* R E S I D E N T I A L * C O M M E R C I A L * H O S P I T A L I T Y * R E T A I L *
GENERAL CONDITIONS OF THE SALES CONTRACT
TERMS AND CONDITIONS
1. ACCEPTANCE of orders and shipment of material hereunder is subject to the approval of our administrative department.
2. WARRANTIES, LIMITATIONS OF WARRANTIES AND LIMITATION OF REMEDIES: All products and goods shipped under this agreement are warranted for ONE YEAR from the date of shipping to be within the recognized commercial tolerances and variances in dimensions as established by the industry, and, in the case of Custom Made Products, to be constructed in accordance with the drawings furnished by SELLER to PURCHASER and in accordance with the plans and specifications.
3. PRICE INQUIRIES AND QUOTES: The selling price of materials stocked by Seller, whether or not listed in Seller's catalogs, are subject to change without notice. Seller will respond to price inquiries for special order items that are not regularly stocked by Seller or that otherwise require special pricing considerations by issuing a Proposal form. Purchaser must notify Seller of any claimed discrepancy between the original inquiry and the Proposal at the time the order is placed. The price quoted on the Proposal will prevail only to the extent it represents materials actually ordered; any deviation therefrom may require a price adjustment. Nothing therein shall be construed as an agreement or an obligation by Seller to sell products to Purchaser on credit terms or otherwise. Seller shall not be bound by clerical errors made on a Proposal. Seller may at any time and in its sole discretion amend, modify, supplement and/or supersede its Terms and Conditions of sale.
4. DELIVERY: Seller will not begin fabrication or purchase of any of the goods under this agreement until EACH of the following conditions are met: (1) All of the complete contract plans, drawings and specifications have been delivered to Seller; (2) All detailed drawings submitted by Seller have been finally approved by all of the authorities whose approval is required; (3) Seller shall have received after the completion of (1) and (2) reasonable notice to commence fabrication of such materials and thereafter Seller shall continue with reasonable diligence to complete fabrication in accordance with Seller’s normal factory practices and procedures. Delivery schedules are Seller’s best estimates of time required to manufacture and ship materials after receipt of information noted above. Seller will make every reasonable effort to meet shipping dates promised and to maintain production schedules consistently therewith. The shipping schedule agreed to by Seller and Purchaser shall be attached to this contract and shall be incorporated in this agreement. The fabrication and delivery of materials hereunder is further contingent upon any strikes, fires, accidents, emergencies, acts of God, or civil insurrection or any other intervening cause although not necessarily limited to the foregoing. In the event that Purchaser will be unable to accept delivery of the materials on the date specified on the contract and/or agreed upon by the parties, Purchaser agrees to notify Seller as soon as possible of the reasons for such delay, and in any event before the pre-agreed delivery date. Seller will warehouse the materials for a period not to exceed two weeks. In the event that any materials are warehoused by Seller for a period longer than two weeks, Purchaser will be charged a storage fee of one-half of one percent (0.5%) per week per invoice total until such time as the materials are delivered.
5. DELAYS: Seller shall not be liable to Purchaser for any delays in manufacturing, shipping or delivery of the goods under this agreement caused by Purchaser. If Seller is prevented or delayed in the shipping of materials so fabricated for a period of 30 days or longer due to any stoppage or delay in the progress of the work on the jobsite, whether or not it be due to the default of Purchaser, Seller may elect to declare due and payable all bills or claims for the materials fabricated whether or not shipped, and this shall be without prejudice to any and all other remedies which Seller may have under Texas Uniform Commercial Code. Further, Seller may elect to suspend fabrication, decline shipment of materials or stop in transit any such shipment should there arise a doubt as to Purchaser’s financial responsibility. Should Purchaser make an assignment for the benefit of creditors, become involved in any bankruptcy or reorganization proceeding, or should any liens be filed against its property, or should a receiver, trustee or other form of court officer be appointed for it or should it otherwise become financially insolvent, Seller may elect to cancel any unfilled portion of this contract and all costs and damages of Seller including storage charges together with any unpaid balances otherwise due, shall become immediately due and payable to Seller by Purchaser. All rights and remedies of Seller under this agreement are cumulative and not alternative or exclusive, and are in addition to any other rights or remedies provided by law or under this agreement.
6. SHIPPING TERMS: Unless specifically included in Seller's proposal or product sales invoice, delivery of the goods hereunder shall be F.O.B. Factory, freight allowed to jobsite, tailgate delivery only.
7. INDEMNIFICATION: Purchaser expressly agrees to indemnify and hold harmless Seller from any action by any other party such as (but not limited to) the owner of the project, the general contractor, any employee of the owner or contractor or any other subcontractor or material man, made against Seller, of any sort whatsoever, including any attorney’s fees or costs expended by Seller in defense of any such claims. Purchaser expressly agrees to indemnify and hold harmless Seller for any and all court costs, attorney’s fees, including the costs of all appellate proceedings, or other costs incurred by Seller to enforce any of the rights under this agreement or under applicable law.
