terms + conditions for purchases

terms + conditions governing offline orders + purchases

These terms and conditions (the “Terms and Conditions”) shall govern all orders placed by, and all items purchased by, a customer (herein referred to as “you” or the “Buyer”) with Ashley Botten Design Inc., c/o/b as “ABD”, (herein referred to as “us”, “ABD”, and the “Seller”) through any manner or medium, including, without limitation, online sales, phone orders or on-site retail sales. By placing an order or purchasing a product with ABD, you agree to abide by these Terms and Conditions. ABD reserves the right to update or modify these Terms and Conditions at any time without prior notice or the consent of Buyer, provided that such changes to no materially impact the nature or scope of the Customer Order. For this reason, we encourage you to review these Terms and Conditions whenever you place an order or purchase products from us.

The accompanying Customer Order and these Terms and Conditions compromises the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.

section 1.
custom orders

In these Terms and Conditions, a “Custom Order” includes a special, custom or made-to-order product, and a “Buyer’s Representative” includes the Buyer’s architect or designer or other agent, as indicated in the Custom Order, or as the Buyer advises the Seller in writing, once designated the Seller is entitled to rely on the Buyer’s Representative.

(a) Orders

Custom Orders must be submitted with a deposit equal to eighty (80%) per cent of the invoiced amount of the Custom Order, and once submitted, cannot be changed, cancelled or returned by the Buyer, except as specifically noted in these Terms and Conditions. No exceptions will be made. Custom Orders will not be processed by the Seller without receipt by the Seller of the deposit.

Note that Custom Orders may be changed, and are not final, by ABD, until ABD has received the following: (1) 80% deposit; (2) final sign-off on drawings or specifications of the item by the Buyer or the Buyer’s Representative; and (3) confirmation and receipt of (“COM”) customer’s own material by the Buyer or the Buyer’s manufacturer.

(b) Payment

Custom Orders must be submitted with a deposit equal to eighty (80%) percent of the invoiced amount of the Custom Order. The Seller will issue a final invoice to the Buyer for the remaining balance (being the remaining 20% of the invoiced amount of the Custom Order, plus any taxes or fees incurred by the Seller, including shipping), once the Custom Order is complete but prior to delivery. The final invoice must be paid in full prior to delivery and Buyer shall make all payments in Canadian Dollars (Or relevant currency). Should any amounts remaining unpaid following the thirty (30) day period, (a) such balance will be subject to an interest fee of sixteen (16%) percent per annum, or the highest rate permissible under applicable law, calculated and charged monthly; and (b) the Seller will charge storage fees for such Custom Order as set out in Section 5(c) hereof. The Buyer shall be responsible for any and all above-noted storage fees. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.

(c) Cancellation of Custom Orders

A Custom Order may be cancelled, and any deposit received will be fully refunded, within 24 hours of submitting a Custom Order. Custom Orders may be cancelled, but any deposit paid will be forfeited, after 24 hours and up to 7 days following the order. Custom Orders cannot be cancelled 7 days after submission of the order, and if the Buyer attempts to do so, the Seller may immediately issue the final invoice to the Buyer and full payment will be due and payable within 30 days of receipt.

(d) Return of Custom Orders

Custom Orders may not be returned or exchanged.

section 2.
general payment terms

The Seller accepts all major credit, debit cards, online bill payment options, wire transfers and cheques. However, wire transfers and online bill payments options, are the preferred methods. Orders placed by cheque are subject to wait time associated with bank clearance. Any bank charges associated with wire transfers or online bill payment methods and exchange fees will be billed to the Buyer and shall be the sole responsibility of the Buyer. Product pricing and inventory availability are subject to change without notice, prior to placement of order. The Seller does not offer financing on any of its merchandise.

Credit card payments will be conducted through our third party payment processor, currently STRIPE. STRIPE is fully PCI-DSS compliant.

