TERMS AND CONDITIONS
1. GENERAL. The Seller Devin LaLonde Designs LLC., DBA Grit and Grain Co. (“Seller”) and the Purchaser (“Buyer”) named on the invoice or receipt hereof agree that the following terms and conditions apply to the materials, goods and/or products (“Goods”) listed on the front of this agreement (“Agreement”) or subsequently ordered pursuant to this Agreement.
2. ACCEPTANCE/SOLE TERMS. This order is expressly conditioned upon Buyer’s acceptance to foregoing terms. Buyer is hereby put on notice that no terms additional to or deviating from the foregoing terms shall become part of the order, unless and until letter acceptance of such additional or deviating terms, signed by an office of Seller has been issued to Buyer. Buyer’s acceptance of any goods supplied by or on behalf of, Seller shall, without limitation constitute acceptance of Seller’s foregoing terms. If Buyer retains possession of the Goods for a period of ten (10) days or longer after the receipt of their shipment or makes use of the Goods at any time after their receipt, Buyer shall be deemed to have expressly assented to Seller’s foregoing terms without condition or qualification, and in so doing, Buyer shall have confirmed its express intention to waive any conditions or qualifications on Buyer’s acceptance of Seller’s offer.
3. DISCLAIMER FOR WOOD PRODUCTS AND COLOR VARIATIONS. Seller reserves the right to make such additions, deletions, or changes to the Work as may be necessary in its sole and absolute discretion to complete the Work; provided, however, that no such additions, deletions or changes shall substantially affect the substance of the Work or the cost or time for performance thereof. This Contract shall in no way be invalidated by any such additions, deletions or changes. It is the Seller’s goal to provide as color-consistent a product as wood and its natural imperfections will allow. Color and finish will be affected by the grain and color variations between each pieces of wood.
4. PAYMENTS. For custom made products, seller requires a 50% deposit at acceptance of estimate. Balance shall be paid upon completion of product. For all other products, payment is to be made in full upon order.
5. PRICE. All prices are F.O.B. Seller’s warehouse unless otherwise specifically set forth on the face side hereof. Prices stated are subject to change without notice in the event of (i) alterations in specifications, quantities, designs, or delivery schedules: (ii) increases in the cost of fuel, power, material supplied, or labor, and/or (iii) foreign or domestic legislation enacted by any level of government, including tax legislation which increases the cost of producing, warehousing or selling the Goods purchased hereunder. No discount will be allowed unless specifically set forth on the face side hereof. Buyer agrees to pay a delinquency charge of 1-1/2% per month or if such rate shall exceed the maximum rate allowed by applicable law, then a delinquency charge calculated at such maximum rate on the outstanding balance not paid when due, from the date such balances were due until payment with respect thereof is made in full. If, in Seller’s opinion, the financial condition of the Buyer at any time does not justify continuance of production or shipment on the terms of payment specified. Seller may require full or partial payment in advance. Terms or payment are those appearing on the reverse side of the invoice.
6. LEAD TIME Seller’s quoted lead time (completion date) is only an estimation for the products completion date. Lead time is an estimate that begins once deposit is received. The seller has the right to extend te lead time at seller’s discretion. Lead time does not include shipping or delivery time estimates. Seller is not liable for an losses incurred by buyer due to delays in completion of product. In-stock products will be ready for pickup or shipment within two (2) business days.
7. WARRANTY/REMEDY. Seller warrants that the materials, goods manufactured by it will be free from defects in material and workmanship for one year (1) following the date of shipment THE FOREGOING WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED. ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANT-ABILITY OR FITNESS FOR A PARTICULAR PURPOSE NOT EXPRESSLY HEREIN, ARE HEREBY EXCLUDED. NO AFFIRMATION OR SELLER, BY WORDS OR ACTION, OTHER THAN AS SET FORTH IN THIS WARRANT CLAUSE SHALL CONSTITUTE A WARRANTY. GOODS WHICH MAY BE SOLD BY SELLER BUT WHICH ARE NOT MANUFACTURED BY SELLER ARE NOT WARRANTED BY SELLER, BUT ARE SOLD ONLY WITH THE WARRANTIES. IF ANY, OF THE MANUFACTURERS THEREOF. Seller ’s warranty does not apply to any Goods which have been subjected to misuse, mishandling, misapplication, neglect, accident, wear and tear, water damage, improper installation or modification that is not completed by seller (including but not limited to use of unauthorized parts or attachments), or damage by cleaners or abrasives.
a. If any of the goods are found by Seller to be defective, such goods will, at Seller’s option, be replaced or repaired at Seller’s cost. The parties hereto expressly agree to Buyer’s sole and exclusive remedy against the Seller shall be for the repair or replacement of the defective Goods. Buyer hereby agrees that this exclusive remedy shall not be deemed to have failed of its essential purpose so long as the Seller is willing and able to repair or replace defective Goods in the prescribed manner.
b. Any warranty claim by Buyer with reference to the Goods sold hereunder shall be deemed waived by the Buyer unless submitted in writing to Seller with the earlier of (i) 40 days following the date Buyer discovered, or by reasonable inspection should have discovered, any claimed breach of the foregoing warranty, or (ii) One year following the date of receipt. Any cause of action for breach of the foregoing warranty shall be brought within one year from the date of alleged breach was discovered or should have been discovered, which ever occurs first, or be forever barred from all claims.
c. Seller’s remedies relating hereto to shall be cumulative and in addition to any other remedies provided herein or by law or in equity.
