Contents
Exclusive Terms
Acceptance
Taxes
Shipment, Freight and
Delivery
Product Pick-up
Product Installation
Payment Terms
Change in or
Cancellation of Order
Financial Responsibility
Buyer's Agreement to Defend
Notice of Accident or
Malfunction
Warranty
Limitation of Remedies
Returns
Handling Charges for Returns
Damages
Defaults or Delays
Governing Law
Binding Effect
Waiver
Interpretation
1.
Exclusive Terms
All orders shall be governed by the following terms and conditions.
These terms and conditions shall constitute the complete Agreement
between the purchaser of the goods (herein called 'Buyer') and Petra
Design Inc. (herein called 'Seller') and shall supersede all prior and
contemporaneous oral and written statements of any kind whatsoever
made by the parties and their representatives.
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2. Acceptance
Buyers orders shall not constitute contracts of sale unless accepted
in writing by an authorized agent of Seller at its home office in
Gainesville, Florida. Seller's acceptance of any order is expressly
conditioned upon Buyer's assent to the terms and conditions contained
in this Agreement. Any added, varied, or conflicting terms in Buyer's
Purchase Order or elsewhere are hereby objected to and shall not bind
Seller, unless expressly agreed to in writing signed at Seller's home
office in Gainesville, Florida., by a duly authorized officer of
Seller in a document making specific reference to this Agreement and
specifically stating that it 'amends' this Agreement. Buyer expressly
accepts the terms and conditions herein by signing Purchase Order or
Proposal.
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3. Taxes
Any applicable federal, state, local or other government tax or charge
on the sale or shipment of the goods covered by this Agreement shall
be added to the price and paid by Buyer. Buyer agrees to hold Seller
harmless from all such taxes, including interest and penalties
thereon, and any costs and expenses in connection thereupon.
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4. Shipment, Freight and
Delivery
Except as otherwise provided, all prices are F.O.B. Seller's warehouse
in Gainesville, Florida. The decision as to place of shipment shall be
solely that of Seller. If buyer’s requests for products to be
delivered to a location, then shipping, Freight and Delivery Charges
need to be paid prior to delivery.
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5. Product Pick-up
If the determined delivery method is
buyer pick-up, Buyer is responsible for a timely pick-up. Products
that are not picked up within fifteen (15) days of completion of
purchase order will result in a daily storage fee per linear foot of
product. This fee will be based on the standard storage rates plus a
handling fee. Seller is not responsible for any damages occurred
during the transport of goods and products from Seller’s office to
destination.
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6. Product
Installation
Buyer shall be
responsible for coordinating construction and installation of other
trades including plumbing, electrical, floors, walls, etc. This must
be done prior to delivery, in order to insure timely installation of
cabinets. If cabinet installation is delayed due to Buyer’s
scheduling, installation time may be extended, and product storage,
including rental fees (if applicable) will become the responsibility
of the Buyer. Delays extending Fifteen (15) days beyond completion of
the purchase order will result in a daily storage fee per linear foot
of product. This fee will be based on the standard storage rates plus
a handling fee.
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7. Payment
Terms
Except as otherwise provided, payment terms are due fully or partially
as indicated in the purchase order or proposal. A late payment charge
of one and one half percent (1.5%) per month (but not in excess of the
legal maximum) may be added to all past due balances. Buyer is
responsible for reasonable attorney's fees, costs and expenses
incurred in connection with the collection of past due balances. Buyer
shall have no right of set-off.
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8. Change in or
Cancellation of Order
Buyer's cancellation of orders or change of orders for any items
requested are subject to a service charge to cover the costs of
initial processing and/or production of the order. A Change Order
Authorization must be approved by both Buyer and Seller in order for
changes to be processed.
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9. Financial Responsibility
Shipments and deliveries of all items shall at all times be subject to
approval of Seller's Credit Department. Seller at any time may require
payment in advance or satisfactory security or guarantee that invoices
will be promptly paid when due. Prior to credit approval orders will
only be shipped/deliver on the basis of payment in advance. Buyer
should submit a completed credit application with its initial order to
expedite credit approval. In addition to and without limiting Seller's
existing rights and remedies, Seller reserves the right to withhold
further deliveries and/or terminate this or any other contract with
Buyer, if Buyer fails to comply with the terms of this or any other
Agreement. Upon Seller's termination of this Agreement, all unpaid
amounts Buyer owes Seller shall become immediately due and payable.
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10. Buyer's Agreement to Defend
Buyer agrees to defend, protect, and save Seller harmless against all
suits at law or in equity and from all costs of suit, legal fees,
expenses, damages, claims, and demands arising out of or awarded in
connection with any goods: (a) sold or supplied to Buyer by Seller
that are not maintained and operated in accordance with recommended
procedures, or (b) sold or supplied to Buyer by Seller to meet Buyers
specifications, requirements, or instructions.
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11.
Notice of Accident or Malfunction
Buyer shall notify Seller promptly and in any event within thirty (30)
days of any accident or malfunction involving goods manufactured or
sold by Seller. Buyer agrees to protect, defend, and save Seller
harmless (as provided in paragraph 10), in the event that Buyer fails
to give such notice to Seller and to so cooperate.
