This order includes only standard material unless otherwise stated herein. Extech Building Materials, Inc. (hereinafter called “Seller” warrants that the material supplied hereunder shall conform to the description started herein; BUT SELLER MAKES NO WARRANTY OF MERCHANTABILITY OR THAT MATERIAL SUPPLIED HEREUNDER SHALL BE FIT FOR ANY PARTICULAR PURPOSE OR LOCAL CODE NOR IS THERE ANY OTHER WARRANTY EXPRESS OR IMPLIED, EXCEPT SUCH AS IS EXPRESSLY PROVIDED HEREUNDER. IT IS AGREED THAT SELLER’S LIABILITY FOR DAMAGES, WHETHER BASED ON SELLER’S NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANT OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE PARTICULAR SHIPMENT WITH RESPECT TO WHICH SUCH DAMAGES ARE CLAIMED AND SHALL NOT INCLUDE LIABILITY FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES.
Any tax or other government charge upon production, sale and/or shipment of goods sold under this quotation now imposed by Federal, State, or Municipal authorities or hereafter becoming effective within the period that this contact remains in force, shall be paid by the Buyer, unless an appropriate signed resale or other exemption certificate is supplied.
It is expressly understood Seller is not responsible for and will not be held liable for damage and/or injury caused to buildings, contents, products or persons by reason of negligence of the Buyer or any other party or its agent in the installation of any of the products sold to Buyer by Seller.
Seller may recover for each delivery hereunder as separate transaction, without reference to any other delivery. If Buyer be in default with respect to any of the terms or conditions of this or any other contract with Seller, Seller may, at its option, defer further deliveries hereunder until such default be remedied (in which event, if Seller so elects, the contract period should be deemed extended by time equal to that during which deliveries shall be so deferred), or, without prejudice to any other legal remedy, Seller may decline further performance hereof. Termination or suspension of contract or the retaking of materials under any of these conditions shall not prejudice any claims of Seller for price of materials, furnished, or for damages other than the reduction of any such claims by the value to Seller of any material retaken.
As to any goods sold hereunder, the buyer releases Seller from any liability hereunder for personal injuries, known or unknown and damage to property real or personal caused by or arising from the goods sold hereunder and agrees not to sue Seller under any theory or strict liability in tort, negligence, contract or claim or demand for personal injuries and property damage which in any manner arises out of the sale, use, application, transportation or otherwise of the good sold hereunder. The foregoing disclaimers of warranty and disclaimer of liability shall be binding upon Buyer and any successors in title, assigns transferees and ultimate users. Buyer hereby indemnifies and holds Seller harmless from any and all property damages or personal injury claims, awards or judgments including all fines, penalties and attorney fees of any kind arising from Seller’s sale and/or delivery of the goods under this contract. In such case any action by Buyer against Seller for breach of this contract or for any other cause, must be commenced within one (1) year of the date of delivery, or due date of delivery in the event of non-delivery of the particular shipment upon which such claim is based.
These terms and conditions of sale, together with the order form, which may also contain certain supplemental terms and conditions (collectively referred to as the “Agreement”), constitute the final written expression of all of the agreements between the parties, and is a complete and exclusive statement of those terms. It supersedes all understandings and negotiations concerning the purchase order. Any representations, promises, warranties or statements made by any party that differ in any way from the terms of this Agreement, including, but not limited to pricing, shall be given no force or effect. The pricing agreed to on the order form has been accepted by the Purchaser and shall not be modified by any course or dealing, usage of trade, custom, or otherwise. No addition to or modification of any provision of this Agreement shall be binding upon any party unless made in writing and signed by all parties.
A service charge/administrative fee of two percent per month will be charged on all overdue accounts, which shall be defined as all accounts remaining unpaid after thirty (30) days from the delivery of material to the Buyer, unless otherwise specified. In the event such rate should exceed the legally enforceable rate, Buyer will pay the maximum rate, which is legal and enforceable. In the event Seller directs the use of legal remedies to collect payment, the Buyer agrees to pay seller all costs and expenses, including legal fees incurred in the course of collection or pendency of the action.
Buyer agrees to pay the seller’s invoice(s) for all material specifically ordered or manufactured pursuant to this order in the event Buyer cancels this order at any time before the Seller’s completion of this contract.
This Agreement shall bind and inure to the benefit of the executors, administrators, successors, heirs and assigns of the parties.
Delivery of materials to carriers at F.O.B. shipping point shall constitute delivery to Buyer and materials shall be at Buyer’s risk thereafter. In the event Seller is requested to make delivery to Buyer, insurance and collective bargaining agreements may preclude delivery beyond tailboard or the pavement of the nearest public road adjacent to Buyer’s designated premises and Seller assumes no obligation to deliver beyond these points. If delivery is made beyond these points, Buyer assumes responsibility for property damage or personal injury caused by and to delivery vehicle, and agrees to indemnify Seller against and hold it harmless from loss damages, claims and liability including attorney’s fees, costs and disbursements.
Seller shall not under any circumstances be liable for any damages arising from delays in delivery of material.
Buyer shall immediately check and inspect materials on their arrival and if found short or damaged, shall file claim with the carrier and shall take full responsibility for collecting from the carrier for any damage or shortage occurring in transit. In the event of damage, defect, shortage or improper character of materials arising from error of the Seller, if Buyer shall give written notice by certified mail to Seller within three (3) days from receipt of the Buyer of the material from the carrier, the Seller shall recondition of replace any such material within reasonable time. Failure to give said three (3) days notice shall constitute waiver of any claim against Seller on account of any such damage, defect, shortage or improper character of materials. In no event shall the Seller be responsible for any damages arising from the use of improper, damaged or defective materials. No allowances will be made for labor, repairs, or alterations performed by the Buyer without the Seller’s written consent.
Should the need arise to return merchandise, the procedure is as follows: Please call our Customer Service Department and explain the problem. If a return is warranted, you will be given a Return Authorization Number. (Please make note of this number). All returns are subject to 20% handling charge. If the material is required to be picked up, a reasonable pick up charge will be applied. Please note, our driver cannot accept returns unless he has a written Authorization Form from the office prior to leaving for his run. This form cannot be written while the driver is making a delivery.
No returns after 30 days.
No returns on all natural or man made stone.
Seller reserves the right to make alterations, substitutions or changes of design or material without any obligation to replace products previously shipped with such altered, modified, substituted or redesigned products. Details in seller’s literature shall not be binding on Seller.
Failure by Seller to enforce Buyer’s compliance with any provision hereof shall not constitute waiver of that any other provision.
Orders for standard stock items may be cancelled up to three (3) days after submission of order. Orders for custom items are non-cancelable.
Any disputes arising out of our products shall at Extech Building Material, Inc.’s option be resolved by arbitration in accordance with the rules of the American Arbitration Association.