8. LIMITATION OF LIABILITY. To the extent not prohibited by law, and in no event shall "seller" be liable for personal injury, or any incidental, special, indirect or consequential damages whatsoever, including, without limitation, damages for loss of profits, loss of Data, business interruption or any other commercial damages or losses, arising out of or related to your use or inability to use the product, however caused, regardless of the theory of liability (contract, tort for otherwise) and even if "seller" has been advised of the possibility of such damages. In no event shall "seller" provide total liability to the "buyer" for all damages exceeding the amount paid by the “buyer” for the specific product. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
9. DISCLAIMER OF CONSEQUENTIAL AND INCIDENTAL DAMAGES. IN NO EVENT SHOULD SELLER BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS A AGREEMENT INCLUDING WITHOUT LIMITATION BREACH OF ANY OBLIGATION IMPOSED ON SELLER HEREUNDER OR IN CONNECTION HEREWITH. THE REMEDY UNDER THE WARRANTY PROVISION IS LIMITED TO REPAIR OR REPLACEMENT. Consequential damages for purposes hereof shall include, without limitation, loss of use, income or profit or losses sustained as the result of injury (including death) to any person or loss of or damage to property (including without limitation, property handled or processed by the use of the goods). Buyer shall indemnity Seller against all liability, cost or expense which may be sustained by Seller on account of any such loss, damage or injury.
10. ACCEPTANCE OF GOODS, DELIVERY AND TRANSPORTATION. Upon buyer’s receipt of shipment, buyer shall immediately inspect the Goods. Unless Buyer provides Seller with written notice of any claim or shortages of or defects in the forty eight (48) hours after receipt of shipment, such Goods shall be deemed finally inspected, checked and accepted by Buyer. In the absence of shipping and packing instructions, Seller shall use its own discretion in choice of carrier and method of packing. Seller shall not be responsible for insuring shipments unless specifically requested by Buyer and any insurance so requested shall be at Buyer’s expenses and valuation. Seller expressly reserves the right to over-ship or under-ship Goods by up to twenty (20%) percent.
11. TITLE AND RISK OF LOSS. Title to any Goods sold and risk of loss of such Goods passes to Buyer upon delivery by Seller to carrier, and any claims for losses or damage shall be made by Buyer directly to carrier.
12. SECURITY INTEREST. To secure prompt payment of the purchase price for the goods identified on the face hereof. Buyer hereby grants to Seller a purchase money security interest in the goods purchased from Seller and all proceeds thereof (the “Collateral”). Buyer agrees to execute and deliver to Seller USS financing statements, together with any and all other documents, and shall take such other action, as may be required to perfect Seller’s security interest in the Collateral.
13. COSTS OF COLLECTION. If, at any time or times, Seller incurs legal expenses or other costs of expenses in connection with: (i) any litigation, contest, suit, dispute, proceeding or action in any way relating to the Collateral: (ii) any attempt by Seller to enforce any rights of Seller against Buyer or any other person which may be obligated to seller hereunder, or (iii) any attempt to inspect, verify, protect, preserve, restore, collect, sell, liquidate or dispose of the Collateral; then, in any such event, the expenses and costs (including attorney’s fees) relating to any of the foregoing events or actions shall be payable by Buyer on demand to Seller and shall be considered additional obligations hereunder secured by the Collateral. Seller reserves the right to revoke any credit extended to Buyer at any time, because of Buyer’s failure to pay for any goods when due or for any reason deemed good and sufficient by Seller.
14. TAXES. Any sales, sue or similar taxes, export charges, fees or other levies, taxes or surcharges now or hereafter imposed in connection with the production, sale, delivery, use or proceeds of the goods herein specified (except for taxes on seller’s net income) shall be payable by Buyer, and if such taxes or fees are paid or are required to be paid by Seller, the amount thereof shall be added to and become part of the price payable by Buyer hereunder, unless Buyer provides Seller with a valid tax exemption certificate.
15. PACKAGING. Product packaging will be furnished only when specified and so stated herein, and the cost thereof shall be borne by Buyer. Buyer to request a separate quotation for palleting, packaging, wrapping, or boxing.
