Terms & Conditions

I. GENERAL

The following Terms and Conditions (“Terms”) are applicable to all sales of doors and all related equipment, machinery, materials, tools, articles, documentation, and any other goods (the “Products”) made by SWD Bespoke, Inc. , a Delaware corporation with its registered office located at 251 Little Falls Drive, Wilmington, DE 19808 (“Seller”), and the acceptance of any order is expressly conditioned upon Buyer’s consent to these Terms. No interlineations, deletions, modifications or amendments to these Terms shall be binding on Seller unless agreed to and accepted in writing by Seller,nor shall Buyer’s terms and conditions have any legal effect unless accepted by Seller in writing. The initiation of performance under the contract shall indicate Buyer’s acceptance of these Terms.

All sales are subject to Seller’s written acceptance, and Seller reserves the right to reject any order at its sole discretion, with or without reason. Once Seller has provided written acceptance, Buyer must reconfirm the order by email or hard copy and remit 50% of the contract price to Seller in order for Seller to proceed with the order. Buyer must respond to Seller’s written acceptance within twenty-four (24) hours of receiving such confirmation if it wishes to cancel the order. Failure to do so will result in: (i) Buyer waiving its right to cancel the order and paying the contract price, and (ii) Buyer being deemed to have accepted these Terms.

If Buyer has confirmed the order and paid 50% of the contract price to Seller, Seller will then issue an order confirmation, which Buyer must carefully review. The information contained in this order confirmation is provided to the factory for production and must be accurate. If Buyer confirms that the information is accurate, it will sign the order confirmation or confirm by email and send it to Seller.

If Buyer wishes to modify the order after confirmation, Seller, at its sole discretion, will determine whether the changes can be implemented, considering the factory's production process. Any resulting adjustments to the contract price will be made, and Buyer shall pay the adjusted amount immediately. If the changes cannot be implemented, as determined at Seller’s sole discretion, Buyer shall pay for the Products as originally ordered and accept delivery.

II. PRODUCT INFORMATION; PRICE QUOTATIONS

The quotations or tenders are noncommittal and non-binding in nature. No contract shall arise until a written acknowledgment from Seller accepting Buyer’s order, is sent by Seller to Buyer. Seller will be entitled to adjust agreed prices on the basis of the average change in the cost price of the Products or services to be delivered and/or activities to be performed by Seller.

The weights, dimensions, capacities, performance ratings, characteristics and other data on Seller’s catalogs, prospectus, brochures, plans, drawings, circulars, advertisements, price lists, websites and instructions sheets are mentioned only as general information. They are only approximate and shall not bind Seller.

III. DELIVERY; DELAYS IN DELIVERY

Unless otherwise specified by the parties in writing, the Products are to be delivered “ex works”, at Seller’s place of business (as “ex-works”/ EXW is defined by Incoterms 2020). The method and agency of transportation and routing will be designated by Seller. In the event Buyer requests alternative shipment or routing, the resulting alternative packing, shipping and transportation charges will be for Buyer’s account.

Buyer shall in due time undertake preparatory work to ensure that the conditions necessary for (i) the installation of the Products and (ii) the correct operation of any work to be carried out under these Terms, are fulfilled. Buyer shall be responsible for transporting the Products to the relevant site and shall ensure, to this effect, that such site is appropriately prepared to receive the Products and start the installation work.

Any specific shipping date designated in writing signed by Seller shall be interpreted as estimated and in no event shall dates be construed as falling within the meaning of “time is of the essence”. Seller shall not be responsible for any delays in filling orders, nor shall it be liable for any loss or damages resulting from such delays regardless of whether such delays are due to force majeure or otherwise.

Under no circumstances shall Buyer or Buyer's customers be entitled to any damages for Seller's failure to ship on time, and Buyer agrees to indemnify, defend and hold Seller harmless against any costs and expenses related to any claims for lost profits or other consequential damages based on Seller's failure to deliver timely.

If Buyer does not accept or pick up the Products at the date specified in the order or later agreed to by Seller, the delivery of the Products shall nevertheless be deemed accepted by Buyer who shall therefore pay for the Products delivered. The storage of the Products arranged by Seller will be at the risk and expense of Buyer. At its sole discretion, Seller may decide to terminate the contract upon written notice to Buyer and Seller shall be entitled, to the exclusion of any other remedy for Buyer’s failure to take the Products, to compensation for the loss it suffered as a result of Buyer’s delay, including any consequential and indirect loss, as well as any expenses properly incurred in performing the contract and not covered by payments received for the Products delivered.

