This Sales and Return Policy was last revised on, and is effective as of, November 16th, 2018.
This Sales and Return Policy governs the terms and conditions upon which Tree Hugger Solutions, LLC, a Florida limited liability company, its subsidiaries, and affiliates (collectively, “Tree Hugger” or “we” or “us”) agrees sell products and/or services to you (“you” or “your” or “Buyer”) from the Tree Hugger Online Services (as defined in our Terms of Service).
Tree Hugger will make a good faith effort to complete delivery of the products that you order from us using the Online Services or by such other means (for example by telephone or facsimile) that are confirmed by us at the time you place the order or as otherwise indicated by us in writing, but we assume no responsibility or liability and will accept no back charge for loss or damage due to delay or inability to deliver such products, whether or not such loss or damage was made known to us, including but not limited to, liability for Tree Hugger’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 Tree Hugger 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 in product delivery or failure to give notice of delay.
SHIPPING AND RISK OF LOSS
Tree Hugger will ship all products purchased using the Online Services or by such other means (for example by telephone or facsimile), freight prepaid, FOB your destination. The method of shipment shall be consistent with the nature of the Products and hazards of transportation. Regardless of FOB destination point, Tree Hugger agrees to bear all risks of loss, damage, or destruction of the products ordered by you that occurs prior to actual delivery. After delivery, the risk of loss or damage shall be borne by you, except loss or damage attributable to Tree Hugger’s fault or negligence. The cost of any special packing or special handling requested by you shall be added to the amount of the order. If you cause or request a shipment delay, or if Tree Hugger ships or delivers the products erroneously as a result of inaccurate, incomplete or misleading information supplied by you, your agents or employees, storage and all other additional costs and risks shall be borne solely by you.
INSPECTION AND ACCEPTANCE
Within five (5) days of delivery, you shall inspect the products for defects, nonconformance and/or rejection, whether due to damage, shortages, errors in shipping or otherwise, and either reject the order in writing or accept all or a portion of the received products. After such five (5) day period, you shall be deemed to have irrevocably accepted any products not previously rejected or accepted by Tree Hugger. After acceptance, you shall have no right to reject the products for any reason whatsoever or to revoke acceptance. You hereby agree that such five (5) day period is a reasonable amount of time for such inspection, acceptance or rejection. You shall have no right to order any change or modification to any product or service previously ordered by you, your agents or employees or cancel any order without Tree Hugger’s prior written consent and payment to Tree Hugger of all charges, expenses, commissions and reasonable profits owed to or incurred by Tree Hugger as a result of such change or cancellation. Specially fabricated or ordered items may not be canceled or returned, and no refund will be made. The sole and exclusive remedy for products alleged to be defective in material or workmanship will be the replacement of such products subject to Tree Hugger ‘s inspection and warranty. If Tree Hugger in its sole discretion permits buyer to return conforming products, you shall pay a restocking fee equal to 20% of the purchase price plus the cost of shipping. Products may not be returned to Tree Hugger without pre-approval in writing.
PAYMENT AND SECURITY INTEREST
You agree to pay for the products according to Tree Hugger’s payment terms. In the event you fail to make any payment to Tree Hugger when due, your entire account(s) with Tree Hugger 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. You hereby grant Tree Hugger a purchase money security interest in the products until such time as Tree Hugger is fully paid. You agree to assist Tree Hugger, at your expense, in taking the necessary action to perfect and protect Tree Hugger’s security interest in the products that are not paid for in full at the time of shipment. No products furnished by Tree Hugger shall become a fixture by reason of being attached to real estate.
