The following Terms and Conditions are attached to and incorporated by reference into a written or electronic price quote or an electronic or internet-based order confirmation (both of which are referred to herein as the “Quote”) issued or generated by Dickson Furniture Manufacturers, LLC, a Texas limited liability company (“Dickson”) to its customers. The Quote sets forth in detail items of goods (“Products”) and services (“Services”) Dickson manufactures and/or offers to sell or provide to its customers, as well as the quantity, price and terms of sale for the Products and Services. Upon receipt of the Quote from Dickson, the customer named therein (“Customer”) may accept the Quote within the time frame set forth in the Quote (unless revised or revoked by Dickson for any reason prior to acceptance) by either (a) signing the Quote by “wet ink” or electronic signature or other electronic means recognized by Dickson, or (b) approving the Quote through other electronic means established by Dickson, such as an ecommerce platform utilized by Dickson whereby Customer expressly approves the Quote by, for example, clicking the “YES” check box or the “I Agree” or “I Accept” button (any such signature or acceptance being referred to herein as “Customer Acceptance”). Upon Customer Acceptance of the Quote, the Quote shall become a binding contract between Dickson and Customer effective as of the date of Customer Acceptance (the “Effective Date”). Customer Acceptance of the Quote is deemed to include Customer’s agreement to all of these Terms and Conditions, and the Quote, together with all of the Terms and Conditions contained herein, are collectively referred to as “this Agreement”.
I. General Terms Applicable to All Transactions
II. Purchase Money Security Interest
III. Installation Services
I. GENERAL TERMS APPLICABLE TO ALL TRANSACTIONS
These Terms and Conditions are made a part of and shall govern the interpretation and enforcement of the Quote. Upon Customer Acceptance of the Quote and formation of this Agreement, Dickson agrees to sell and deliver to Customer the Products and Services and Customer agrees to purchase and pay for the Products and Services, all as set forth in the Quote and these Terms and Conditions.
Customer shall pay all amounts due as described in the Quote in the manner set forth in the Quote.
Dickson manufactures Products to order. Consequently, after Customer Acceptance, Customer may not cancel, revoke or postpone this Agreement for any reason. All sales are final. Except as expressly set forth herein, all deposits and payments made upon Customer Approval are non-refundable in the event that this Agreement is terminated for any reason or repudiated by Customer. Dickson reserves all rights and remedies in the event of Customer’s failure to comply with the terms of this Agreement. No exchanges or returns are permitted hereunder.
Any change to this Agreement requested by Customer shall not be effective unless and until accepted, in writing, by Dickson, which acceptance may be conditioned upon Customer’s payment of Dickson’s change order fee and other expenses relating to the requested change.
Unless another time is specified in the Quote, the prices for the Products and Services listed in the Quote are valid only if approved by Customer Acceptance within thirty (30) days after the Quote is provided
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by Dickson. Dickson reserves the right to change prices, dimensions and specifications without notice at any time prior to Customer Acceptance.
Dickson reserves the right to fully or partially revoke this Agreement in the event (a) a Product has been discontinued or will be unavailable for delivery in a reasonable time, or (b) Dickson discovers the Quote is based on pricing or product specification errors. In either such case, any amounts previously paid by Customer for a discontinued or unavailable Product will be fully refunded to Customer.
Customer shall pay (or, if applicable, on demand of Dickson, reimburse Dickson) for all taxes, duties and excises of any nature whatsoever now or hereafter levied by any governmental authority, whether federal, state or local, either directly or indirectly, upon the sale or transportation of any Products or Services.
All amounts due by Customer to Dickson shall be paid at the time required in the Quote. Dickson may invoice Customer for such amounts. A service charge of the lesser of 1 1/2% per month or the maximum permissible rate will be added to all accounts not paid within the agreed payment terms from the date of invoice.