IV. INSTALLATION WORK

If Buyer is required to undertake preparatory work to receive the Products and allow the Seller to install them, and if Buyer anticipates being unable to fulfill its obligations in a timely manner, Buyer must notify Seller in writing. This notice should include the reason for the delay and the anticipated time when Buyer will be able to meet its obligations. If Buyer fails to meet its obligations in a timely manner, Seller may, at its discretion:

(a)   choose to carry out or employ a third-party to carry out Buyer’s obligations or otherwise take such appropriate measures in order to avoid late installation of the Products and therefore alleviate the effects of Buyer’s default;

(b)  suspend in whole or in part its performance of the contract;

(c)   arrange for storage of the Products at Buyer’s risk and expense;

(d)  demand immediate payment of any remaining fees;

(e)   demand reimbursement to Buyer of all the costs incurred because of the implementation of one or several measures set forth in (a), (b), (c) and (d) of this section.

The following services are not included in Seller’s installation work:

• Creating new openings or altering existing ones;
• Performing any building work other than what is agreed upon in the order confirmation;
• Connecting or reconnecting doorbells, alarm sensors, or any electrical wiring;
• Applying mastic or filling any external gaps over 3/8 inch (10 millimeters);
• Applying mastic internally;
• Repairing or addressing old hinge or latch/lock cut-outs;
• Removing or repositioning door stops, unless included in the installation package; old door stops will be used where possible, and new ones will be fitted if necessary;
• Taking responsibility for dimensions or sizes not measured by Seller’s personnel;
• Taking responsibility for the condition of surrounding brickwork or masonry;
• Obtaining any required structural approvals;
• Guaranteeing matching veneers for paired doors;
• Trimming or cutting doors beyond the manufacturer’s recommendations;
• Performing any decorating work.

V. SELLER’S WORKING CONDITIONS

In the event the parties have agreed in writing that Seller would perform the preparation and installation of the Products, Buyer shall ensure that:

(a)   a clear, clean and dry delivery and working area is provided, free from personal belongings, as well as a specific dry area for all joinery supplies and in the case of inclement weather;

(b)  Seller’s personnel will be allowed to start work in accordance with the agreed time schedule and will work during normal business hours, as determined by Seller. No other tradesmen, aside from those provided by Seller, will be permitted on the worksite;

(c)   it has informed Seller and Seller’s personnel of all relevant safety regulations in force at the relevant site;

(d)  all necessary safety measures have been taken and will be maintained for the entire duration of the installation work;

(e)   all necessary permits and building permissions are in place before the installation work begins;

(f)   a clear 6.5-foot working space around the aperture is provided and that all openings are the correct size as specified by the Buyer to the Seller;

(g)  Seller, Seller’s personnel, or any representative designated by Seller, will have access, free of charge, to acceptable hygiene facilities, drinking water, medical services, telephones and internet, secure and dry storage facilities;

(h)  it has made available to Seller and Seller’s personnel on the relevant site, free of charge and under the sole responsibility of Buyer, all necessary tools, equipment, material, supplies (including power supply within 10 feet of the worksite), machinery, instruments, electricity (including artificial lighting), in order for Seller and Seller’s personnel to perform the installation work;

(i)    it shall give all necessary assistance to ensure that Seller, Seller’s personnel and any representative designated by Seller, obtain in due time work permits, official entries, parking, exits, and general access to the relevant site;

(j)    any representative designated by Seller, who will act on behalf of Seller in all matters concerning the installation work for its whole duration, shall be authorized on the relevant site during business hours.

VI. PAYMENT

Unless otherwise stated, payment for the Products shall be received by Seller by wire transfer into Seller’s account as follows:

-       50% of the purchase price after Seller has provided written acceptance and after Buyer has reconfirmed the order by email or hard copy;

-       50% paid before delivery.

