(EFFECTIVE July 27, 2018)
Definitions: Where the context permits, the following words shall have the meanings indicated:
“Agreement” means this General Terms and Conditions of Sale.
“Buyer” means the person, partnership, company, corporation or other entity purchasing the Product from Seller.“Delivery Point” means the street address specified in the applicable purchase order.
“Online Portal” means Seller’s online ordering portal accessed at https://www.assurawindows.com.
“Product” means the product(s) being sold by Seller to Buyer pursuant to these Terms.
“Seller” means Assura Windows and Doors, LLC.
Applicability: The terms and conditions (these “Terms”) of this Agreement are the only terms which govern the sale of Product by Seller to Buyer. Seller’s performance under any proposal or order is made expressly conditional upon Buyer’s agreement to suchterms and conditions. By submitting a purchase order, Buyer agrees to be subject to these Terms in their entirety.
These Terms constitute the entire agreement between the Seller and Buyer and supersede all prior or contemporaneous negotiations, representations and warranties, communications and agreements, both oral and written. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer hassubmitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
Pricing: Prices of Product exclude all taxes, including, without limitation, sales, use, and excise taxes. Prices of Product exported, exclude duties, freight, shipping, insurance, and all taxes, including, without limitation, sales, use, and excise taxes. Prices are valid for thirty (30) days from the date of Seller’s quote (the “Quote”) unless otherwise stated (the “Quote Period”). Except as set forth below, the Quote will apply to the purchase order submitted by Buyer before the expiration of the Quote Period. Notwithstanding the foregoing, any alteration or additions to a Buyer’s order may alter the pricing set forth in the Quote. All Quotes will be in U.S. dollars.
Order Process: Buyer shall initiate all purchase orders via Buyer’s dashboard available through the Online Portal, or in written form via facsimile, email, or U.S. mail. If requested by Seller at Seller’s sole discretion, a purchase order shall be accompanied by Buyer’sproof of insurance coverage, “Notice of Commencement”, bonding and/or “Notice to Owner” documentation. Seller may, in its sole discretion, accept or reject any purchase order, but Seller will not accept any purchase order until the Down Payment (defined below) is received by Seller. Seller’s acceptance of a Buyer’s submitted purchase order may be reflected in Buyer’s dashboard availablethrough the Online Portal. No purchase order is binding on Seller unless accepted by Seller as provided in this Agreement. Buyer has no right to cancel or amend any purchase order submitted by it. Seller may, in its sole discretion, without liability or penalty, cancel any purchase order placed by Buyer and accepted by Seller, in whole or in part, if Seller determines that Buyer is in violation of its payment obligations under the applicable purchase order or any other purchase order, or is in breach of this Agreement.
Payment Terms: Unless otherwise specifically agreed to in writing by an authorized representative of Seller, payments on all purchase orders are due as follows:
- 50% of the purchase price due with Buyer’s submission of purchase order (“Down Payment”); and
- 50% of the purchase price due upon Seller’s notice to Buyer that Product (whether partial or full) is ready forshipment (“BBS Payment”).Buyer shall make all payments hereunder by wire transfer or check and in U.S. dollars. If the Down Payment is not paid within seven (7) days of Buyer’s submission of purchase order and the Quote Period has expired, the Pricing shall be subject to any updates reflected in the new Quote Period. If the BBS payment is not paid within seven (7) days of Seller’s notification that Product is readyfor shipment, the BBS payment shall be deemed late, and Seller shall have all remedies hereunder for late payment. Notwithstanding the foregoing, Seller may, in its sole discretion, require such other payment terms as it deems appropriate, including but not limited to full or partial payment in advance of order acceptance or shipment. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month (APR 18%) or the maximum interest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and court costs.Seller reserves the right, in its sole discretion and without any liability or penalty, to withhold Product from shipment in the event Buyer has not paid the purchase price in full, and such withholding constitutes a “Mitigating Circumstance” as hereinafter defined. Further, Seller reserves the right, in its sole discretion and without any liability or penalty, to withhold and/or delay processing any or all accepted purchase orders until Buyer has paid all outstanding balances then due Seller under any and all purchase orders, and suchwithholding and/or delay constitutes a “Mitigating Circumstance” hereunder.Buyer’s order shall be deemed a representation that Buyer is solvent and able to pay for Product ordered and all then outstanding balances on all other purchase orders placed with Seller.Buyer shall have no right to withhold payment of any amounts due and payable Seller under any purchase order, whether by set-off, any claim or dispute with Seller on any purchase order, or Seller’s breach, bankruptcy or otherwise.Buyer is responsible for all credit risks regarding, and for collecting payment for, all Product sold to third parties, whether