Any completion and/or delivery dates included in the Quote are estimates only, and Dickson shall not be liable for any delay in completion, shipment or receipt of any Products or Services. Dickson shall not be liable for any delays in, inability to complete, or other default in any order for any reason or cause beyond Dickson’s reasonable control, including but not limited to government action, war, riots, civil commotion, embargoes, pandemic, martial laws, inability to obtain necessary materials from usual sources of supply, shortage of labor, raw material, production or transportation facilities or other delays in transit, labor difficulty, fire, flood or other casualty, or other contingencies of manufacture or shipment. In the event of any delay in Dickson’s performance due, in whole or in part, to any cause beyond its reasonable control, Dickson shall have such additional time for performance as may be reasonably necessary under the circumstances.
Color representations on computer terminals and screens can be different based on settings and various display technologies. Depictions, descriptions, samples and illustrations of Products on the Quote and Dickson’s website (a) are for informational purposes only, designed to be generally representative of the color, texture, fit, finish and overall appearance of such items and cannot be guaranteed as exact matches, and (b) shall not be construed or relied upon to create a representation or warranty or serve as the basis for any claim against Dickson. Fabric, lacquers, veneer and hardware may vary slightly or vary based on irregularities of manufacture, color, surface, finish, grain and texture.
The Products are subject to Dickson’s limited warranty terms and conditions in effect at the time any warranty claim is made. The terms and conditions of the limited warranty are available upon request, at which time they will be incorporated into this Agreement by this reference. THE DICKSON LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE. NO AFFIRMATION OF DICKSON, BY WORDS OR ACTIONS, OTHER THAN AS SET FORTH IN THE DICKSON LIMITED WARRANTY SHALL CONSTITUTE A WARRANTY.
Unless the Quote specifically provides that Dickson will ship the Products to Customer’s address, all Products are shipped F.O.B., point of shipment and risk of loss shall transfer to Customer upon tender of
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goods to Customer, Customers representative, or common carrier at Dickson’s facility. The cost of any special packing or special handling caused by Customer’s requirements or requests shall be added to the amount of the order. If Customer causes or requests a shipment delay, or if Dickson ships or delivers the Products erroneously as a result of inaccurate, incomplete or misleading information supplied by Customer or its agents or employees, storage and all other additional costs and risks shall be borne solely by Customer. Claims for Products damaged or lost in transit should be made by Customer to the carrier, as Dickson’s responsibility ceases upon tender of goods to Customer, Customer’s representative or common carrier. Should Customer fail to pick up the Products within 14 days after the Requested Ship Date on the quote and Dickson notifies Customer that the Products are completed and available to be received by Customer, Customer shall be obligated to pay to Dickson a warehousing/storage fee of $50 per trailer load equivalent (as determined by Dickson) per day, which will be billed to Customer weekly to be paid on receipt, or in any event as a condition to pick up.
If the Quote provides that Dickson will arrange to ship the Products to Customer’s address on the Quote, the shipment of the Products will be accompanied by a detailed packing list which will reference part numbers for the Products and the quantity shipped. Each unit of Product shall be properly and individually marked and packaged, as determined appropriate by Dickson. Customer shall ensure that it can receive the shipment at the appointed time. Customer shall sign for each shipment, and if any Product is damaged, such damage shall be noted by Customer on truck driver’s documents at the time of delivery and such document shall be signed by both Customer and driver. Regardless of damage, Products shall not be left on the delivery truck. Customer shall notify Dickson within three (3) business days after delivery of any Products which were damaged during delivery and provide Dickson with all available documentation substantiating any damages Products so that Dickson can quickly assess corrective steps to be taken. After the expiration of such time period, all Products will be deemed accepted, except as such notice in writing has been timely given. Acceptance by Customer of Products and Services shall constitute a waiver by Customer of any default or claim for damages on account of such Products.
If Customer postpones or fails to cooperate with Dickson’s delivery schedule for a period greater than 30 days from original targeted delivery date established by Dickson, Customer will be invoiced for the balance of the purchase price and such sum will be due immediately upon Customer’s receipt of the invoice. In addition, because Dickson will have to warehouse the Products until they are delivered, Customer shall be obligated to pay to Dickson a warehousing/storage fee of $100 per trailer (or portion thereof) per day, which will be billed to Customer weekly to be paid on receipt, or in any event as a condition to delivery.