In the event Seller feels insecure concerning payment by Buyer, Seller reserves the right to require cash or letter of credit payment terms. The price does not include:

(a)   any present or future Federal, State or Local property, sales, use, excise, license, gross receipts or other taxes or assessments which may be applicable to, imposed upon or result from this transaction or any services performed in connection with these Terms and/or the Products;

(b)  all traveling expenses incurred by Seller in respect of its personnel and the transport of their equipment and personal effects;

(c)   any cost of board and lodging and other living expenses including any appropriate allowances of Seller’s personnel for each day’s absence from their homes, including non-working days, holidays and sick leaves;

(d)  the time worked by Seller’s personnel, including overtime, work on Sundays, work on holidays and night work as the case may be and as usually paid by Seller;

(e)   any additional costs incurred in the event the Products installation is delayed due to a cause which is attributable to Buyer, including but not limited to extra work, additional financing costs, insurance costs, board and lodging costs;

(f)   and generally, any costs and expenses incurred by Seller in accordance with the performance of the contract.

Buyer agrees to pay all the items above-mentioned under (a) to (f) or reimburse payment of these items by Seller.

In the event payment is not received when due, interest shall be due at the rate of eight percent (8%), or the maximum permitted by law, on the unpaid portion of the invoice sum for each period of thirty (30) calendar days or part thereof from the due date. Seller has the right to refuse to deliver the Products or services if Buyer is past due on any of its debts to Seller.

Buyer shall pay all of Seller's costs of collection of any amounts past due, including, but not limited to, attorneys' fees, court costs, witness fees, travel and lodging. Seller will be entitled to apply payments made by Buyer first to pay those claims it deems appropriate, including interest, late charges, costs of collection, etc.

Buyer, or its affiliates or assignees, will not be entitled to suspend its payment obligations to Seller, claim any right to compensation and/or to offset its payment obligations with any obligations of Seller to Buyer, with such obligations being those set forth in these Terms or any other purchase contract between Buyer and Seller. If Buyer does not fulfill its payment obligations to Seller completely or within the applicable payment period, Seller will be entitled to suspend its obligations to Buyer completely and/or not to perform them. Seller will also be entitled to terminate the contract by notifying Buyer in writing.

VII. SECURITY INTEREST

In order to protect and secure payment of all debts due and owing from Buyer and until Seller has been paid in full, Buyer hereby grants to Seller a security interest in the Products, and all proceeds and all accounts receivables resulting from the sale of the Products. In connection therewith, Buyer hereby authorizes Seller to take all necessary steps to file such financing statements and exhibits with the proper authorities, including the filing of a UCC-1 financing statement.

Until Buyer has paid for the Products and services in full, Buyer shall not pledge, mortgage, encumber, or create or suffer to exist a security interest in the Products in favor of any person other than Seller unless written approval of such other security interest is given by Seller. Additionally, Buyer agrees to keep the Products insured to their full value until payment is received by Seller. In the event Buyer sells the Products to a third party before payment in full is received by Seller, Buyer agrees to secure its security interest in the Products at the time of sale to its customer in order to protect Seller’s interests to the greatest extent possible.

VIII. INSPECTION; RETURNS

Unless Seller receives a written complaint with full particulars from Buyer regarding any defective Products or services or other complaints within three (3) business days from the date the Products or services are delivered, the Equipment shall be deemed to have been delivered in good condition and that the delivery is accepted. Acceptance of the returned Products does not imply acknowledgment by Seller of the reason for the return. The Products returned by Buyer to Seller will remain at Buyer's risk and Buyer will owe the agreed amounts until Seller has credited Buyer for these Products. The Products accepted by Buyer from Seller, which Buyer has put fully or partly into use, treated, processed or delivered to others will be considered to conform to the contract.

IX. LIMITED WARRANTY OF EQUIPMENT AND SERVICES

Seller warrants, for twelve (12) months after delivery, unless indicated to the contrary, that the Products and services covered by this contract are produced according to usual practices, customs, standards, specifications and tolerances of trade prevailing in the country of origin at the time of production and shall be free from defects in design, material, workmanship and shall conform to Seller’s specifications. THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. ALL OTHER WARRANTIES, AND SPECIFICALLY THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY EXCLUDED. Products showing only minor defects, not affecting the function of the Products or services shall be accepted by Buyer and shall not give rise to any claim against Seller. All claims of damages of any kind during delivery are barred unless reported in writing by Buyer to Seller, with full disclosure of particulars within three (3) business days after delivery as defined herein.

