Standard Terms and Conditions
All sales are subject to the ten numbered Standard Terms and Conditions set forth below:
Seller will make a good faith effort to complete delivery of the products as indicated by Seller in writing, but Seller assumes no responsibility or liability and will accept no back charge for loss or damage due to delay or inability to deliver, whether or not such loss or damage was made known to Seller, including but not limited to, liability for Seller’s non-performance caused by acts of God, war, labor difficulties, accidents, inability to obtain materials, delays of carriers, contractors or suppliers or any other causes of any kind whatsoever. Under no circumstances shall Seller be liable for any special, consequential, incidental, indirect, or liquidated damages, losses, or expense (whether or not based on negligence) arising directly or indirectly from delays or failure to give notice of delay.
All products shipped by Seller are shipped F.O.B., point of delivery, with risk of loss transferring to the Buyer upon tender of goods to Buyer, Buyer’s Representative or Buyer’s common carrier. All products shipped by Buyer are shipped F.O.B. point of shipment, with risk of loss transferring to Buyer upon transfer of the goods to the common carrier. The cost of any special packing or special handling caused by Buyer’s requirements or requests shall be added to the amount of the order. If Buyer causes or requests a shipment delay, or if Seller ships or delivers the products erroneously as a result of inaccurate, incomplete or misleading information supplied by Buyer or its agents or employees, storage and all other additional costs and risks shall be borne solely by Buyer. Claims for products damaged or lost in transit should be made by Buyer to the carrier where Buyer arranged for shipment and by Buyer to Seller where Seller arranged for shipment.
- INSPECTION AND ACCEPTANCE
Within five (5) days of delivery, Buyer shall inspect the products for defects, nonconformance and/or rejection, whether due to damage, shortages, errors in shipping or otherwise, and either reject in writing or accept all or a portion of the products. After such five (5) day period, Buyers shall be deemed to have irrevocably accepted any products not previously rejected or accepted by Seller. After acceptance, Buyer shall have no right to reject the products for any reason whatsoever or to revoke acceptance. Buyer hereby agrees that such five (5) day period is a reasonable amount of time for such inspection, acceptance or rejection. Buyer shall have no right to order any change or modification to any product or service previously ordered by Buyer or its representatives or cancel any order without Seller’s prior written consent and payment to Seller all charges, expenses, commissions and reasonable profits owed to or incurred by Seller. Specially fabricated or ordered items may not be canceled or returned, and no refund will be made. The sole and exclusive remedy for merchandise alleged to be defective in workmanship or material will be the replacement of the merchandise subject to the Seller’s inspection and warranty. If Seller in its sole discretion permits buyer to return conforming products, the Buyer shall pay a restocking fee equal to 20% of the purchase price plus the cost of shipping.
- PAYMENT AND SECURITY INTEREST
Buyer agrees to pay for the products according to the Seller’s payment terms. In the event Buyer fails to make any payment to Seller when due, Buyer’s entire account(s) with Seller shall become immediately due and payable without notice or demand. All past due amounts shall be charged interest at the rate of 18% per annum or the maximum rate allowed by law, whichever is less. Buyer does hereby grant Seller a purchase money security interest in the products until such time as Seller is fully paid. Buyer will assist Seller in taking the necessary action to perfect and protect Seller’s security interest. No products furnished by the Seller shall become a fixture by reason of being attached to real estate.
- DEFAULT OF BUYER AND REMEDIES
The following shall constitute defaults by Buyer: (a) the failure of Buyer to perform any term or condition contained herein; (b) the insolvency of Buyer or its failure to pay debts as they mature, an assignment by Buyer for benefit of its creditors, the appointment of receiver for Buyer or for the materials covered by this order or the filing of any petition to adjudicate Buyer bankrupt; (c) failure to pay any amount due and owing to Seller as and when due; (d) a failure by Buyer to provide adequate assurance of performance within five (5) days after a justified demand by Seller; or (e) if Seller believes that Buyer’s prospect of performance under this Agreement is impaired. Upon default by Buyer, Seller shall have the right to immediately accelerate any and all unpaid of purchase price under this Purchase Order or in connection with Buyer’s account with Seller. Seller in its discretion shall also have the right to cancel any unexecuted portion of this Purchase Order, while retaining the right to receive its profit on the entire Purchase Order. Buyer shall reimburse Seller, all attorney’s fees, costs and expenses incurred by Seller in connection therewith. All rights and remedies of Seller herein are in addition to any other right or remedies available to Seller in law or in equity.
The amount of any sales, excise or other taxes, if any, applicable to the products shall be added to the purchase price and shall be paid by Buyer unless Buyer provides Seller with an exemption certificate acceptable to the local taxing authorities. Any taxes which Seller may be required to pay or collect under any existing or future law, upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption of any of the products, including taxes upon or measured by the receipts from the sale thereof, shall be for the account of the Buyer, who shall promptly pay the amount thereof to Seller upon demand.
