1. CREDIT APPROVAL:
This order is subject to approval of purchaser´s credit by TILE TECH®. The purchaser shall provide TILE TECH® with all necessary information requested to verify Purchaser´s credit. Failure to provide such information shall void this order without notice. Approval shall be at the sole discretion of TILE TECH®. This Acknowledgement shall be subject to any additional terms requested by TILE TECH® in order to approve Purchaser’s credit.
The terms and conditions of this Contract may not be modified in any way without the written consent of an office of TILE TECH®. All prior purchase orders, contracts, negotiations and representations, oral or written, made by or between Purchaser and/or TILE TECH® regarding this transaction are superseded by this contract.
Material in stock is offered subject to prior sale. All quotations are for immediate acceptance, or as stated on the face of this form, and are subject to change without notice. No sale or contract of sale for goods by TILE TECH® shall be binding upon TILE TECH® unless approved in writing by a corporate officer. Unless otherwise specified herein, freight and insurance charges from the place of manufacture or supply point shall be done by purchaser.
TILE TECH EXPRESSLY EXCLUDES AND DISCLAIMS ANY WARRANTY THAT THE GOODS COVERED BY THIS AGREEMENT ARE MERCHANTABLE OR FIT FOR ANY PARTICULAR PURPOSE, AND THERE ARE NO WARRANTIES, EXPRESSED OR IMPLIED, WHICH EXTEND BEYOND THE DESCRIPTION OF THE GOODS CONTAINED ON THE REVERSE SIDE HEREOF.
Any sample or model shown to Purchaser was shown for illustrative purposes only, and such sample or model shall not be deemed to create an express warranty that any of the goods covered by this agreement shall conform identically in all respects to such a sample. Actual fabricated product can vary from any sample provided, including, but not limited to, natural variations of raw materials. Any description, or illustration contained in TILE TECH´s catalogues, price lists or any other advertising materials are intended merely to present a general description of goods and shall not be deemed to create an express warranty that the goods shall conform to the description or illustration and shall not form a part of the order. Warranty shall not apply to pavers utilizing special aggregates (including but not limited to: stone, glass, minerals, crystals, particles, ETC.) in order to achieve custom or aesthetically designed effects.
5. LIMITATION OF LIABILITY:
In no event will TILE TECH® be liable for consequential, incidental, special or exemplary damages, including, without limitation, loss of profits, or revenues, loss of use of, or damage to, any associated equipment or materials, cost of capital, cost of substitute products, facilities or services, downtime or costs or claims of Purchaser´s customers or clients, whether based upon contract, tort, strict liability or otherwise. TILE TECH´s liability on any claim of any kind for any loss or damage arising out of, resulting from or concerning any aspect of this Acknowledgment, or any order relating hereto, or from any goods or services furnished hereunder, shall be limited to either of the following remedies (the elections of which shall be made solely by TILE TECH®): 1) replacement of the product and TILE TECH´s cost, said replacement to be manufactured by TILE TECH®, and shipped F.O.B. TILE TECH´s warehouse to the purchaser. Replacement as used herein shall mean the providing of substituted material only and shall not include any labor or installation in respect of such replacement; or 2) monetary payment by TILE TECH to the purchaser not to exceed the amount of the contract price of the ordered products excluding freight.
TILE TECH® assumes no responsibility for the performance, use, maintenance or repair of the goods covered hereby unless they are installed, used, maintained and repaired in strict compliance with all applicable building codes, architectural or engineering plans or specifications, any instructions or guidelines that have been provided by TILE TECH® and all applicable laws, regulations, statutes or ordinances. In the event Purchaser shall fail to install, maintain, use and repair, the goods as aforesaid, then Purchaser shall indemnify and hold harmless TILE TECH® and its successors and assigns from and against any and all costs (including counsel fees), loss (including incidental and consequential damages) and damages of any nature arising out of or resulting from any improper use, maintenance, installation or repair of the goods covered hereby or from any violation of any applicable law, regulation, statute or ordinance by the Purchaser, or on its behalf, or by its agents, employees, licensees, lessees, vendees, or direct or remote assigns. Said costs, loss and damages shall include, without limitation, liability arising from the injury, illness or death of any person or damage to or destruction of any property, whether said liability is premised upon contract, tort, strict liability or otherwise.