X. INDEMNIFICATION

Except as otherwise provided for herein, Buyer, on its own behalf, and behalf of its parent, subsidiary(ies), affiliated and related companies, and their respective predecessors, past and present officers, directors, shareholders, agents, employees, legal representatives, successors and assigns (the “Indemnifying Parties”) assumes liability for, and shall pay when due, and shall indemnify, reimburse and hold Seller, and its parent, subsidiary, affiliated and related companies, and their respective predecessors, past and present officers, directors, shareholders, agents, employees, legal representatives, successors and assigns (the “Indemnified Parties”) harmless from and against any and all Claims (defined below), directly or indirectly relating to or arising out of the acquisition, use, purchase, shipment, transportation, delivery, lease or sublease, ownership, operation, possession, control, storage, return or condition of the Products (regardless of whether the Products are at the time in the possession of the Indemnifying Parties), the falsity of any representation or warranty of Buyer, or Buyer’s failure to comply with these Terms. The foregoing indemnity shall cover, without limitation, any claim for negligence, gross negligence, or liability in tort.

“Claims” means any and all liabilities, losses, damages, actions, suits, demands, claims of any kind and nature and all costs and expenses whatsoever to the extent they may be incurred or suffered by the indemnified parties in connection with the Products (including, without limitation, reasonable attorneys’ fees and expenses), fines, penalties (and other charges of applicable governmental authorities), damage to or loss of use of property (including, without limitation, consequential or special damages to third parties or damages to Buyer’s property), or bodily injury to or death of any person(s) (including, without limitation, any agent or employee of Buyer, user of the Products, or any other person).

XI. INTELLECTUAL PROPERTY RIGHTS

All intellectual property rights to, ownership of, and interest in all Products, goods, services, programs, works, trademarks, trade names, logos, distinctive marks, inventions, models, designs, and other materials created and/or made available by Seller hereunder or within the framework of the relationship between Buyer and Seller (the “Intellectual Property”) are vested exclusively in Seller. Seller reserves the right to photograph the installation of any Products and use the images in any of Seller’s literature.

Buyer shall not reproduce, modify, transfer, grant, assign, license or use the Intellectual Property, except in accordance with these Terms. Any unauthorized reproduction of any photos taken by Seller will constitute a breach of copyright.

Buyer shall not remove or alter indications concerning the Intellectual Property rights and concerning the confidential nature of information from the Products, goods, services, programs, works, distinctive marks, inventions, designs, models and other materials created and/or made available by Seller and the Products delivered.

In the event the Products are produced by Seller in accordance with specifications submitted by Buyer, Buyer shall indemnify Seller against all loss, damages, costs and expenses awarded against or incurred by Seller in connection with or paid or agreed to be paid by Seller in settlement of any claim for infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person which results from Seller’s use of Buyer’s specifications.

Seller makes no warranty concerning the appropriateness of the Products or services to the purposes for which Buyer or its customer are acquiring same. Moreover, Seller makes no warranty that the Products or services, or any other Intellectual Property of Seller, do not infringe the rights of third parties.

The foregoing shall not be construed to include any agreement by Seller to accept any liability whatsoever with respect to Buyer’s own or third-party equipment, documents or materials used in combination with or related to the Equipment.

XII. CONFIDENTIALITY

A party (the “Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes, or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (the “Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business, its products and services which the Receiving Party may obtain. The Receiving Party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the Receiving Party's obligations under the contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this section as though they were a party to the contract. The Receiving Party may also disclose such of the Disclosing Party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This section shall survive termination of the contract.

XIII. INSURANCE

During the term of the contract and especially the duration of the installation work by Seller on any relevant site at the case may be, Buyer shall maintain in force, with an insurance company that is rated A++ by AM Best professional indemnity insurance, general liability insurance to cover the liabilities that may arise under or in connection with the contract and include Seller’s personnel as an additional party insured in the amount of $________ per event and $________ in aggregate.

At Seller’s request, Buyer shall produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of the required insurance coverage.

