General Terms & Conditions
These General Terms and Conditions apply to each order products (the “Products”) from Lennox Company (the “Company”).
1. Cancellation. (a) Upon acceptance by the Company, the order may not be canceled by Customer for any reason.
(b) The Company shall be entitled to cancel the order upon the delivery of written notice to Customer at any time prior to the delivery date specified in the order.
2. Shipping and Delivery. (a) The Company shall use commercially reasonable efforts to facilitate the delivery of the Products by ground transportation on or before the delivery date(s) specified in the order. The Products shall be delivered to FOB the delivery destination(s) specified in the order.
(b) If Customer has selected the drop shipping option in the order to direct the Company to ship and deliver Products directly to third parties selected by Customer (the “Recipients”), Customer is solely responsible for correctly entering Recipient shipping information, including all address details. The Company shall not be responsible for Products that are not delivered to the Recipients due to errors on the part of Customer. Customer shall be responsible for any additional shipping or delivery costs incurred as a result of any such errors.
(c) Title and risk of loss shall pass to Customer upon the ground transportation carrier’s retrieval of the Products from the Company’s location. After title and risk of loss have passed to Customer, Customer shall pursue any claims of freight loss, shortage or casualty damage directly with the applicable carrier. Customer acknowledges and agrees that the Company shall not be liable or otherwise responsible for freight loss, shortage or casualty damage caused by or attributable to the carrier. In addition, Customer is responsible for any loss, shortage or casualty damage to Products after the carrier executes delivery of the same to any Recipients.
(d) Customer acknowledges that the Company shall not be responsible for any delays with respect to international delivery destinations due to customs and Customer shall be solely responsible for the payment of any tariffs, duties or similar charges incurred in connection with international shipping.
3. Inspection; Acceptance; Returns. (a) Customer shall have the right to inspect and reject any non-conforming or defective Products upon the delivery of written notice to the Company within the 5-day period following receipt of the Products at the delivery destination(s). Customer shall promptly return all non-conforming or defective Products to the Company. Upon the Company’s receipt of the same, the Company shall replace, repair, credit or refund to Customer the applicable portion of the Purchase Price related thereto. Customer’s failure to deliver such written notice within such 5-day period shall constitute acceptance of the Products which acceptance shall be irrevocable.
4. Disclaimer of Warranties. EXCEPT AS OTHERWISE SET FORTH ELSEWHERE HEREIN, the Company makes no representations or warranties of any kind, whether express or implied, regarding the PRODUCTS or any other matter, including without limitation, the merchantability, suitability, originality, fitness for a particular use or purpose, and the Company hereby specifically disclaims the same. No trade usage or prior course of dealing shall be used in the interpretation or construction of the terms and conditions set forth herein. CUSTOMER ACKNOWLEDGES AND AGREES THAT: (a) THE CUSTOMIZED PRODUCTS ARE SOLD ON AN “AS IS” BASIS AND THERE ARE NO EXPRESS OR IMPLIED WARRANTIES CREATED BY A COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE RELATED TO THE SAME; AND (b) THE ACKNOWLEDGMENTS AND DISCLAIMERS OF WARRANTIES SET FORTH HEREIN ARE AN ESSENTIAL PART OF THE AGREEMENT BETWEEN THE PARTIES.
5. Limitation of Liability. (a) THE COMPANY’S LIABILITY ON ANY CLAIM RELATED TO THE PRODUCTS WHETHER IN NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY, OR FOR ANY OTHER TORT OR IN CONTRACT OR OTHERWISE, SHALL BE LIMITED TO THE RIGHT TO RETURN DEFECTIVE AND NON-CONFORMING PRODUCTS AS SET FORTH IN SECTION 7 ABOVE.
(b) IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER FORESEEABLE OR NOT, ARISING OUT OF, OR IN CONNECTION WITH, THE SALE OR USE OF THE PRODUCTS, INCLUDING WITHOUT LIMITATION, LOST PROFITS, even if THE COMPANY has been advised of the possibility of such damages. CUSTOMER acknowledges that SUPPLIER’S aggregate liability RELATED TO the order, whether such liability is asserted on the basis of contract, tort or otherwise, shall not exceed the PURCHASE PRICE.
6. Force majeure. Except for the obligation to pay money as set forth elsewhere herein, either party shall be excused from delays applicable to the performance of their respective obligations as set forth herein without incurring any liability for any loss or damage whatsoever resulting from it to the extent such performance is impeded, hindered or otherwise made impracticable as a result of the occurrence of acts of God or other natural disasters, war, terrorism, revolution, fire, labor unrest or unfavorable legal regulation of any kind.
7. Assignment. The order and all of the terms and conditions set forth herein shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Neither party shall assign the order nor assign or delegate any of the rights, interests or obligations set forth herein without the prior written consent of the other party, except that each party may, without the prior written consent of the other, assign its rights, interests or obligations hereunder in connection with any sale of substantially all of its assets or any merger with another entity. In addition, the Company may engage third party vendors to supply and deliver the Products.
8. Governing Law; Venue; Jurisdiction; Jury Trial Waiver. The order shall be governed by and construed in accordance with the laws of Colorado, including all matters of construction, validity and performance. The parties agree that any action or proceeding commenced under or with respect to the order shall be brought only in the district or county courts of Denver County, Colorado, and the parties irrevocably consent to the jurisdiction of such courts and waive any right to alter or change venue, including by removal. EACH PARTY HERETO WAIVES ITS OR THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY SUIT, CLAIM, CAUSE OF ACTION OR OTHER ACTION TO ENFORCE ANY TERM OR CONDITION OF THE ORDER OR OTHERWISE ARISING OUT OF OR RELATED TO THE ORDER.
9. Legal Expenses. In the event either party institutes any legal action to enforce or construe any provision of the order (including in any arbitration), the non-prevailing party shall pay to the prevailing party the reasonable costs and expenses (including legal fees) incurred by such prevailing party in connection therewith.
10. Entire Agreement; Severability; Waiver. The order, together with these terms and conditions, constitutes the entire agreement between the parties hereto concerning the matters covered herein and supersedes all prior agreements and/or understandings, between the parties, whether written or oral, concerning the matters addressed herein, and there are no understandings, agreements, representations or warranties, express or implied, which are not specified in writing and signed by the parties hereto. In the event that any of the terms of the order are or become illegal or unenforceable, such terms shall be null and void and shall be deemed deleted from the order and all the remaining terms of the order shall remain in full force and effect.