7. SHIPMENT, TITLE AND FREIGHT:
Shipping dates are approximate and are not guaranteed for a particular date or time. TILE TECH® shall not be liable for delay in shipment, or for failure to manufacture, due to causes beyond TILE TECH´s reasonable control including, without limitation, delays in receipt of or unavailability of materials, strikes, accident, riots, acts of God, acts of Purchaser, government action, embargoes, priorities and allocations. The date of delivery shall be extended for such time as may be reasonably necessary to enable TILE TECH® to ship. TILE TECH´s only duty in such case is to reasonably notify the Purchaser of the delay or non-delivery. If delivery is in installments, delay in delivery of any installment shall not relieve the Purchaser of its obligation to accept the remaining installments. If TILE TECH® is required to store in its facilities goods ordered by Purchaser for more than thirty (180)days after the scheduled delivery dates, there shall be any additional charge of $20.00 for each day in excess of the the thirty (30) day period. Unless it is expressly stated on the face of this Acknowledgment to the contrary, delivery shall be deemed completed upon delivery of the goods covered by this Acknowledgment at the place of manufacture to a common carrier designated by the Purchaser, or failing such designation, to any common carrier. Claims against the carrier must be made by the Purchaser. It is the responsibility of the Purchaser to check shipments for damage or shortage and to file a claim with the carrier. PURCHASER HEREBY GRANTS TO TILE TECH® AND TILE TECH® HEREBY RETAINS A SECURITY INTEREST IN THE GOODS UNTIL THE PURCHASE PRICE IS FULLY PAID. Risk of loss with respect to the goods shall pass to Purchaser when the goods are placed on the carrier at TILE TECH´S loading dock.
8. PAYMENT AND INTEREST:
No offset, back-charge, claim or deduction of any kind shall be withheld from any amount owed by Purchaser to TILE TECH® without the written consent of any officer of TILE TECH®. All amounts owed by Purchaser to TILE TECH® shall accrue interest at the rate of three (3%) percent per month, or the maximum rate permitted by law, whichever is less, from due date. Purchaser shall reimburse TILE TECH® for all costs of collection accrued by TILE TECH®, including, without limitation, attorney´s fees. Any monies received by TILE TECH® from Purchaser may be applied by TILE TECH® to any of Purchaser´s open accounts in any manner that TILE TECH® may determine.
If a payment bond or performance bond is issued applicable to a project for which TILE TECH® will be providing goods covered by this Acknowledgment, the Purchaser shall deliver a true copy of such bond to TILE TECH® prior to the commencement on any work hereunder by TILE TECH® and TILE TECH® shall have no obligation hereunder to commence work until it shall have received a true copy of such bond.
10. NOTICE OF NONCONFORMITY:
Purchaser shall inspect goods on receipt and make such measurements or tests with respect to the goods as are reasonably necessary to determine their compliance with this Acknowledgment before commencing installing or altering the goods in any respect. Purchaser shall notify TILE TECH® of all defects in goods within ten (10) days of discovery of same and within five (5) days if a shortage is claimed. Purchasers notice of nonconformity shall provide detailed information as to the nonconformity or shortage. Purchaser shall hold the goods for disposition and afford TILE TECH® a reasonable opportunity to inspect the goods. In no event shall the goods be returned without TILE TECH´s consent. Failure to inspect goods and/or otherwise comply with the terms of this paragraph shall constitute a waiver by the Purchaser of all claims in respect of any nonconformity or shortage of goods which would have been discoverable by reasonable inspection and shall be conclusive evidence that TILE TECH® has satisfactorily performed. Any action or remedy by the Purchaser arising out of this Acknowledgment for any breach thereof must be commenced by the Purchaser within one (1) year of the execution of the Acknowledgment.