16. DELAYS. Unless expressly specified to the contrary, Goods in stock will be shipped within two business days, and Goods not in stock will be shipped as soon as possible. However, all shipping dates are approximate, and are based upon current availability of materials, present production schedules, and prompt receipt of all necessary information. Seller will not be liable for any damage, loss, fault, or expenses arising out of delays in shipment or other nonperformance of this Agreement caused by or imposed by: (a) strikes, fires, disasters, riots, acts of God, (b) acts of Buyer, (c) shortages of labor, fuel, power, materials, supplies, transportation, or manufacturing facilities, (d) governmental action, (e) subcontractor or supplier delay including, but not limited to failure by subcontractor or supplier to make timely delivery, or (f) any other cause of condition beyond Seller’s reasonable control. In the event of any such delay or nonperformance, Seller may, at its option, and without liability, cancel all or any portion of this Agreement and/or extend any date upon which any performance hereunder is due.
17. TERMINATION, CANCELLATION AND CHANGES. Orders cannot be terminated, cancelled or modified, or shipment deferred after acceptance of Buyer’s order by Seller, except with Seller’s written consent and subject to reasonable charges for expenses incurred and work executed by Seller or its suppliers. Purchase shall be obligated to accept any portion of the goods shipped or delivered by Seller pending Seller’s written approval of cancellation. Orders for custom made material may not be cancelled after Seller has been in production unless Seller agrees in writing.
18. RETURNED PRODUCTS. Delivered Goods returned to Seller require prior written approval from seller before such goods will be accepted. Handling, inspection, restocking and invoicing charges will be accessed, if applicable, plus any outgoing packing and freight expenditures paid by Seller. All returns allowed must be shipped to Seller prepaid and must be in excellent resale condition. Goods processed to Purchaser’s specifications are not returnable. (Unopened OSMO products may be returned within 30 days of purchase with a 15% restocking fee)
19. NO WAIVER. Forbearance or failure of Seller to enforce any of the terms and conditions stated herein, or to exercise any right accruing from default of Buyer, shall not affect or impair Seller’s rights arising from such defaults; nor shall forbearance or failure be deemed a waiver of Seller ’s rights in case of any subsequent default of Buyer.
20. SEVERABILITY. If any provision of this Agreement is unenforceable or invalid, this Agreement shall be interpreted and enforced to the greatest extent possible as if the unenforceable provision or portion had never been a part hereof.
21. ASSIGNMENT. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of buyer and Seller provided, however, that buyer may not assign or transfer this contract, in whole or in part, except upon the prior written consent of Seller.
22. GOVERNING LAW. This Agreement shall be construed in accordance with and governed by the laws of the State of Florida without regard to its conflict of law provisions. All actions or proceedings arising directly or indirectly therefrom shall be litigated only in the courts of the State of Florida or United States federal courts located therein and the parties hereby consent to the jurisdiction and venue of such courts.
23. ALTERNATIVE DISPUTE RESOLUTION
a. Any dispute or claim arising from or relating to this Agreement or performance under it shall be resolved amicably through discussions between Buyer and Seller attempting in good faith to negotiate a resolution thereof; provided, however, that either buyer or Seller may seek injunctive relief from a court of proper jurisdiction where appropriate, in order to maintain the status quo while this procedure is being followed. If the parties fail to resolve any dispute arising under this Agreement, either party may seek arbitration as follows: (a) By written notice to the other party, submitting the dispute to binding arbitration, in accordance with the then-current Expedited Commercial Arbitration Rules under the American Arbitration Association (“AAA”), each party to bear equally the costs of the arbitration provided, however, that the other party may agree or refuse to participate in such arbitration. (b) If the parties are not successful in resolving the dispute through self-help or one of the parties refuses to participate in arbitration, the dispute shall be resolved by litigation.
b. Any claim submitted to arbitration must be governed by the Expedited Commercial Rules of the AAA: except that (i) Provision 21 must govern applicable law and construction, (ii) the locale of any arbitration will be in Orlando, Florida or agreed to by the parties in writing, (iii) the arbitration panel will consist of a single arbitrator, selected pursuant to the rules of the AAA, (iv) the language of the arbitration must be in English, (v) any arbitration award must state the arbitrator’s material findings of fact and conclusions of law, (vi), a party may seek preliminary injunctive or other equitable relief from any court of competent jurisdiction to preserve the status quo pending establishment of an arbitration panel, (vii) a prevailing party in litigation to require arbitration or to obtain preliminary relief pending establishment of an arbitration panel, in arbitration, or in litigation to confirm or enforce an arbitration award will be entitled to recover is reasonable attorney’s fees and costs. Any suite to require arbitration under this agreement, or to enforce judgment upon an arbitration award, may be brought in the state and federal courts of the State of Florida.
24. ENTIRE CONTRACT. Upon Seller’s acceptance of buyer’s order, the terms and provision set forth herein shall constitute the entire agreement between Buyer and Seller and no statement, correspondence, sample or other terms shall modify of effect terms hereof.