All sales are expressly conditional on Customer’s agreement to the standard terms and conditions herein. Any of the terms and provisions of Customer’s order which are inconsistent with or in addition to the terms and conditions hereof shall not be binding on Seller and shall not be considered applicable to the sale or shipment of the merchandise referred to herein. Unless Customer shall notify Seller in writing to the contrary as soon as practicable after Customer’s receipt hereof, acceptance of the terms and conditions hereof by Customer shall be indicated, and, in the absence of such notification, the sale and shipment by Seller of the merchandise covered hereby shall be conclusively deemed to be subject to the terms and conditions hereof.
- Third Party Contract Obligations:
In the event that Customer has contracted for or otherwise assumed with any other party any obligation or liability to an owner, contractor, construction manager, governmental entity, or any other person or entity responsible for the completion of any portion of any project in which Seller’s goods will be used, the parties agree that Seller is not a party to such contract. Therefore, Seller does not assume any liability or obligation – including but not limited to any liability or obligation related to governmental regulations or flowdown terms – under any such contract or agreement. Absent a written agreement to the contrary, signed by an authorized representative of Seller, Customer releases and agrees to defend, indemnify and hold Seller harmless for any claims of any nature whatsoever related to any obligation, risk, liability or responsibility which was Customer’s under any contract or which was assumed by Customer towards any owner, contractor, construction manager, governmental entity, or other party involving the goods or work supplied by Seller to fulfill any contractual requirement.
The goods sold by Seller are products of recognized manufacturers sold under their respective brand or trade name in accordance with their terms and conditions. Seller shall use its best efforts to obtain from each manufacturer, in accordance with the manufacturer’s warranty (copies of which will be furnished upon request) or customary practice, the repair or replacement of goods that may prove defective in material, design, or workmanship. The foregoing shall constitute the exclusive remedy of Customer and the sole obligation of Seller. Except as to title, SELLER GIVES NO WARRANTY, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR OTHERWISE. Seller shall not,
under any circumstances be liable for any special, direct, indirect, incidental, exemplary, liquidated, or consequential damages to persons or property arising out of or connected with the transactions contemplated hereby or the design, manufacture, subsequent sale or use of the goods, including, but not limited to, loss of profit or revenues, loss of use of the products, or any associated equipment, cost of capital, cost of substitute or replacement products, cost of labor associated with substitute or replacement products, facilities, service, or replacement power, down time costs, or claims of Customer’s customers for such damages. If Customer transfers title to or leases the products sold hereunder to any third party, Customer shall indemnify and defend Seller and its suppliers against any such damages.
- Product Compliance and Suitability:
Seller does not guarantee compliance or suitability of the goods it sells with any laws, codes or regulations. It is Customer’s responsibility to review the product application and all applicable laws, codes and regulations for each relevant jurisdiction to be sure that the construction, installation, and/or use involving the goods are compliant.
- Intellectual Property:
All Intellectual Property Rights produced from or arising as a result of the performance of the order shall, insofar as not already vested, become the absolute property of the Seller and the Customer shall do all that is reasonably necessary to ensure that such rights vested in the Seller by the execution of the appropriate instruments or the making of agreements with third parties.
Upon prompt notice by Customer of any claim of U.S. patent, copyright, or trademark infringement with respect to any goods, Seller will use its reasonable efforts to secure for Customer such indemnity rights as the manufacturer may customarily give with respect to such goods. This section sets forth Customer’s sole and exclusive remedy against Seller regarding the infringement by any goods of any third-party intellectual property rights, including, without limitation, any patents or trademarks.
