1. Surfaces Southeast, Inc. shall herein be referred to as Seller.
2. Purchaser agrees to buy and accept delivery of the merchandise described on the reverse side hereof to Purchaser upon the terms and conditions stated herein.
3. Purchaser hereby grants and conveys to Seller a purchase money security interest in the merchandise described on the front side hereof until the purchaser price for said merchandise is fully paid in cash, in the case of default by Purchaser, Seller shall be entitled to a re-take and repossess the merchandise without demand and without process of law and for this purpose may enter upon the premises where said merchandise may be and remove same at its option and Seller shall further be entitled to avail itself of any other remedy available to it under Florida Law. At the request of the Seller, Purchaser will execute one or more financing statements pursuant to the Uniform Commercial Code inform satisfactory to Seller and will pay the cost of filing the same wherever filing is deemed necessary or desirable by Seller. Purchaser agrees, however, that Seller, at Seller’s option, may elect to consider the merchandise as reality instead of personality and enforce whatever lien rights may be available to Seller under the law against any reality in which said merchandise may be attached or become apart of any unpaid balance on labor, materials, or the Contract price shall constitute a lien on the premises wherever they may be used, at Seller’s option. No loss, damage, or destruction of the merchandise described on the front side hereof shall release Purchaser from his obligations hereunder.
4. Terms of payment are net on invoicing unless otherwise specified herein. All sums not paid when due shall bear interest at the maximum legal rate allowed by law and shall be payable on the first day of each month. In the event payment due hereunder has to be collected upon demand of an attorney, or collection agency or suit has to be instituted for the enforcement hereof, the Purchaser agrees to pay all costs and expenses thereof including, without limitation, reasonable attorney’s fees (including appellate attorney’s fees, collection fees) and court costs.
5. All merchandise is sold subject to a variation in shade. All glazed tile is sold subject to abrasion and caution should be used regarding proper installation thereof. SELLER IS NOT RESPONSIBLE FOR, SHALL HAVE NO LIABILITY, AND DOES NOT WARRANT AGAINST: Shade variation, crazing, scratching or wear on tile surfaces; defects discovered after installation or alteration of the tile or other materials; abrasion on installed tile; slipping, mishap, or other injury due to the surfaces characteristics of the tile.
6. LIMITED WARRANTY ALL MERCHANDISE SOLD BY SELLER IS SOLD AS IS AND THER IS NO WARRANTY, EXPRESSED OR IMPLIED, OF MERCHANTIBILITY OR FITNESS, OR ANY OTHER EXPRESSED, IMPLIED OR STATUTORY WARRANTY. Claims for errors or defects in material and/ or workmanship will not be allowed unless the Seller is given an opportunity to investigate and correct the alleged errors and defects. Purchaser hereby agrees to accept as binding and conclusive the reasonable determination made by Seller with respect to any and all claims as herein described with regards to the causative factors and responsibility for the errors or defects cited by Purchaser in a claim. Any claims for errors or defects in material and/or workmanship must be made in writing and received by Seller at Seller’s address as reflected on the front side hereof within ten (10) days after delivery of the merchandise to the Purchaser. Not withstanding the foregoing, no claims for errors or defects in material and/or workmanship will be allowed after the merchandise has been installed. In the event a claim is made by Purchaser within the time required and it is determined by the Seller that such claim is based on a defect or error in material and/or workmanship, it is understood and agreed that Purchaser’s sole and exclusive remedy is the replacement of like kind merchandise for the defective merchandise or repair of the defective merchandise, at the discretion of Seller; but in no event shall Seller’s liability exceed Seller’s cost of the merchandise claimed to be defective. It is understood and agreed by Purchaser that in no event shall Seller be liable for direct, resultant, incidental, consequential or any other damages, arising from any error or defect in material and/or workmanship.
7. Failure of Seller to enforce any of the conditions of this Contract shall not constitute nor be construed as a waiver of any other requirement of the provisions of the Contract.
8. This Contract or invoice shall be governed by the law of the State of Florida.
9. Seller shall not be liable for delays caused conditions beyond its control including, but not limited to, delays in production or shipping and delays caused by strikes or accidents.
10. The terms and conditions set forth herein constitute the entire agreement of the parties which may be modified only by an instrument in writing and signed by Seller and Purchaser. Purchaser agrees to pay Seller interest at the highest rate allowable by law on all sums not paid when due. Interest shall be payable monthly on the first day of each month.