or not Buyer has made full payment to Seller for the Product. The inability of Buyer to collect the purchase price for any Product does notaffect Buyer’s obligation to pay Seller for any Product.Notice To Owner: Seller, in its sole discretion, reserves the right to issue a Notice to Owner on any order.Buyer’s Default: In the event Buyer (i) fails to perform any obligation under this Agreement or under any other agreement with Seller in a timely manner, (ii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings related to bankruptcy, receivership, reorganization or assignment for the benefit of creditors (each of the foregoing a“Default”), Seller shall be entitled, in its sole discretion, and in addition to any other remedies and rights hereunder, in equity or at law, to suspend shipment of any or all Product to Buyer, recall and repossess any Product in transit, repossess all Product that may be stored with Seller for Buyer’s account without the necessity of taking any other action or seeking court approval, cancel any orders then outstanding for the sale of Product to Buyer, and/or terminate this Agreement with immediate effect. Buyer agrees to defend, protect, indemnify and hold Seller harmless from and against all claims, losses, expenses, including any attorney’s fees and costs incurred in connection with Seller’s enforcement of its rights under this Agreement, relating to any Default. The foregoing shall not be construed as limiting any other rights or remedies of law or in equity that are available to Seller because of any Default, including, but not limited to, rights to assert any mechanics’ lien, construction lien, lien on funds, stop notice claim, trust fund claim, payment bond claim or any similar claim. Buyer acknowledges that all orders are custom in nature and in the event of a Buyer default, Seller shall have a claim for the full value of the order without any offset or mitigation.Indemnity: Buyer shall defend, protect, indemnify and hold harmless Seller, its officers, shareholders, directors, employees, agents, successors and assigns, from and against any and all claims, losses, expenses (including attorney’s fees and costs), suits, actions, damages and liabilities in respect of injury (including death) to any persons or loss or damage to any real or tangible property which may arise out of the negligent or intentional act or omission of Buyer, its contractors, employees or agents, in connection with the Product.
Shipment and Delivery: Seller shall not be liable to Buyer or any third party for any damages or costs related to any delay in delivering Product after any estimated delivery date. Estimated delivery dates are estimates only as anticipated at the time of acceptance of the purchase order and are not representations or warranties by Seller that Product will be delivered by any su ch date. No delay in delivery, regardless of the cause, shall constitute grounds for Buyer’s termination of any transactioncontemplated by this Agreement. Unless expressly agreed to by the parties in the approved purchase order, all Product shall be shipped FOB (Delivery Point), and the Price of Product shall include shipping and insurance charges, as applicable. Seller will use Seller’s standard methods for packaging and shipping Products. Product will not be shipped by Seller until Buyer has paid the applicable BBS Payment. Buyer shall be responsible for all unloading costs and provide equipment and labor reasonably suited for receipt and unloading of Product at the Delivery Point. If for any reason Buyer fails to accept delivery of any Product on the scheduled delivery date pursuant to Seller’s notice that Product is being delivered at the Delivery Point: (i) risk of loss to the Product will pass to Buyer; (ii) the Product shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Product until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, stora ge and insurance).
Title and risk of loss passes to Buyer upon delivery of Product at the Delivery Point. As collateral security for the payment of the purchase price of the Product, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Product, wherever located, and whether now existing or hereafter arising or acquired from time to time, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this prov ision constitutes a purchase money security interest under the Florida Uniform Commercial Code.
Delays in Delivery: If Seller’s delivery of Product is delayed by more than sixty (60) days from the estimated delivery date set forth in the approved purchase order, and such delay is not caused in any manner by a Mitigating Circumstance, Seller shall provide Buyer a three percent (3%) discount on the total purchase price of the Product so delayed. If Seller’s delivery is delayed more than ninety (90) days from the estimated delivery date set forth in the approved purchase order, and such delay is not caused in any manner by a Mitigating Circumstance, Seller shall provide Buyer an additional five (5%) discount on the total purchase price of the Product so delayed. For purposes hereof, a “Mitigating Circumstance” is any prevention, delay or stoppage of or in the performance by Seller of its manufacturing and delivery of Product hereunder due to strikes, lockouts, labor disputes, acts of God, inability to obtain services, labor or materials, governmental actions, civil commotions, acts of war or terrorism, fire or other casualty, transportation delays,Buyer’s failure to take receipt of the Product upon delivery, and all other causes beyond Seller’s reasonable control.