ABD is not responsible and does not control the actions of STRIPE and is not liable for activities carried on by STRIPE.

section 3.
performance of services

With respect to any services under a Customer Order, the Buyer shall: (i) cooperate with Seller in all matters relating to the services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing the services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Seller to perform services in accordance with the requirements of the Customer Order; (iii) provide such customer materials or information as Seller may request to carry out the services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the services before the date on which the services are to start.

Seller shall use reasonable efforts to meet any performance dates to render the services specified in the Customer Order, and any such dates shall be estimates only.

section 4.
taxes + duties

All orders are subject to applicable taxes, and any duties, as dependent upon the final destination of the goods. Buyer shall comply with all federal, provincial, state and local regulations, as applicable, and pay fees and taxes associated with any applicable tariffs, duties, customs, border and brokerage fees and or any fees associated with such jurisdiction.

section 5.
shipment

The Seller and its suppliers/manufacturers will make all arrangement with respect to the handling of all order shipments, unless the Buyer specifies in writing their preferred shipping method and is willing to accept any increased costs, and all liability, associated with such shipping method (including relevant insurance for the goods). Any shipments returned to the manufacturer or the Seller as a result of Buyer’s delay, or failure to accept delivery, will require the Buyer to pay additional fees, including, without limitation, storage or other costs handed down by the manufacturer or the Seller. Shipping and handling charges for shipping your order to you will not be credited or refunded. The Seller will make commercially reasonable efforts to provide accurate information including billing and shipping information as well as any special requirements related to the final destination; including certificates of origin, product certification etc., however the Buyer will shall remain responsible for all such costs. Any costs incurred by the Seller as a result of subsequent order or requirement changes made by the Buyer will also be the responsibility of the Buyer and billed accordingly. 

Seller may, in its sole discretion, without liability or penalty, make partial shipments of products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfilment of Buyer’s Customer Order.

(a) delivery dates, estimates

All lead times and delivery dates are estimates, and are subject to change without notice, and cannot be used as a reason for cancellation. Seller shall not be liable for any delays, loss, or damage in transit. The Buyer hereby agrees not to hold Seller (or its manufacturers), or any of their parent, subsidiaries, affiliates or other related entities, and their respective, officers, director, employees or agents, responsible for delays beyond the Seller’s reasonable control.

ABD is not liable, and hereby disclaims all liability and the Buyer agrees not to hold ABD responsible for, any delay or failure to deliver caused by labour or transportation difficulties, acts of God, natural disasters, terrorist, failure of sources of supply or other causes beyond our control and such changes will affect the delivery date.

(b) ownership, seller’s lien

A Seller’s lien shall remain on title to all merchandise delivered to a Buyer until all undisputed charges for the order have been paid in full by the Buyer.

(c) storage of custom orders

Once a Custom Order is ready for delivery, the Seller will inform the Buyer by sending to the Buyer a final invoice for the Custom Order.. If the final invoice is not paid within 30 days of the date of the final invoice, delivery of the Custom Order will not be arranged and a monthly storage fee (in addition to any interest charges set out in paragraph 1(b) hereof) will be charged to the Buyer. A monthly storage fee shall be charged to Buyer (a) on merchandise that cannot be delivered as the final invoice payment has not been received; (b) on merchandise not picked up; (c) on merchandise for which delivery is not arranged by the Buyer or (d) on merchandise that Buyer does not accept delivery within thirty (30) days from the date of the final invoice. Should the Buyer not accept delivery within the 30 days from the date of final invoice, the Buyer acknowledges that they by default assume ownership of the goods and all title and risk of loss shall pass to the Buyer, and that the Seller is effectively providing a service of storage only. The goods will however only be released upon full payment of the final invoice.

(d) inspection of goods by buyer upon delivery

The Buyer (or the Buyer’s Representative) is responsible for inspecting the packaging and all delivered items immediately upon receipt (do not wait until installation) for flaws, defects or damage, and indicate on the packaging and/or paperwork from the freight or shipping company that delivered it, if there is any visible damage.