- Prices, Delivery, Title and Risk of Loss:
Delivery dates are approximate and based upon receipt of all necessary information from Customer. Unless otherwise specified by Seller, delivery will be made and title and risk of loss or damage will pass F.O.B. point of shipment to Customer and each shipment or delivery shall be considered a separate and independent transaction. Unless otherwise quoted, prices for goods shall be those in effect at the time of shipment. Prices for special-order goods may be subject to change prior to shipment; Seller shall notify Customer of any change, and Customer may, subject to the Cancellation provisions, ask to cancel the special-order goods if the revised prices are unacceptable, in which case Customer shall be liable for vendor-related charges due to the cancellation. Unless otherwise stated, all quotations in the estimates expire thirty (30) days from the date of the quotation, or such earlier time as Seller provides notice to Customer if not already accepted. This time limit applies even if Customer has used the quotation to submit a job or project bid to any other party.
- Excusable Delays:
Seller will notify Customer promptly of any material delay and will specify the revised delivery as soon as practicable. Seller shall not be liable for delays in delivery or performance, or for failure to manufacture, deliver or perform as a result of acts of God, fire, acts of civil or military authority, governmental priorities, strikes or other disturbances, floods, epidemics, war, riots, delays in transportation or car shortages, or inability on account of causes beyond the reasonable control of Seller to obtain necessary materials, components, services or facilities, or any other cause beyond Seller’s reasonable control. In the event of any such delay there will be no termination and the date of delivery or performance shall be extended for a period equal to the time lost by the reason of the delay.
Unless the cancellation is due to a default by Seller, once an order is placed with and accepted by Seller, the order cannot be cancelled, unless Seller consents in writing. If an order is cancelled, Customer shall reimburse Seller for any cost it incurs as a result of such cancellation, including but not limited to cancellation or restocking fees.
- Payments and Financial Conditions:
Payment is due fifteen (15) days from delivery or installation. A service charge of 1.5% per month, but not to exceed the highest amount allowed by applicable state law, shall be made on all sums due Seller that have not been paid within thirty (30) days from the invoice date, and Customer agrees to promptly pay said service charge. If Seller commences litigation or employs attorneys to collect payment of any amounts due it from Customer, Customer agrees to pay reasonable attorney’s sums which may be due.
- Disclosure of Information:
Any information, suggestions or ideas transmitted by Customer to Seller in performance hereunder are not to be regarded as secret or submitted in confidence except as may be otherwise provided in writing and signed by a duly authorized representative of Seller.
In addition to any price specified herein, Customer shall pay the gross amount of any present or future sales, use, excise, value-added or other similar tax applicable to the price, sale, or delivery of any product or services furnished hereunder, or to their use by Seller or Customer, or Customer shall furnish Seller with a tax exemption certificate acceptable to the taxing authorities.
- Claims Against Seller:
In order to give Seller a reasonable opportunity for investigation, any claim by Customer against Seller based wholly or in part upon, or any manner related to this agreement and/or merchandise sold hereunder, shall be made in writing and delivered to Seller within (30) days after the date of sale or occurrence giving rise to the claim, whichever shall be later; otherwise such claims shall be waived. Each notice of claims shall set forth fully the facts on which the claim is based. Any action based on such claim, or otherwise arising hereunder, must be commenced and prosecuted within two years after the cause of action has accrued.
All installations will be scheduled during normal working hours, being 7:30 a.m. to 5:00 p.m. Monday to Friday. Any works requested to be undertaken outside of these hours will be charged as overtime, unless specifically detailed otherwise in the Estimate or any subsequent documentation and agreed by the Seller. All requests for overtime must be in the form of a written site instruction from the Customer submitted prior to any overtime being worked. All overtime charges must be agreed beforehand.
The time allowed for any installation assumes normal site conditions. If we encounter site conditions at the installation that we could not have anticipated at time of Estimate the Seller reserves the right to surcharge the installation price.
The time allowed for installation assumes free and uninterrupted access to the site. Additional time on site to complete an installation due to factors outside the control of the Seller will be chargeable, including where other trades are working in the same space while attempting the install.
- Delivery of Products:
The Seller will not guarantee a delivery date for any Product(s).
It is the responsibility of the Customer to consider our stated lead-times and to plan it work and schedule accordingly. The Seller will not be held responsible for delays to or problems of scheduling where the lead-time falls outside your completion date or where the time you have allowed for the project has not considered our lead-time. In our experience ‘rush jobs’ are more prone to error and generally take longer.