Taxes: All applicable federal, state or local sales, use, occupational, or excise taxes are the obligation of Buyer and shall be in addition to the price or prices stated unless specifically agreed to in a separate writing signed by an authorized representative of Seller. Seller shall have the right to invoice separately any such tax as may be imposed and Buyer shall promptly pay such tax. Seller shall be entitled to collect any such tax unless a current, signed applicable tax exemption certificate is furnished by Buyer to Seller on an annual basis, as required by law.
Acceptance; Inspection; Rejection of Nonconforming Products: Buyer agrees to sign a proof of delivery acknowledging receipt and delivery of Product. Buyer will be deemed to have accepted Product upon delivery unless Buyer, within forty-eight (48) hours of such delivery, (i) notifies Seller of any defects, damage, or failure to conform to the specifications expressly set forth in the approved purchase order (“Nonconforming Product”) by contacting Customer Service at (954) 781-4430, and (ii) in writing. If Buyer timely notifies Seller of any Nonconforming Product, Seller, in Seller’s sole discretion and subject to Seller’s confirmation that such Product is damaged, defective, or nonconforming, will (x) replace such Nonconforming Product with conforming Product, (y) send a service technician to correct the Nonconforming Product, or (z) credit or refund the price for such Nonconforming Product. All Nonconforming Product that is not otherwise corrected by Seller shall be packaged and returned by Buyer, at Buyer’s expense andrisk of loss, to Seller’s facility located at 1543 N. Powerline Rd. Pompano Beach, Florida 33069, so that Seller may inspect and confirm damage and defects. If Seller exercises its option to replace Nonconforming Product, Seller shall, after receiving Buyer’s shipment of Nonconforming Product, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Product to the Delivery Point. Returned Nonconforming Product is to be packaged by Buyer to prevent further damage. Failure to properly package Nonconforming Product may result in denial of returned Product. Returned Nonconforming Product is not to be deducted from Buyer’s remittance until Buyer is notified by Seller of credit. Processing usually will take approximately thirty (30) days. An RGA Form is valid forthirty (30) days from the date of Buyer’s issue. The remedies set forth in this paragraph shall be Buyer’s sole and exclusive remedy and Seller’s entire liability for the delivery of damaged, defective, or nonconforming Product.
Buyer must not install damaged, defective, or nonconforming Product. By installing any Product, Buyer acknowledges that the Product meets specifications and is fit for its intended purpose, and that Buyer shall be responsible and liable, at its sole cost and expense, for removing and replacing, if applicable, any damaged, defective, or nonconforming Product installed by Buyer. Seller shall have no liability to Buyer or any third party for any damages resulting from Buyer’s installation of damaged, defective, or nonconforming Product.
After acceptance by Buyer, no Product may be returned to Seller. Buyer may not refuse delivery of and Seller will not accept returns for purchase orders that are placed incorrectly by Buyer. Product returns are strictly limited to errors solely caused by Seller.
Suitability: Determining the suitability and compliance with local or other applicable building codes or standards, of all building components, including the use of any Product, and the design and installation of any flashing or sealing system, is the responsibility of the Buyer, user, architect, contractor, dealer, installer, and/or construction professional. Seller will not be liable for any problem or damage relating to inappropriate or faulty building design or construction, maintenance, installation, or selection of products. Windows and doors are only one element of a structure; Seller does not warrant that third-party certification of a building or project to any specific standard will be achieved through the use of any Product.
Intellectual Property: Seller shall retain sole ownership of all right, title, and interest in and to all of its intellectual property, including, without limitation, content and materials on its website, ideas, methods, trademarks, service marks, trade names, symbols, logos, copyrights, patents, trade secrets, and know-how (collectively, the “Intellectual Property”), and no licenses to any IntellectualProperty are created hereunder.
Special Orders: If any Product shall be fabricated or manufactured by Seller under this Agreement to meet Buyer’s particular specifications or requirements, Buyer agrees to defend, protect and hold harmless Seller against all suits of law or in equity and from all damages, claims, demands and expenses, including its attorney’s fees and costs, for actual or alleged infringement of any United States or foreign patent, copyright, trademark or other proprietary right or claim of unfair trade, unfair competition or any other claim, and to defend any suit or action that may be brought against Seller for any alleged infringement because of the manufacture or fabrication of the Product.