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12. Warranty
Except as otherwise provided, Seller warrants for a period of one (1)
year from the date of shipment or installation that the goods supplied
to Buyer shall be of good materials and workmanship. Seller further
warrants for a period of one (1) year that the goods supplied by
Buyer, when properly installed and used, will conform to any
specifications supplied by Seller. Seller makes no warranty with
respect to materials not manufactured by Seller, the use of which is
suggested by Sellers general recommendations, application or
installation procedures, or otherwise. THE FOREGOING WARRANTIES ARE
EXCLUSIVE, AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
WRITTEN OR ORAL, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. SELLER DOES NOT
ASSUME, NOR AUTHORIZE ANY REPRESENTATIVE OR OTHER PERSON TO ASSUME FOR
IT, ANY OBLIGATION OR LIABILITY OTHER THAN AS EXPRESSLY SET FORTH
HEREIN.
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13. Limitation of Remedies
Seller's obligations under the above warranties (contained in Section
10) are conditioned upon Seller actually receiving notice from Buyer
of the alleged defect within one (1) year from date of shipment and
the allegedly defective goods revealing an actual defect upon
examination by Seller. Seller shall not be liable for any labor or
other expenses incurred by Buyer in the removal, repair, or
replacement of the goods or any component part claimed to be
defective, nor shall Seller be liable for any expenses incurred by the
Buyer in order to remedy any defect. Seller shall not be liable for
any consequential, special, or contingent damages or expenses, arising
directly or indirectly from Buyers use or inability to use goods. The
discharge of Seller's warranty obligation hereunder shall constitute
fulfillment of all liabilities of Seller to Buyer, whether based on
contract, negligence, or otherwise. The remedies set forth herein
shall be the exclusive remedies available to the Buyer and in lieu of
all other remedies, and the liability of Seller, whether in contract,
in tort, warranty or otherwise, shall not exceed the price of the
goods sold, supplied, or furnished by Seller. Any suit or action
arising out of or relating to this Agreement or the breach thereof
must be commenced within one (1) year after the cause of action has
accrued. The foregoing shall not limit the time within which any suit
or action must be brought to collect an amount agreed to be paid by
Buyer or to enforce a judgment or to collect any amount awarded to
Seller. The sole purpose of the stipulated exclusive remedy shall be
to provide Buyer with a credit or replacement for, or repair of,
defective parts in the manner provided herein. This exclusive remedy
shall not be deemed to have failed of its essential purpose so long as
Seller is willing to credit Buyers account, repair, or replace the
defective part(s) in the manner prescribed herein.
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14. Returns
Buyer must receive a Returned Materials Authorization (RMA) prior to
returning goods. Buyer must request an RMA within thirty (30) days of
the date of the shipment in order to be considered. Seller will not
issue an RMA for custom, special order, non-stock, obsolete or
made-to-measure goods. All goods returned to Seller must be in the
original packaging and in resalable condition and must pass inspection
before any credit is issued by Seller.
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15. Handling Charges for Returns
Buyer is subject to a handling charge of no less than twenty dollars
($20.00) and no more than twenty percent (20%) of the sales price of
the returned goods. Defective goods, as verified by inspection, are
not subject to a handling charge.
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16. Damages
Seller is not liable for any damages to goods sustained during
shipment. Buyer is responsible for filing any damage claims with
freight carriers and is subject to the rules of the freight carriers
regarding the timing and processing of claims.
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17.
Defaults or Delays
Seller shall not be liable for any default or delay in the production
or delivery of all or any goods resulting either directly or
indirectly from (a) accidents to, breakdowns, or mechanical failure of
Seller's plant, machinery, or equipment; strikes or other labor
troubles; labor shortages; fire; flood; wars; acts of the public
enemy, acts of God; delays of suppliers; delays in transportation or
lack of transportation facilities; embargos; shortages of, or
reductions in energy sources; priorities, allocations, limitations,
restrictions, or other acts required or requested by Federal, state,
or local governments, or any subdivision, bureau or agency thereof; or
(b) any cause beyond the control of Seller. In no event shall Seller
be liable for any consequential, special, or contingent damages
arising out of Seller's default or delay in filling Buyer's order.
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18.
Governing Law
Both Buyer and Seller execute all orders with reference to the laws of
the State of Florida and the rights of all parties and the
construction and effort of every provision of this Agreement shall be
subject to and construed according to the laws of the State of
Florida.
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19.
Binding Effect
The provisions of any order shall bind and inure to the benefits of
Seller and Buyer and their respective successors and permitted
assigns. However, neither this Agreement, nor any part thereof or
right thereunder, may be assigned by Buyer without the prior written
consent of Seller.
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20.
Waiver
The right of either party to require strict performance by the other
party of any or all terms and conditions of this Agreement shall in no
way be affected or impaired by prior waiver, forbearance, or course of
dealing.
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21.
Interpretation
Whenever possible, each provision of this Agreement will be
interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of the Agreement should be
prohibited or invalid under appropriate law, that provision will be
deemed deleted and the remaining provisions of the Agreement will
remain in full force and effect. The subject headings of the sections
of this Agreement are included for the purpose of convenience only and
will not affect construction or interpretation of any of its
provisions.
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Petra Design Inc., Gainesville – FL –
2007