8. PURCHASER’S APPROVAL OF SELLER’S DRAWINGS OR PROPOSALS.:The contents of the plans and specifications as modified by Seller’s approved drawings or proposals constitute the total and final obligation of Seller to Purchaser and wherever the approved drawings or proposals are inconsistent with the plans and specifications, the modified drawings submitted by Seller and approved by Purchaser shall govern. All field measurements are to be performed by Purchaser at his own expense. If the materials fabricated and delivered shall conform to the approved drawings and proposal details but shall not be susceptible of installation in the various areas or places provided therefrom, then such areas or other places shall be corrected by Purchaser or others without cost to Seller.
9. INSPECTION AND ACCEPTANCE: Purchaser agrees to carefully inspect all goods delivered under this agreement promptly upon delivery for any patent defects, readily discernible by normal and customary inspections, and shortages in or damage to those goods. Purchaser agrees to deliver to Seller written notice of any such defects or shortages in the goods within five calendar days after delivery of the goods under this agreement. Purchaser further expressly waives any right to revoke its acceptance if written notice is not provided to Seller within five days after actual discovery of any latent defects or after Purchaser should have discovered such defects in the exercise of ordinary and reasonable diligence. No allowance or credit will be made or given for any labor, repairs, alterations, or materials performed or furnished by Purchaser without Seller’s express written consent.
10. EXTRA WORK CHARGES: Any additional orders or extras for work or materials will be subject to all terms and conditions of this agreement including the payment terms hereunder. Extra work charges shall include but not be limited to: (1) reasonable engineering time required to review revised plans, addenda or bulletins sent to Seller after preparation of its drawings or proposals; (2) reasonable engineering time required to review any changes to goods manufactured as a result of such changes; (3) all additions, changes, or modifications requested or which are necessary as a result of any changes in the plans and specifications after drawings or proposals have been approved; (4) all additions, changes and modifications requested after authorization to proceed has been given to Seller. All goods shipped hereunder will be shipped in maximum lots and any changes or modifications requested by Purchaser which cause Seller to deviate from shipping in maximum lots shall be an extra.
11. PAYMENT: Terms of payment shall be fifty percent (50%) with Order Confirmation and the remaining fifty percent (50%) at Time of and Prior to Shipping the Materials and Purchaser shall have no right to deduct retainage or claim hold backs from payments under this contract. Orders for any and all specially ordered or custom made products require one hundred percent (100%) pre-payment from Purchaser. Title to the materials shall remain with Seller until Purchaser receives physical possession of materials. Risk of loss of the materials shall pass to Purchaser upon delivery of such materials to the carrier. In no event will Seller be liable for loss or damage to materials in transit. Credit for items lost or damaged in transit will not be given until, and only to the extent that, such amounts are paid by the carrier.
12. CHANGES CANCELLATIONS and RETURNS: No change to or cancellation of specially ordered or custom made items ("Non-Stock Items") will be granted once Purchaser has given order confirmation to Seller and the manufacture of such item has begun. Stocked materials may be returned within thirty (30) days of the delivery date, subject to inspection and approval by Seller. If approved for return, Purchaser will receive a refund of the net invoice price less a handling, inspection and restocking fee of thirty percent (30%). No charge will be made for returns due to Seller error.
13. SELLER'S REMEDIES: Upon Purchaser's breach of any term of this Agreement, whether by wrongful rejection, repudiation, revocation of acceptance, or failure to make a payment as required hereunder or any other default, Seller shall have the right to discontinue all deliveries to Purchaser. In addition, Seller shall have all rights and remedies provided by the Uniform Commercial Code, and all other rights and remedies available to Seller under this Agreement or any applicable law or equity, All such rights and remedies shall be cumulative and any waiver by Seller of any of its rights and remedies shall not be construed as limiting Seller's recourse in any manner. Upon breach by Purchaser, Seller may recover all lost profits and reasonable overhead, as well as all incidental and consequential damages incurred by it, including, but not limited to, factory cancellation charges, shipping and freight charges, storage charges, processing fees, delivery charges, court costs and Seller's reasonable attorney's fees (not to exceed amounts permitted by law).
14. PURCHASER'S REMEDIES: Purchaser shall accept delivery of conforming materials when delivered. In the event that Purchaser fails or refuses to accept delivery of conforming materials when delivered, Purchaser shall be deemed to have breached this Agreement. Purchaser's sole and exclusive remedy upon Seller's tender of nonconforming materials is limited to the repair oe replacement of said nonconforming materials by Seller, which shall be in the sole discretion of Seller. Seller shall have a reasonable time from the date of the nonconforming tender, to substitute a conforming tender, and Purchaser expressly agrees to cooperate fully with Seller in procuring such conforming tender. In the event that Purchaser has a complaint with respect to any materials tendered, Purchaser shall notify Seller of such complaints, in writing, within five (5) days following the tender. In the event that Seller is unable to deliver any item ordered by Purchaser for any reason not the fault of Seller, Purchaser agrees to accept delivery of all items actually tendered to Purchaser, and Seller's failure to deliver such items shall not be deemed to be a default hereunder. Seller shall credit to Purchaser's account an amount equal to the amount paid by Purchaser for such undeliverable item(s). In no event shall Seller be liable for any incidental or consequential damages or losses sustained by Purchaser by reason of any nonconforming tender or failure to tender.