If the Quote includes shipping of the Products by Dickson, Customer will nonetheless be responsible for all fuel surcharges, in-transit insurance, sales or other applicable taxes, duties, storage charges, crating, local delivery, uncrating and/or installation (unless installation is included as Services in the Quote).
Any delivery performed by Dickson is based on Dickson maximizing the Product contained in each trailer from its factory. Therefore, requests for Dickson to deliver in a partial or other specific manner (e.g. by floor or building) will result in additional freight charges to Customer.
Dickson makes no promise or representation that the Products will conform to any federal, state or local laws ordinances, regulations, codes or standards. Dickson shall not be responsible for any losses or damages sustained by Customer or any other person as a result of improper use or misapplication of the
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Products. Customer shall defend, indemnify and hold harmless Dickson and its agents and employees against any loss, damage, claim, suit, liability, judgment or expense (including, without limitation, attorney’s fees) arising out of or in connection with any injury, disease or death of persons (including, without limitation, Customers employees and agents) or damage to or loss of any property or the environment, or violation of any applicable laws or regulations resulting from or in connection with the sale, transportation, installation, use, or repair of the Products by Customer or of the information, designs, services or other work supplied to Customer, whether caused by the concurrent and/or contributory negligence of Customer, Dickson, or any of their agents, employees or suppliers. The obligations, indemnities and covenants contained in this paragraph shall survive the consummation or termination of this transaction.
Dickson shall not be liable to Customer or any third party for any indirect, special, incidental, punitive, cover, or consequential damages (including, but not limited to, damages for the inability to use Products or equipment, loss of business, loss of profits, business interruption, or the like), arising out of any transaction subject to these terms, and based on any theory of liability including breach of contract, breach of warranty, tort (including negligence), product liability, or otherwise, even if Dickson had or should have had any knowledge, actual or constructive, of the possibility of such damages and even if a remedy set forth herein is found to have failed of its essential purpose. Dickson’s total liability to Customer or any third party for actual damages for any cause whatsoever will be limited to those amounts actually paid by Customer for the Products or Services relating to the dispute at issue, as determined by a binding judicial decree taking in to account these terms. The foregoing limitations on liability are intended to apply to all aspects of these terms. The limitations on liability are fundamental elements of the basis of this Agreement.
Customer hereby agrees to indemnify, defend, and hold Dickson harmless from and against any and all claims, suits, causes, actions, liabilities, damages, expenses, legal fees, and obligations of any kind arising out of or from, either directly or indirectly, Customer’s breach of any provision, term, or condition of this Agreement or its use/misuse of the Products.
This Agreement is governed by and in accordance with the laws of the State of Texas, except for those provisions relating to Dickson’s purchase money security interest, which shall be governed by the laws of the state in which Customer is located, according to Article 9 of the Uniform Commercial Code. Any action or suit related to this Agreement shall be brought in the state courts of Harris County, Texas.
This Agreement constitutes the entire agreement between the Dickson and Customer. Failure by either party at any time to require performance by the other party or to claim a breach of any provision of this Agreement shall not be construed as affecting any subsequent breach of the right to require performance with respect thereto or to claim a breach with respect thereto. No waiver by Dickson of any breach by Customer of these Terms and Conditions shall be construed as a waiver of any other breach by Customer, and failure of Dickson to exercise any right arising from any default by Customer shall not be deemed a waiver of such right at any subsequent time. In the event that any one or more of these Terms and Conditions is held invalid, illegal or unenforceable, such provision or provisions shall be severed and the remaining terms and conditions shall remain binding and effective.
These Terms and Conditions shall also govern any other proposal which may be made by Dickson, regardless of whether or not such proposal is related or unrelated to the Quote.
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Customer represents and warrants to Dickson that (a) Customer is duly organized, validly existing and qualified and empowered to conduct its business and has full power and authority to enter into and fully perform and comply with the terms of these Terms and Conditions, and (b) the individual approving this Agreement, and any other instruments referenced herein on behalf of Customer has the legal power, right, and actual authority to bind Customer to the terms and conditions hereof and thereof.