DEFAULT OF BUYER AND REMEDIES
Each of the following circumstances shall constitute a default by you of any agreement to purchase products from Tree Hugger entered into between us using the Online Services or by such other means (for example by telephone or facsimile): (a) your failure to perform any term or condition contained in this Sales and Return Policy; (b) your insolvency or your failure to pay your debts as they become due, or an assignment by you for the benefit of your creditors, the appointment of a receiver over your business or assets or over the products covered by any purchase order governed by this Sales and Return Policy or the filing of any petition to adjudicate you bankrupt; (c) your failure to pay any amount due and owing to Tree Hugger as and when due; (d) a failure by you to provide adequate assurance of performance within five (5) days after a justified demand by Tree Hugger; or (e) if Tree Hugger reasonably believes that your prospect of performance under any purchase order placed by you is impaired. Upon default by you, Tree Hugger shall have the right to immediately accelerate any and all amounts unpaid under any outstanding purchase orders or in connection with your account with Tree Hugger. Tree Hugger, in its sole discretion shall also have the right to cancel the unexecuted portion of any purchase order, while retaining the right to collect damages including lost profits on the entire purchase order. You agree that you shall reimburse Tree Hugger for all losses suffered by Tree Hugger as a result of your default or breach, including reasonable attorney’s fees, costs and expenses incurred by Tree Hugger in connection therewith. All rights and remedies of Tree Hugger herein are in addition to any other right or remedies available to Tree Hugger at law or in equity.
The amount of any sales, excise or other taxes, if any, applicable to the sale of the products to you shall be added to the purchase price and shall be paid by you unless you provide Tree Hugger with an exemption certificate acceptable to the relevant taxing authorities. Any taxes which Tree Hugger 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 you, who shall promptly pay the amount thereof to Tree Hugger upon demand.
If a TREE HUGGER® product is found to be defective in materials or workmanship after inspection by TREE HUGGER® or an authorized Tree Hugger representative, Tree Hugger will repair or at its option exchange the product for a similar model. This limited warranty is for a period of one (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 in the event you did not purchase the product directly from us. Accordingly, save sales receipts, purchase orders or invoices.
Tree Hugger 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 product has been subjected to faulty maintenance, abuse, misuse, accident or other damage; if it was not installed in accordance with Tree Hugger’s instructions; if it was modified or altered in a manner inconsistent with the product as shipped by Tree Hugger.
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.
TREE HUGGER 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 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 that may vary from state to state.
Tree Hugger shall not be responsible for any losses or damages sustained by you or any other person as a result of improper installation or misapplication of the products. You agree to defend, indemnify and hold harmless Tree Hugger 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 personal injury 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, Tree Hugger, or any of their agents, employees or suppliers. The obligations, indemnities and covenants contained in this paragraph shall survive the consummation or termination of any purchase and sale of products governed by this Sales and Return Policy or governed by the Terms of Service.
No terms and conditions other than the terms and conditions contained herein or in the Terms of Service shall be binding upon Tree Hugger unless accepted by us in a writing signed by an authorized Tree Hugger signatory. All terms and conditions contained in any prior oral or written communication, including, without limitation, any purchase order, which are different from or in addition to the terms and conditions herein are hereby rejected and shall not be binding on Tree Hugger, whether or not they would materially alter this document, and Tree Hugger 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 products. All transactions between you and Tree Hugger 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 Sales and Return Policy or governed by the Terms of Service or the products sold hereunder or thereunder must be brought against Tree Hugger, within the applicable statutory period, but in no event more than one (1) year from actual or constructive notice of the claim. Tree Hugger and Buyer agree that the Florida State Courts for the Seventeenth Judicial Circuit in or for Broward County, Florida (the “Identified Courts”) shall have exclusive jurisdiction of all disputes between them relating to the products this Sales and Return Policy or governed by the Terms of Service. Each party hereby irrevocably and unconditionally: (i) submits to the jurisdiction of the Identified Courts for any proceeding; (ii) shall not commence any proceeding, except in the Identified Courts; (iii) waives, and shall not plead or make, any objection to the venue of any proceeding in the Identified Courts; (iv) waives, and shall not plead or make, any claim that any proceeding brought in the Identified Courts has been brought in an improper or otherwise inconvenient forum; and (v) waives, and shall not plead or make, any claim that the Identified Courts lack personal jurisdiction over it.