11. CANCELLATION OR CHANGE:
TILE TECH®, and only TILE TECH®, may cancel this Acknowledgment and any order relating hereto if the Purchaser has become insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or if proceedings are commenced by or against the Purchaser in any jurisdiction under a provision or chapter of any bankruptcy act, or is the Purchaser suffers the appointment of a receiver or trustee or makes an assignment for the benefit of creditors. If Purchaser fails to comply with any term or condition hereof, TILE TECH®, and only TILE TECH®, may after giving three (3) days prior written notice, stop all work hereunder until such term or condition is complied with in full to its satisfaction. Two (2) such instances causing TILE TECH® to give notice to stop work shall give TILE TECH® the right to cancel this Acknowledgment and any order relating thereto without notice to Purchaser. Nothing herein shall prejudice any other remedy which TILE TECH® may have as a result of Purchaser breach. No part of this Acknowledgment or any order relating hereto may be cancelled, countermanded or modified for any reason by Purchaser, except with the express written consent of an officer of TILE TECH® and subject to the terms and conditions of this Acknowledgment. In the event TILE TECH® consents to a Purchaser’s request for cancellation or modification, the Purchaser shall pay to TILE TECH® the reasonable costs, (including freight costs of return), expenses, damages and loss of profit of TILE TECH® incurred thereby, and including, without limitation, the expenses caused by TILE TECH´s commitments to its suppliers or to TILE TECH® subcontractors, which shall in no event be less than twenty-five (25%) percent of the sales price for all goods so cancelled. A partial cancellation shall subject the entire order to price adjustment where quantity discounts were given based upon the volume of the entire order. In the event of change in specifications made by Purchaser, prices will be increased or decreased to correspond to the amount of material, labor, engineering, overhead, and other factors involved with due consideration for work done prior to the change.
12. TAXES AND DUTIES:
TILE TECH® prices do not include sales, use or similar taxes, duties, tariffs or other charges of any kind. Consequently, in addition to the price specified herein, Purchaser shall pay the amount of any present or future sales, use or similar taxes, excises, duties, tariffs, and other charges (including, without limitations, royalties) applicable to this Acknowledgment, or any order relating hereto, or the delivery, storage, manufacture, use or consumption of any goods covered hereby.
13. CHOICE OF LAW AND FORUM:
The laws of California shall govern all matters relating hereto or to any goods covered hereto or to any goods covered hereby. Any legal actions which may arise as a result of disputes, controversies, or claims arising out of or related to this Acknowledgment or any goods or services covered hereby shall be litigated in the Superior Court of Los Angeles County, California.
14. CONDITIONS OF AGREEMENT:
No terms or conditions other than those stated herein, and no agreement or understanding, oral or written, purporting to modify these terms or conditions whether contained in the Purchaser’s purchase or shipping release forms, or elsewhere, shall be binding on TILE TECH® unless hereafter made in writing and signed by an officer of TILE TECH®. No proposals, negotiations and representations, if any, made prior and with reference hereto shall have any effect unless expressed herein. No waiver by TILE TECH® of any breach or of any provision hereof shall constitute a waiver of that breach or that term at any subsequent time or of any other breach or term. Any stenographic, clerical or other errors which are obvious or which reasonably can be understood by the parties to be errors are subject to correction without penalty. If any provision or paragraph hereof is determined to be illegal or unenforceable, it shall not affect enforceability of any other provision or paragraph hereof.
Neither TILE TECH® nor Purchaser may assign this Acknowledgment nor any order relating hereto without the written consent of the other, except that this contract will automatically be assigned to any successor to TILE TECH® by reason of merger, consolidation, or sale of substantially all of the assets.
16. CONTROLLING DOCUMENT:
This Acknowledgment is the document which controls the terms of the transaction between TILE TECH® and Purchaser. In the event any other written document becomes integrated into the Purchase contract between TILE TECH® and the Purchaser, its terms shall be applicable only where they address provisions not provided in this Acknowledgment. Any ambiguity which might arise between the provisions of this Acknowledgment and any other document which may become integrated into the contract between TILE TECH® and the Purchaser shall be resolved in favor of the Acknowledgment and any other document which may become integrated into Purchaser and TILE TECH® shall have no cumulative effect where such provision addresses a right, remedy or requirement otherwise addressed in this Acknowledgment, but rather, such provision shall be superseded by the appropriate provision contained in this Acknowledgment.