TERMS AND CONDITIONS FOR THE SALE OF GOODS OFFERED BY

Birds in the Wood, LLC

1. DEFINITIONS

    In this document the following words shall have the following meanings:

    • “Buyer” means the organization or person who buys Goods from the Seller;
    • “Goods” means the articles to be supplied to the Buyer by the Seller;
    • “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable;
    • “Seller” means Birds in the Wood, LLC located at 5155 Crookshank Rd, Cincinnati, OH 45238;
    • “List Price” means a fixed price for certain Goods that is maintained by the Seller on the Birds in the Wood, LLC website. Products that can be purchased on the Birds in the Wood website using the website shopping cart shall all have a List Price.;
    • “Date of Issue” means the calendar date that appears on an invoice or sales quote document the Seller offers to the Buyer.;
    • “Quoted Price” means the price that is offered to the Buyer by the Seller for personalized or otherwise customized Goods. These Goods are manufactured by the Seller with respect to acceptance criteria agreed in writing between the Buyer and the Seller. The Quoted Price is offered in writing to the Buyer in response to dialogue that begins when the Buyer provides an expression of interest in the Seller’s Goods and concludes when Buyer receives a written quote from the Seller. The quote shall include the Quoted Price for the Goods for which the Buyer previously expressed interest.;
    • “US” means United States of America;
    • “Sales Agreement” is the contract that is formed between Buyer and Seller when either of the following scenarios occur:
        1.1. A Buyer places an order for a product offered on the Seller website and using the shopping cart feature on the site. The Seller accepts the order. Or,
        1.2. The Buyer requests and receives a written price quote from the Seller for a product where the Buyer has previously expressed interest in writing. The Buyer then offers written acceptance for the Seller’s quote.

2. GENERAL

  • These Terms and Conditions shall apply to all sales of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions referred to, offered or relied on by the Buyer whether in negotiation or at any stage in the dealings between the parties, including any standard or printed terms tendered by the Buyer, unless the Buyer specifically states in writing, separately from such terms, that it wishes such terms to apply and this has been acknowledged by the Seller in writing.
  • Any variation to these Terms and Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller.

3. PRICE AND PAYMENT

  • The price shall be either the Seller’s current List Price, or a Quoted Price offered in writing by the Seller, or such other price as the parties may each agree in writing.
  • The price is exclusive of applicable sales taxes and shipping costs, which must be paid for by the Buyer unless otherwise agreed in writing by the Seller.
  • Payment of the price, sales taxes and any other applicable costs shall become due on the “Payment Due Date” found on the sales invoice document that is provided by the Seller to the Buyer for the Goods being sold to the Buyer.
  • Unless otherwise described by the Seller in written form, the Buyer has 30 calendar days from the Date of Issue on a sales quote to accept the Seller’s Quoted Price. If the Buyer fails to accept the quote in this time period, the sales quote shall be considered null and void.
  • If payment of the price or any part thereof is not made by the due date, the Seller shall be entitled to:
      • 3.1. require payment in advance of delivery in relation to any Goods not previously delivered;
      3.2. refuse to make delivery of any undelivered Goods whether included on the detailed invoice or not and without incurring any liability whatever to the Buyer for non-delivery or any delay in delivery;
      3.3. terminate the Sales Agreement with the Buyer

4. DESCRIPTION

    Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby affirms that it does not in any way rely on any description when entering into the Sales Agreement.

5. SAMPLE

    Where a sample of the Goods is shown to and inspected by the Buyer, the parties hereto accept that such a sample is so shown and inspected for the sole purpose of enabling the Buyer to judge for itself the quality of the Good(s) in the Sales Agreement, and not so as to constitute a sale by sample.

6. DELIVERY

  • Unless otherwise agreed in writing, delivery of the Goods shall take place at the Seller’s address, which is 5155 Crookshank Rd, Cincinnati, OH 45233. There will be no shipping costs for Goods picked up by the Buyer at this address.
  • In lieu of pickup at the Seller’s address, the Buyer may agree to accept a delivery method and service provider offered by the Seller. Buyer agrees to pay to the Seller all shipping costs for the accepted delivery method and service provider.
  • The date of delivery specified by the Seller is an estimate only. Time for delivery is agreed not to be part of the Buyer and Seller Sales Agreement. Adherence to delivery dates and times are solely the responsibility of the delivery service provider.
  • If the Seller is unable to deliver the Goods due to Buyer circumstance, then the Seller shall be entitled to place the Goods in storage until such times as delivery may become viable. The Buyer shall be liable for any expense associated with such storage.
  • The Buyer shall be entitled to replacement Goods where the Goods have been damaged during transportation. The Buyer must notify the Seller of the damage within 24 hours of delivery.