All references in the Agreement or any other document relating to this Agreement to “Dickson” or “Dickson Furniture” or “Dickson Furniture Mfg, LLC” shall mean Dickson Furniture Manufacturers, LLC, a Texas limited liability company, and no other entity.
II. PURCHASE MONEY SECURITY AGREEMENT
The following terms and conditions apply only if the Quote provides that Customer does not pay 100% of the price of the Products and Services prior to their delivery (i.e., “CBD”) —
Customer, as debtor, hereby grants to Dickson, as secured party, a purchase money security interest (the “PMSI”) in all of the Products and any proceeds thereof as collateral to secure (a) the payment of the balance of the purchase price set forth in the Quote, and (b) the obligations of Customer under this Agreement, including, but not limited to the following obligations of Customer to Dickson specifically related to the PMSI:
• Customer agrees to execute all documents, perform all acts, do all things and pay all sums on Customer’s part to be executed, performed, done and paid pursuant to the terms and provisions of each and every of the covenants and agreements on its part made in these Terms and Conditions.
• Customer shall take any and all steps required to protect the Products until the expiration of this security agreement
• Customer will not allow the Products to be misused, wasted or allowed to deteriorate, except for the ordinary wear and tear of its intended use.
• Customer will ensure that the Products are, at all times, insured against loss, damage, theft, and such other risks as Dickson may require in such amounts, with such companies, under such policies, in such form and for such periods as shall be satisfactory to Dickson, and each such policy shall provide that the loss thereunder and the proceeds payable thereunder shall be payable to Dickson as its interest may appear, and Dickson may apply any proceeds of such insurance which may be received by Dickson toward the payment of the remaining balance of the purchase price for the Products and Services, in such order as Dickson shall determine; provided, however, so long as no event of default, as set forth in Section 3.4, has occurred and so long as any casualty does not in the reasonable opinion of Dickson substantially impair the prospects of the timely payment of the purchase price as set forth in the Quote, Customer may apply the proceeds to the repair, restoration, or replacement of the Products.
• Customer will keep the Products at the Customer’s premises to where they shipped, where Dickson may inspect them at any time.
• Customer will not use the Products in violation of any statute or ordinance.
• Customer will allow Dickson the opportunity to inspect the Products at any reasonable time by Dickson at any time, wherever located.
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• Customer shall take all steps necessary to protect the priority of the PMSI
• Customer will not sell, transfer, lease or otherwise dispose of any of the Products or any interest therein or offer to do so without the prior written consent of Dickson or permit anything to be done that may impair the value of any of the Products.
• Customer will pay promptly when due all taxes and assessments upon the Products or for their use or operation.
• Customer will sign and execute, alone or with Dickson, any financing statement, continuation statement or other document or procure any documents and pay all connected costs necessary to protect the security interest under these Terms and Conditions against the rights or interests of third persons.
• Customer will reimburse Dickson for all costs, including reasonable attorneys’ fees, incurred for any action taken by Dickson to remedy a default of Customer which Dickson elects pursuant to its rights.
Failure to pay installments of the purchase price for the Products and Services when due or the failure by Customer to duly observe any other covenant, condition, or agreement of this Agreement within ten (10) days after written notice by Dickson to Customer of such failure shall constitute an event of default under these Terms and Conditions. Upon the occurrence of any such event of default, Dickson may, at its option, declare all indebtedness secured hereby to be immediately due and payable without demand or notice of any kind whatsoever, and such indebtedness thereupon shall immediately become and be due and payable without demand or notice, but with such adjustments, if any, with respect to interest or other charges as may be provided for in this Agreement. Furthermore, upon such event of default, Dickson shall have available to it the following rights and remedies:
• So long as an event of default shall be continuing, Dickson may, at its option, discharge taxes, liens, security interests or other encumbrances at any time levied or placed on the Products which are superior to the security interest herein granted, may remedy or cure any default of Customer under the terms of any lease, rental agreement, or other document which in any way pertains to or affects Customer’s title to or interest in any of the Products, may pay for insurance on the Products, and may pay for the maintenance and preservation of the Products, and Customer agrees to reimburse Dickson, on demand, for any payment made of any expenses incurred by Dickson pursuant to the foregoing authorization, which payments and expenses shall be secured by the security intended to be afforded by these Terms and Conditions.