- LIMITED WARRANTY
If a TREE HUGGER® product is found to be defective in materials or workmanship after inspection by an authorized TREE HUGGER® representative, Seller will repair or at its option exchange the product for a similar model. This limited warranty is for a period of three (1) year from the date of purchase provided, however, this warranty will immediately terminate if the product is moved from its original place of installation. This limited warranty applies only to the original installation and to the original purchaser and is not transferable by the original purchaser.
Upon the transfer of the product by the original purchaser to a third party, all warranties terminate. In the event of a limited warranty claim, proof of purchase will be required – save sales receipt. The Buyer shall at its own expense apply for and obtain any permits and inspections required for the installation and/or use of the products.
Seller makes no representation that the products or services will conform to any federal, state or local laws or ordinances, regulations, codes or standards. This limited warranty is void if the TREE HUGGER® brand product has been moved from its initial place of installation; if it has been subjected to faulty maintenance, abuse, misuse, accident or other damage; if it was not installed in accordance with Seller’s instructions; if it was modified or altered in a manner inconsistent with the product as shipped by Seller;
This limited warranty does not cover (i) any liability for incidental, special, consequential, indirect or liquidated damages attributable to a product defect or to the repair or exchange of a defective product, all of which are expressly excluded from this limited warranty, and hereby expressly disclaimed, or (ii) the extension beyond the duration of this limited warranty of any implied limited warranties, including those of merchantability or fitness for an intended purpose, all of which are excluded from this limited warranty and hereby expressly disclaimed. If a product is defective or damaged in any way before or during installation, do not install it.
SELLER IS PROVIDING THIS WARRANTY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ALL OF WHICH ARE EXCLUDED FROM THIS WARRANTY AND HEREBY EXPRESSLY DISCLAIMED.
Some states/provinces do not allow limitations on how long an implied warranty lasts, or the exclusion or limitation of special, incidental or consequential damages, so these limitations and exclusions may not apply to you. This warranty gives you specific legal rights. You may also have other rights which vary from state/province to state/province.
Seller shall not be responsible for any losses or damages sustained by the Buyer or any other person as a result of improper installation or misapplication of the products. Buyer shall defend, indemnify and hold harmless Seller and its agents and employees from and against any loss, damage, claim, suit, liability, judgment or expense (including, without limitation, reasonable attorney’s fees and costs) arising out of or in connection with any injury, disease or death of persons (including, without limitation, Buyer’s employees and agents) or damage to or loss of any property or the environment, or violation of any applicable laws or regulations resulting from or in connection with the sale, transportation, installation, use, or repair of the products by Buyer or of the information, designs, services or other work supplied to Buyer, whether caused by the concurrent and/or contributory negligence of Buyer, Seller, or any of their agents, employees or suppliers. The obligations, indemnities and covenants contained in this paragraph shall survive the consummation or termination of this transaction.
- CONTROLLING PROVISIONS
No terms and conditions other than the terms and conditions contained herein shall be binding upon Seller unless accepted by it in a writing signed by the Seller’. All terms and conditions contained in any prior oral or written communication, including, without limitation, Buyer’s Purchase Order, which are different from or in addition to the terms and conditions herein are hereby rejected and shall not be binding on Seller, whether or not they would materially alter this document, and Seller hereby objects thereto. All prior proposals, negotiations and representations, if any, are merged herein. Buyer will be deemed to have assented to all terms and conditions contained herein if any part of the goods and/or services described herein are shipped or an invoice is presented in connection with the said goods and buyer accepts the Product. This transaction shall be governed in all respects by the laws of the State of Florida (excluding choice of law provisions). All actions, regardless of form, arising out of or related to this transaction or the products sold hereunder must be brought against Seller, within the applicable statutory period, but in no event more than ONE (1) YEAR from actual or constructive notice of the claim. Seller and Buyer agree that the Seventeenth Judicial Circuit in or for Broward County, Florida shall have exclusive jurisdiction of all disputes.
These terms and conditions of sale shall not be construed against the party preparing them but shall be construed as if all parties jointly prepared these terms and conditions of sale and any uncertainty or ambiguity shall not be interpreted against any one party. If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable, and the terms and conditions herein shall be construed and enforced as if such illegal, invalid or unenforceable provision had never been made a part hereof. The remaining provisions herein shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provisions or by their severance here from. Buyer shall not be entitled to set-off any amounts due Buyer against any amount due Seller in connection with this transaction. This document constitutes the entire, complete, and exclusive agreement between the parties with respect to the subject matter hereof and contains all the agreements and conditions of sale; no course of dealing or usage of the trade shall be applicable unless expressly incorporated herein. The terms and conditions contained herein may not be added to, modified, superseded or otherwise altered except by a written modification signed by the Seller’s Supervisor. All transactions shall be governed solely by the terms and conditions contained herein.