11. Seller will store merchandise free of charge for seven (7) days after receiving payment in full. A storage charge of $5.00 per pallet of up to 45 cartons will be assessed for each week or part thereof until the merchandise is picked up. After the merchandise has been invoiced by Seller and Seller agrees to store the merchandise for Purchaser, Seller shall have no obligation or liability for any loss or damage to the merchandise, except loss or damage caused by the gross negligence of Seller. The title to the merchandise and risk of loss passes on issuance of invoice.
12. The merchandise covered by this Contract is ordered to conform with Purchaser’s requirements, this order is not cancellable by Purchaser after acceptance by Seller. 13. Prices set forth on the front side hereof are predicated upon current costs and are subject to adjustment by Seller, due to increase in storage charges and increase in other costs occurring subsequent to the date of this Contract and prior to the date of delivery of the merchandise to Purchaser.
14. No statement, representation or agreement, written or verbal, not appearing on this Contract or on an executed addendum affixed hereto is binding or acceptable. Upon acceptance of this Contract by an Authorized Agent of Seller, this Contract shall be binding upon the heirs, personal representatives, successors and assigns of the perspective parties hereto.
15. Seller hereby reserves the right to cancel any portion of this Contract once accepted by Seller in the even the merchandise is unavailable at the time of requested delivery, or may substitute other merchandise of similar quality and nature. All agreements herein imposed Seller shall be subject to strikes, accidents, acts of God, weather conditions, inability to secure labor or material, governmental regulations and requirements and other factors beyond the Seller’s control, which prevent or delay performance by Seller and the delivery dates as the case may be, shall be extended for a period equal to the time lost by reason of such delay. Seller shall not be liable for incidental consequential, direct or other damages incurred by Purchaser as a result of any type of a delay, whether due to the causes herein set forth or otherwise.
16. If Purchaser shall fail to do any of the several things required to Purchaser within the time allowed, or if no time is specified, within a reasonable time, this Contract may, at the option of the Seller be terminated and the Purchaser’s deposit or deposits made hereunder shall be deemed as liquidated and agreed upon damages and as consideration for the execution of this Contract by Seller and all obligations and duties of the parties hereto shall cease; or Seller may seek to specifically enforce this Contract against the Purchaser or may sue Purchaser for all damages suffered as a result of Purchaser’s default hereunder.
17. Unless otherwise provided on the front side hereof, all merchandise is sold F.O.B. Seller’s address as set forth on the front side hereof if this Contract provided for the sale of merchandise only.
18. Seller will hold available merchandise with 50% deposit for a maximum of fifteen (15) days. The Contract is subject to cancellation and “Administrative Handling” charge of 20% of Contract total or deposit amount, whichever is greater, if not paid in full within 15 days from availability date. Paragraphs 1 through 11, inclusive of theTERMS AND CONDITIONS herein apply whether the document relates to an invoice or a contract. Paragraph 12 through 18, inclusive, of the TERMS AND CONDITIONS herein apply only if this document relates to a contract. INVOICE TERMS: SELLER IS NOT RESPONSIBLE FOR, AND DOES NOT WARRANT AGAINST : shade variation; crazing; scratching or wear on tile surface without separate written guarantee; defects discovered after installation or alteration of the tile or other materials; abrasion on installed glazed, slipping, mishap, or other injury due to surface characteristics of tile. NO WARRANTIES OF MERCANTIBLITY, OF FITNESS, OR ANY OTHER KIND, EXPRESS OR IMPLIED, ARE MADE. All claims for shortage, damage or defects or quality must be made at time of delivery. All returns are subject to a 25% restocking charge. Seller’s responsibility is limited to the purchase price and any claim for consequential damages is hereby waived by buyer. Seller can not be responsible for delays caused by conditions beyond its control, including but not limited to; delays in production or shipping, and delays caused by strikes or accidents. Incase of default, purchaser agrees to pay all costs of collection including reasonable attorney’s fees. The terms and conditions set forth herein constitute the entire agreement which may not be modified orally. Buyer agrees to pay Seller interest at the highest rate allowable by law on all sums not paid when due. ATTENTION. a. Variations in shade are inherent in all kilnire clay products. Tiles are classified according to these variations. Whenever possible, the tonality (shading) is clearly indicated by the manufacturer. b. Advise your tile setter about this occurrence and mix the tiles from different boxes before installation. c. No refunds will be issued 10 days after delivery.
This entry was posted on Tuesday, September 21st, 2010 at 9:09 am.