loll and Buyer must pay all shipping and other costs and expenses in connection with any such return of Products, unless, as reasonably determined by Loll, it shipped Products in error. At Loll’s option, returns of Products may be subject to restocking charges. Buyer shall not return any Products without first obtaining a Returned Material Authorization (RMA) number from Loll. Loll may revise and discontinue Products at any time without notice. Loll will ship Products that have the functionality and performance of the Products ordered, but changes between what is delivered and described in a specification are possible.
18. NOTICES Notices shall be in writing and shall be sent to the company/person and address as identified by the respective parties. Notices shall be (a) delivered by hand; (b) sent by email; or, (c) sent by receipted courier service. Notices shall be effective: (i) when received, if delivered by hand or sent by receipted courier service; (ii) when sent, if sent by email if delivery by email sent no later than 4:00 PM (receiver’s time) on a business day; (iii) the next business day if sent by email on a non-business day or after 4:00 PM (receiver’s time) on a business day.
19. INDEMNIFICATION Buyer shall defend, indemnify and hold Loll harmless from any and all claims, demands, losses, damage, liability, cost, expense (including reasonable attorneys’ fees), suit, judgment, and adjudication whatsoever, whether threatened, pending or completed, whether groundless or otherwise, wherever brought, which Loll may incur or suffer as a result of or in relation to any claim of any kind arising out of any act or omission by Buyer or any of Buyer’s agents or employees which (a) violates these Terms; or (b) results from Buyer’s negligent or willful acts. Upon Loll’s tender of defense to Buyer, and Buyer’s refusal to defend Loll, Loll shall be authorized to obtain independent counsel of its own choice, and Buyer shall be required to reimburse Loll for all costs and expenses, including reasonable attorneys’ fees, relating to Loll’s defense. Loll shall have the right to pay, settle or compromise any claim, demand, and other damage item of the character set forth in this Section, and the voucher or other evidence of such payment shall be prima facie evidence of the proprietary nature thereof, and of Buyer’s liability therefore to Loll.
20. INTELLECTUAL PROPERTY Buyer is not granted any rights to use Loll Intellectual Property (defined below) unless specifically authorized by Loll In writing. All right, title and interest in and to all know-how, trade secrets, trade names, trade marks, service marks, copyrights, patents, domain names and other intellectual property rights associated with the Products (“Loll Intellectual Property”), and the goodwill associated therewith belong solely to Loll and no right, title or interest in Loll Intellectual Property is transferred to Buyer. Buyer shall not register or otherwise seek to record rights in Loll Intellectual Property or other intellectual property based on or substantially similar to Loll Intellectual Property.
21. GENERAL PROVISIONS Assignment/Relationship. Buyer shall not assign or otherwise transfer any of its rights or obligations hereunder without Loll’s prior written consent. The parties are independent contractors. Waiver. Failure of Loll to enforce at any time any of the provisions of these Terms shall not be construed to be a continuing waiver of any provisions nor shall any such failure prejudice the right of Loll to take any action in the future to enforce any provisions there under. Severability. If any provision of these Terms is determined to be illegal, invalid, or unenforceable by a court of competent jurisdiction, then the validity and enforceability of the remaining provisions shall not be affected and, in lieu of such illegal, invalid, or unenforceable provision, there shall be added as part of these Terms one or more provisions as similar in terms as may be legal, valid and enforceable under applicable law. Survival. All rights, duties and obligations, which by nature should apply beyond the term hereof, shall remain in force after the acceptance and complete performance thereof. Entire Agreement. These Terms contain the entire agreement between Buyer and Loll with respect to the sale and purchase of the Products and supersede all prior or contemporaneous agreements and understandings (whether written, verbal or implied) of the parties with respect thereto. These Terms may be amended or modified by an authorized representative of Loll at any time.