• Dickson shall have and may exercise any and all rights of enforcement and remedies afforded to Dickson under Article 9 of the Uniform Commercial Code, together with any and all other rights and remedies otherwise provided and available to Dickson by law, and, in conjunction with, in addition to, or substitution for those rights, at Dickson’s discretion, Dickson may enter upon Customer’s premises to take possession of, assemble and collect the Products or to render them or any portion of the Products unusable.
Customer agrees, affirms and warrants that (a) at the time Dickson’s security interest attached to any of the Products or their proceeds Customer will be the lawful owner with the right to transfer any interest therein, (b) no financing statement covering the Products or their proceeds is on file in any public
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office except for the filings in favor of the Dickson, and (c) except for the PMSI granted in this Agreement, there is no adverse lien, security interest or encumbrance in or on the Products.
To the extent permitted by law, the Customer authorizes and appoints Dickson to execute and file such financing statements, continuation statements, certificates, collateral agreements and other agreements, documents and instruments in its stead, with full power of substitution, as the Customer’s attorney in fact, coupled with an interest.
III. INSTALLATION SERVICES
The following terms and conditions apply only if the Quote includes installation Services provided by Dickson:
Unless noted otherwise in the Quote, installation provided hereunder shall be provided in a single phase (one trip) and shall substantially occur during daylight hours. Installation includes unload, set in place and set up once for each Product. Requests for Products to be moved once properly placed fall outside the scope of this Agreement, and such request will result in additional charges to Customer. Unless specified otherwise, units where Products will be installed shall be unoccupied, and existing furnishings or other materials will not be touched or moved to achieve delivery and installation. Removal of existing furniture or products is not included in the quoted installation price. The Quote has been prepared in reliance on the completeness and accuracy of a separate Site Assessment document which was provided by Customer to Dickson. Variance from the information contained in the Site Assessment at time of delivery may result in additional charges. Moreover, Customer’s non-compliance with any provisions in this Installation Services section of the Agreement may result in additional charges to Customer.
Not less than ninety (90) days prior to installation, Customer shall provide detailed information about the property that can either be used as installation sheets (furnishings required by unit number) or data that Dickson can use to develop such delivery sheets.
Electricity and air conditioning must be operational and available to all applicable units, and applicable units shall be unlocked and accessible at all times during execution of delivery and installation at the time of installation. All units will be accessible, substantially complete, and free of trades at time of delivery. Elevators will be accessible and dedicated for Product installation for a minimum of 6 working hours per day. Additionally, dumpsters or other reasonable trash receptacles shall be provided by Customer, at Customer’s sole expense.
Access by delivery trucks will be unhindered to and from truck to unit. Delivery and installation personnel will not be required to bring Products through unfinished outdoor areas (dirt, mud or holes) and route into building will be free from overhead work or workers.
Other than as required by law, no union restrictions/requirements or prevailing wage requirements will be permitted.
In the event Customer believes damages have occurred due to Dickson’s installation of Products, Customer shall identify and communicate such damage to a Dickson representative. Damages must be noted on sign off sheets and such sheets must be executed by Customer and a Dickson Employee. No
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damages shall be paid if communicated after Dickson installation team leaves the Customer’s installation location. Dickson’s liability for such damages is limited as provided in other portions of this Agreement.
Customer shall indemnify, defend and hold harmless Dickson from and against any and all claims, demands, losses, and damages incurred by Dickson arising out of or related to Dickson’s presence on Customer’s property and Dickson’s delivery of the installation services, except to the extent caused by Dickson’s gross negligence or intentional misconduct.
Upon completion, the Dickson installation supervisor will provide a sign off sheet covering all Products delivered and installed. Customer is responsible for review of work and timely completion of the sign off sheet within four (4) business days after the completion of installation. It is Customer’s responsibility to document all missing or damaged Products as well as any property damage attributed to the installation on the sign off sheets. If a customer representative is not available to perform the timely review of work and timely completion of sign off documentation, all Products will be deemed to have been installed correctly and with no damage to property.