If damage of the packaging or product is detected, the Buyer or the Buyer’s Representative must, within three (3) business days of delivery of the product provide notice in writing to ABD, which notice must: (A) describe the damage to ABD; (b) provide detailed images of the damaged packaging or product; (c) provide copies of any signed POD (Proof of Delivery) by the Buyer or the Buyer’s Representative. Upon receipt of such notice, ABD will assess the issue and reserves the right to remedy the situation as it sees fit, in its sole discretion, including the right to repair, replace or otherwise.

section 6.
warranty disclaimer

Descriptions, representations and other general information concerning the Seller’s products that may be contained in the Seller’s catalogues, website, advertisement, or in other promotional materials or statements or representations made by the Seller or its agents shall not be binding and shall not be part of the limited warranty unless as described in Paragraph 7 below.

No commercial or contract warranties are offered unless otherwise specified in writing herein. The Limited Warranty set out in Section 7, gives you specific legal rights, EXCEPT AS EXPRESSLY STATED THEREIN, TO THE EXTENT PERMITTED BY LAW, ABD EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, WITH RESPECT TO ITS PRODUCTS OR SERVICES SOLD, INCLUDING BUT NOT LIMITED TO ANY: (1) WARRANTIES OF MERCHANTABILITY; OR (2) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (3) CONDITION OR WARRANTY OF TITLE; OR (4) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED, AND ABD SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES.

section 7.
limited warranty

Notwithstanding Section 6, but subject to the subsections set out in this Section 7, the Seller warrants that any goods sold by the Seller will be free from any material defects in workmanship and materials for one (1) years from the date of delivery. This warranty does not apply to damage or breakage resulting from misuse, accidents, abuse, neglect, mishandling or reasonable wear and tear resulting from normal use or from not following care instructions, and is subject to the subsections below. This warranty is only valid to the original Buyer, who must retain the original invoice. The warranty provided herein is the sole warranty given by the Seller.

section 8.
claims pursuant to limited warranty

Any warranty claims must be made by the original purchaser, in writing, and must be accompanied by a copy of the original invoice. Claims must be received by ABD prior to the termination of the 2 year limited warranty period. If the Seller, in its sole discretion, determines that a claim is valid, and that the limited warranty applies, in accordance with the provisions said limited warranty, the Seller shall, free of charge and at the Seller’s sole option, repair, replace or reimburse the components of the item(s) to which the claim relates.

Please note the following with regard to various items:

(a) furniture:

Wood and metal finishes may vary in colour, tone and character. While the Seller will make every effort to match a finish, no guarantee can be made for an exact match. Manufacturer does not guarantee finishes against fading and oxidizing. Variation in colour and veining are inherent in stone and wood and considered to be part of the natural beauty.

(b) outdoor furniture:

All wood materials will expand and contract with moisture and temperate change. Over time this may cause slight cracking of the wood. This is a natural occurrence and is not indicative of a failure in manufacture workmanship. Natural teak will weather to silver patina over time when exposed to the elements. Stain finishes will degrade over time and dirt and residue may adhere to the teak unless regularly maintained by washing, sanding, and reapplying stain regularly.

(c) textiles:

Seller does not guarantee fabrics, dyed or natural from fading. The foregoing warranty is in lieu of and excludes all other warranties not expressly set forth herein, whether express, or implied by operation of law or otherwise, including but not limited to any implied warranties of merchantability and fitness. Buyer agrees to allow Seller to operate within the twenty percent (20%) industry variance or as accepted by the Seller.

(d) leather:

Seller does not guarantee leather fabrics from fading. The foregoing warranty is in lieu of and excludes all other warranties not expressly set forth herein, whether express, or implied by operation of law or otherwise, including but not limited to any implied warranties of merchantability and fitness. Variation in colour of the leather is part of its natural beauty. Buyer agrees to allow Seller to operate within the twenty (20) per cent industry variance or as accepted by the Seller.

(e) rugs:

Rugs are completely handmade and size, colour, texture, design, quality and wear ability may vary slightly from samples. The Buyer here by agrees to accept the variation of approximately five (5%) percent, or as stipulated by the Seller, in the specified size and without any representations, express, or implied, with respect thereto.