7. RISK

    Risk in the Goods shall pass to the Buyer at the moment the Goods are dispatched from the Seller`s premises. Where the Buyer chooses to collect the Goods itself, risk will pass when the Goods are entrusted to it or set aside for its collection, whichever happens first.

8. TITLE

    Title in the Goods shall not pass to the Buyer until the Seller has been paid in full for the Goods.

9. WARRANTY

  • Where the Goods have been manufactured by the Seller and are found to be defective, the Seller shall repair, or in its sole discretion, replace defective Goods free of charge within 30 calendar days from the date of delivery, subject to the following conditions:
      • 9.1 the Buyer notifying the Seller in writing immediately upon the defect becoming apparent;
      9.2 the defect being due to the faulty design, materials or workmanship of the Seller.
  • Any Goods to be repaired or replaced shall be returned to the Seller at the Buyer’s expense, if so requested by the Seller.
  • Where the Goods have been manufactured and supplied to the Seller by a third party, any warranty granted to the Seller in respect of the Goods shall be passed on to the Buyer.

  • The Seller shall be entitled in its absolute discretion to refund the price of the defective Goods in the event that such price has already been paid.

  • The remedies contained in this Clause are without prejudice to the other Terms and Conditions herein, including, but without limitation, Clauses 10 and 11 below.

10. LIABILITY

  • No liability of any nature shall be incurred or accepted by the Seller in respect of any representation made by the Seller to the Buyer, or to any party acting on its behalf:
      • 10.1 the correspondence of the Goods with any description;
      10.2 the quality of the Goods; or
      10.3 the fitness of the Goods for any purpose whatsoever.
  • No liability of any nature shall be accepted by the Seller to the Buyer in respect of any express term of the Sales Agreement where such term relates in any way to:
      • 10.4 the correspondence of the Goods with any description;
      10.5 the quality of the Goods; or
      10.6 the fitness of the Goods for any purpose whatsoever.
  • All implied terms, conditions or warranties as to the correspondence of the Goods to any description or the satisfactory quality of the Goods or the fitness of the Goods for any purpose whatsoever (whether made known to the Seller or not) are hereby excluded from the Sales Agreement.

11. LIMITATION OF LIABILITY

  • Where any court or arbitrator determines that any part of Clause 10 above is, for whatever reason, unenforceable, the Seller shall be liable for all loss or damage suffered by the Buyer up to but not exceeding the purchase price for the delivered Goods.
  • Nothing contained in these Terms and Conditions shall be construed so as to limit or exclude the liability of the Seller for death or personal injury as a result of the Seller’s negligence or that of its employees or agents.

12. INTELLECTUAL PROPERTY RIGHTS

    All Intellectual Property Rights produced from or arising as a result of the performance of the Sales Agreement shall, so far as not already vested, become the absolute property of the Seller, and the Buyer shall do all that is reasonably necessary to ensure that such rights vest in the Seller by the execution of appropriate instruments or the making of agreements with third parties.

13. FORCE MAJEURE

    The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may, without liability on its part, terminate the Sales Agreement.

14. RELATIONSHIP OF PARTIES

    Nothing contained in these Terms and Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Terms and Conditions shall be deemed to construe either of the parties as the agent of the other.

15. ASSIGNMENT AND SUB-CONTRACTING

    The Sales Agreement between the Buyer and Seller for the sale of Goods shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by the Buyer, without the prior written consent of the Seller.

16. WAIVER

    The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.

17. SEVERABILITY

    If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.

18. GOVERNING LAW AND JURISDICTION

    All Sales Agreements and activities on the Birds in the Wood website shall be governed by and construed in accordance with the federal, state and local laws of the United States of America (“US”). All parties hereby submit to the exclusive jurisdiction of the applicable US courts.