XIV. FORCE MAJEURE

Neither party shall be in breach of the contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such a delay or failure result from events, circumstances or causes beyond its reasonable control including but not limited to, Acts of God, flood, drought, earthquake or other natural disaster; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations; nuclear, chemical, biological contamination or sonic boom, epidemic or pandemic; any law or any action taken by a Government or a public authority including without limitation imposing an export or import restriction, quota or prohibition, and the collapse of buildings, fire, explosion or accident (a "Force Majeure Event").

Buyer shall use all reasonable effort to mitigate the effect of a Force Majeure Event on the performance of its obligations. If a Force Majeure Event prevents, hinders or delays the Seller’s performance of its obligations for a continuous period of more than three (3) months, Seller may terminate the contract immediately by giving written notice to Buyer.

XV. TERMINATION

Seller may terminate or suspend any contract if Buyer is in default of the payment of any obligations pursuant to or any contract between the parties, or if in the sole judgment of Seller, Buyer's financial condition and responsibility has become materially impaired. In addition, Seller shall have the right to recover damages for nonperformance, and any unpaid installments due on account of this or any other contract between the parties shall become immediately due and payable.  

In case of termination or suspension due to force majeure, Seller reserves the right to demand immediate payment for the Products and any raw materials, materials, parts and other goods it purchased, reserved, processed or produced for the performance of an order. Buyer is bound to accept delivery of the Products and such materials, parts, or goods. Failure to accept delivery will give Seller the right to store, sell, or scrap the Products or such materials, parts or goods at Buyer’s expense and risk.

Seller will be entitled to suspend or terminate the contract unilaterally upon written notice to Buyer, with immediate effect, fully or in part if:

(a)   Buyer has failed, or it is the Seller’s belief that Buyer will fail, to fulfill one or more of its obligations under these Terms or any other contracts;

(b)  Buyer has suspended payments or has sought the protection of the Bankruptcy Courts;

(c)   a petition for the involuntary bankruptcy of Buyer has been filed;

(d)  Buyer’s property on Seller’s premises has been attached in execution;

(e)   a resolution for the dissolution and/or winding up of Buyer has been adopted;

(f)   the enterprise operated by Buyer has been fully or partly transferred to a third party without consent of Seller;

(g)  Buyer’s disregards any applicable statute, law, ordinance, code, order, rule, regulation, proclamation or other governmental requirement.

Seller shall not be liable with respect to Buyer for any damages arising from suspension or termination of the contract for the aforementioned reasons.

If the contract is suspended or terminated, performance of the contract already received by Buyer and the payment obligations of Buyer in connection with it will remain. The amounts invoiced by Seller for work actually performed prior to or upon termination of the contract will be immediately due and payable after termination. Buyer agrees to pay any of Seller’s costs, damages, attorneys’ fees and other expenses associated with Seller’s termination of any contract with Buyer pursuant to the terms of this section. Seller’s right of termination shall be without prejudice to any claims or other rights or remedies which Seller may have against Buyer by operation of law or otherwise.

XVI. GOVERNING LAW; JURISDICTION

These Terms and all transactions between Seller and Buyer are governed by the laws of the State of Delaware in the United States, without reference to conflict of laws principles. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. In the event of a dispute arising from or relating to these Terms, which is not resolved by negotiation between the parties, the parties hereby agree to exclusive personal jurisdiction in the state and federal courts located in Delaware.

XVII. ENTIRE AGREEMENT

These Terms constitute the sole terms and conditions of the contract between Buyer and Seller.  No other terms, conditions, or understanding, whether oral or written, shall be binding upon the Seller, unless hereafter made in writing and signed by Seller's authorized representative and, in the case of printed matter, also initialed by such representative next to such printed term or condition.

XVIII. SEVERABILITY

Should any provision of these Terms be judicially declared unenforceable, that provision shall be deemed stricken and the remainder shall continue in full force and effect insofar as it remains a workable instrument for effectuating the intents and purposes of the parties. The parties further agree to renegotiate any so severed provision to bring the same within applicable legal requirements to the greatest extent possible.

XIX. ASSIGNMENT

Buyer shall not assign or transfer these Terms or any related contract or purchase order without the prior written consent of Seller. Seller shall expressly be permitted to assign or transfer, without the prior written consent of Buyer, Seller’s right to receive any or all of the payment due from Buyer under these Terms.

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