(f) ceramics:

The Buyer hereby agrees to follow these general guidelines for in its use of any ceramics purchased:

• Avoid contact with heavy or sharp objects.
• Never use side tables as stools.
• Ceramic is fragile by nature and may break when using too much force.
• Ensure ceramic objects are resting on rubber tabs provided with the pieces, or on a soft surface.
• Use a coaster where ever applicable as ceramic surfaces with metallic finishes are sensitive to heat and water.

section 9.
limitation of liability

ABD will not be liable for any damages occurring a result of any breach of these Terms and Conditions resulting from any delay beyond the Seller’s commercially reasonable control, including without limitation, strike lockout, work stoppage, terrorism, act of God, or other delays beyond the Seller’s control.

Note that the Seller accepts no liability for customer supplied fabric or leather on stock or Custom Orders. Buyer shall indemnify and hold the Seller harmless for any damages, injures or losses arising out of, or related, to the use of the Customer Supplied Material or Customer Supplied Leather on a product.

If Seller’s performance of its obligations under the Customer Order is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants or employees, Seller shall not be deemed in breach of its obligations under the Customer Order or these Terms and Conditions or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.

Other than as set out herein in writing, IN NO EVENT WILL ABD OR ANY OF ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR OTHER DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO: (A) ANY BREACH OF THESE TERMS AND CONDITIONS (OR CUSTOMER ORDER), WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER OR SELLER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE; AND/OR (B) ANY INFORMATION, CONTENT, MATERIALS OR PRODUCTS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU ON ITS WEBSITE, IN ITS CATALOGUES, OR AT A STORE LOCATION; AND/OR (C) FROM ANY ORDER OR PURCHASE FROM THE SELLER, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS OR BUSINESS INTERRUPTION. ABD ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF ITS WEBSITE OR CATALOGUES.

Notwithstanding anything to the contrary in these Terms and Conditions, the entire liability of ABD to a Buyer shall be limited to the lesser of (A) the invoiced amount of the product under the applicable Customer Order, or (B) the amount actually received by the Seller on account of the invoiced amount for the product.

The Buyer hereby agrees to fully release and hold the Seller harmless from and against any and all claims, demands, liabilities, losses, costs and expenses, including without limitation a Buyer’s misuse, poor or improper handling or care of the product(s).

section 10.
governing law + choice of forum

The Terms and Conditions are governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to any conflict of laws principles which would result in the application of any other law. You consent and submit to the exclusive jurisdiction of the courts located in the City of Toronto, in the Province of Ontario, Canada in all disputes arising out of or relating to the order or purchase of products by you from ABD or these Terms and Conditions.

section 11.
compliance with law

Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under the Customer Order and as set out herein. Buyer shall comply with all export and import laws of all countries involved in the sale of the goods under the Customer Order or any resale of the goods by Buyer. Buyer assumes all responsibility for shipments of goods requiring any government import clearance. Seller may terminate a Customer Order if any governmental authority imposes antidumping or countervailing duties or any other penalties on goods.

section 12.
termination

In addition to any remedies that may be provided under these Terms and Conditions, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under an invoice; (b) has not otherwise performed or complied with any of these Terms and Conditions, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, liquidation, reorganization, or assignment for the benefit of creditors.

section 13.
waiver

No waiver by Seller of any of the provisions of these Terms and Conditions is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising hereunder operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

section 14.
confidential information  

All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with a Customer Order is confidential, solely for the use of performing the Customer Order and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

section 15.
assignment

Buyer shall not assign any of its rights or delegate any of its obligations under a Customer Order or these Terms and Conditions without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under the Customer Order or these Terms and Conditions.

section 16.
relationship of the parties

The relationship between the parties is that of independent contractors. Nothing contained herein or the Customer Order shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

section 17.
severability

If any term or provision contained herein is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.

Copyright

“ABD” is a trademark of ASHLEY BOTTEN DESIGN INC.