Estimates prepared by the Seller are based on our interpretation of the drawings and/or written description provided by the Customer or the Customer’s representative. It is the responsibility of the Customer to check the Estimate for accuracy and no claims against the Seller will be accepted for any failure to check the documentation.
Estimates will include a lead-time for manufacture when requested which is, as far as Seller can determine from the information available to us at the time, an accurate indication of how long we expect your order to take from Estimate approval to completion, being either delivery or installation. The Seller shall use all reasonable endeavors to supply the products within the estimated lead-time but from time to time circumstances outside our control may delay completion.
The submission of an Estimate by the Seller shall not to be construed as a recommendation that the prevailing site conditions are suitable for the fitting of any product offered by the Seller. Responsibility for assessing site suitability rests absolutely with the Customer and no claims will be accepted for any failure to undertake this assessment.
All Estimates are subject to these Terms and are open for acceptance for a period of 30 days only from the date thereon unless previously withdrawn.
Orders are to be made in writing, are to be on official letterhead or purchase order and must clearly display the estimate number to which the Order relates and also include full details of the Customer. Any Order is subject to acceptance by the Seller. Correspondence regarding particular Orders will only be sent to the Customer or their nominated representative. Verbal Orders or verbal variations to Orders will not be accepted under any circumstances. Changes to any Order must be confirmed by the Customer in writing. Manufacture will not commence until any alterations, including any revised costs, have been formally accepted by the Customer and any additional deposit has been made. The placing of an Order will be deemed to be an acceptance of these Terms and Conditions and any other terms contained within the applicable Estimate.
- Customer’s Obligations:
To enable the Seller to perform its obligations under these Terms, the Customer shall:
Fully cooperate with the Seller;
In a timely fashion provide the Seller with any information requested or reasonably required by the Seller; and
Obtain all necessary permissions and consents which may be required before the commencement of the instillation or delivery; and comply with such other requirements as may be set out in the Estimate, these Terms and Conditions or otherwise agreed between the parties.
The Customer shall be liable to compensate the Seller for any expenses incurred by the Seller as a result of the Customer’s failure to comply with any aspect of these Terms and Conditions.
- Limitation of Liability:
The Seller shall have no liability for any of the following:
Product defects resulting from fair wear and tear, neglect, accident, improper use or use contrary to any instructions or advice provided by the Seller.
Product(s) that have been adjusted modified or repaired in any way other than by the Seller’s own installers.
Suitability of the Product(s) for any particular use or conditions, whether or not any such use or conditions were known to the Seller.
Substitution by the Customer of any items, materials or components not forming part of the Product Specification produced by the Seller.
Substitution of any Product(s) or parts thereof provided always that any such substituted materials or components do not materially affect the characteristic or performance of the Product(s) and that any such substitution is of equal or higher quality to those originally specified.
The accuracy of any dimensions or templates supplied to the Seller by the Customer.
Seller’s maximum cumulative liability relative to all other claims and liabilities, including that with respect to direct damages and obligations under any indemnity, whether or not insured, will not exceed the cost of the goods or services giving rise to the claim of liability. Seller disclaims all liability relative to gratuitous information or services provided by, but not required of seller hereunder.
Nothing in these Terms shall exclude or limit the Seller’s liability for death or personal injury resulting from the Seller’s negligence or that of its employees, agents or sub-contractors.
Either party may terminate any agreement under these Terms and Conditions by notice in writing to the other if:
The other party commits a material breach of the Terms and Conditions, in the case of a breach capable of being remedied, fails to remedy it within thirty (30) calendar days of being given written notice from the other party to do so;
The other party commits a material breach of the Terms which cannot be remedied under any circumstances;
The other party ceases to carry on its business or substantially the whole of its business; or
The other party is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
- Paragraph Headings:
Paragraph headings are inserted for convenience only and shall not be deemed to limit or affect the scope of the provisions contained therein.