15. INTEREST AND ATTORNEY FEES: In the event payments under this contract are not made according to the payment terms, then interest at the rate of 2% per month shall immediately accrue and be chargeable to Purchaser. In the event Seller has to hire legal counsel or professional collection services in order to collect amounts due under this contract including any unpaid interest charges, then such reasonable legal fees, including all fees and costs for appellate proceedings and all fees and costs incurred by Seller in collecting on any judgment shall be payable by Purchaser.
16. OTHER AGREEMENTS AND CANCELLATIONS: This agreement is the sole source of the obligations and rights between Purchaser and Seller. It is expressly agreed that there are no promises, agreements or understandings which are not included in the contract. Any claim of cancellation or modification of this contract must be mutually agreed upon in writing by both parties. Notwithstanding anything to the contrary contained in any contract document, general conditions or specifications, Seller shall not be subject to the general or special conditions, supplementary conditions, and provisions of the contract between the owner and the general contractor or any other documents unless specifically stated to be included herein on the face hereof. Acceptance of this proposal is expressly limited to the terms of this agreement. Any forms submitted by Purchaser shall be subject to and shall include the terms and conditions of this agreement and the terms continued herein shall supersede any inconsistent terms of Purchaser’s order.
17. BINDING EFFECT: This agreement shall be binding upon and inure to the benefit of the respective parties, their successors, representatives, and assigns. This agreement may not be assigned by Purchaser without the prior written consent of Seller. Only the Purchaser, its successors or assigns may present a claim for damages under this agreement. Any terms or conditions of this agreement prohibited by the statutes of any state or held invalid in any state shall be ineffective to the extent of such prohibition of invalidity without invalidating the remaining terms and conditions hereof.
18. APPLICABLE LAW AND DISPUTES: Any disputes arising under this agreement shall be governed by the laws of the State of Texas. Any litigation under this agreement, if commenced by Purchaser, shall exclusively be brought in the federal or state court for Dallas County, Texas.
19. DAMAGES: If Purchaser defaults hereunder or cancels this agreement before drawings or proposals have been approved by Purchaser or its representatives, Purchaser agrees to pay Seller equal to twenty (20) percent of the purchase price to be paid hereunder as settled and liquidated damages for Seller’s costs in the preparation of drawings or proposals and all sales expenses and costs, said amount is hereby agreed upon as settled and liquidated damages for all work rendered in the preparation by Seller of any and all plans and drawings. However, where Seller has received approved drawings or proposals and Purchaser cancels in whole or in part the within order, Purchaser agrees to pay the total price less Seller’s costs of manufacturing the remaining part of the order or the remaining material.
20. USE OF SELLER’S DRAWINGS: It is expressly understood by Purchaser that Seller’s drawings and details are solely intended to be used for the installation of the goods hereunder and are not intended to be used by any other trades, materialmen or subcontractors. Seller shall have no liability to Purchaser or any third parties in the event Seller’s drawings are furnished to or relied upon by other trades, materialmen or subcontractors.
21. MISCELLANEOUS TECHNICAL EXCLUSIONS AND REQUIREMENTS: Unless specifically included in the description of Seller’s products, Seller excludes from this agreement: weather stripping; thresholds; application of hardware; drilling and tapping for surface applied hardware; crating or boxing; protection after delivery; provisions for concealed closures; touching up or clean-up; installation and all other field labor; state and local taxes, use or similar taxes. All material will be factory prime painted (finish painting is not included). Seller shall not be responsible for scratches, abrasions or other damage to the prime finish after materials are delivered. For Purchaser’s protection it is suggested that all materials be properly stored in a dry area and protected from weather and other job conditions and that boxes be separated from each other.
22. NOTICES: All notices hereunder if required to be given to Seller shall be sent by certified mail return receipt requested to: Architectural Bling Inc. 1410 G Ave, Plano, TX 75074
23. FIRE RATING AND PRODUCT APPROVAL: Unless specifically included in the description of Seller's products, Seller assumes no responsibility for the fire rating or wind load testing of any product. Seller expressly disclaims and makes no representation that any products labeled as fire rated, wind load tested or approved by any jurisdictions building code by the manufacturer comply with any such requirements. Notwithstanding the provisions of any plans or specifications, Seller shall not be responsible for advising Purchaser whether or not any product application requires either fire rating, or wind load test. Purchaser shall be solely responsible for the selection of either fire rated or wind load tested products in consultation with the manufacturer of the product.