Warranty: No warranty is extended to Buyer under this Agreement. Product will be covered by a Limited Warranty (the “Limited Warranty”) granted solely to and for the end user’s benefit, which will either be (i) included as a written warranty statement with theProduct, or (ii) Seller’s standard limited warranty in force when the Product is delivered by Buyer to the end-user, as set out in thewritten warranty statement on Seller’s website: www.assuralimitedwarranty.com.
EXCEPT FOR THE LIMITED WARRANTY DEFINED ABOVE, (1) NEITHER SELLER NOR ANY PERSON ONSELLER’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTYWHATSOEVER WITH RESPECT TO THE PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; or (e) WARRANTY OF PERFORMANCE OF PRODUCTS TO STANDARDS SPECIFIC TO THE COUNTRY OF IMPORT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (2) BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY SELLER OR ANY OTHER PERSON ON SELLER’S BEHALF.
LIMITATION OF LIABILITY:
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY TO BUYER AND ANY THIRD PARTY EXCEED THE TOTAL AMOUNT PAID TO SELLER FOR THE PRODUCT AT ISSUE.
Assignment: None of the rights accruing hereunder may be assigned or otherwise transferred by Buyer without the prior written consent of Seller, which may be withheld in Seller’s sole discretion, and any such assignment or transfer without such prior written consent shall be null and void and of no force or effect whatsoever.
Notice: All notices required or permitted to be sent to Seller or Buyer shall be given in the English language, in writing, and shall be deemed duly delivered when received via: (i) e-mail, provided that a written copy of such notice is promptly delivered thereafter; (ii) facsimile, provided that a written copy of such notice is promptly delivered thereafter; or (iii) a recognized commercial overnight courier service. All such notices shall be sent to the parties at such addresses as they shall make known to the other parties in writing upon like notice.
Waiver: Seller’s failure to insist, on one or more instances, upon the performance of any provision of this Agreement shall not be construed as a waiver or relinquishment of its right to such performance or the failure of such provision or of any other provision, and Buyer’s obligations with respect thereto shall continue in full force and effect. Seller’s rights and remedies under any provision of this Agreement shall be in addition to and not in substitution of any other rights and remedies available to Seller under applicable law.
Headings: The headings used in this Agreement are for convenience of reference only and shall in no way define, limit or describe the scope or intent of any provision of this Agreement.
Severability: In the event any of the terms and conditions contained herein is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other term or condition. If any provision hereof is found to be ambiguous or in conflict with any other provision hereof, such ambiguity or conflict shall be resolved in the manner which provides the greatest protection and limitation of liability to Seller.
Governing Law; Dispute Resolution: All transactions to which these Terms apply and any disputes, controversies, or litigation arising directly or indirectly hereunder or from any other agreement between the parties shall be governed by and construed in accordance with the laws of the State of Florida, United States of America, without reference to any choice of law provision that would cause the application of the laws of any jurisdiction other than the laws of Florida. Any legal action with respect to any such transactions must be commenced within two years after the cause of action has accrued. All limitations herein on Seller’s liability and remedies for breach of any duty of Seller to Buyer or any other user of Seller’s Products are extended to Seller’s affiliates, suppliers, distributors, and service providers, insofar as they may have any duties to Buyer or any other user of Seller’s Products.
The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
Any dispute arising out of or relating to the transactions to which these Terms apply shall be finally settled by binding arbitration in Miami, Florida, administered by the American Arbitration Association under its Commercial Arbitration Rules then in affect, as modified or supplemented hereby, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The tribunal shall consist of a sole neutral arbitrator, who must be a practicing or retired attorney. The language of the arbitration shall be English. The arbitrator shall award attorneys’ fees and expenses to the prevailing party. The arbitrator shall be prohibited from granting any relief that is inconsistent with these terms and conditions. The award shall be final and binding, and judgment on the award may be entered in any court having competent jurisdiction to do so.
Notwithstanding the foregoing, Seller reserves the right, at its option, to alternatively bring any action or proceeding for non-payment by Buyer of any amounts owed to Seller (including, without limitation, any amounts owed to Seller for Products sold to Buyer orpursuant to Buyer’s indemnification obligations hereunder) in the courts of Buyer’s jurisdiction. Buyer voluntarily and irrevocably submits to the jurisdiction of such court in any such action or proceeding and waives any objection it may now or hereafter have to venue or to convenience of forum. Each of Seller and Buyer waives any right it may have to a jury trial with respect to any dispute arising out of or related to the transactions to which these Terms apply. Process in any arbitration or proceedings may be served on any party anywhere in the world by notice given to the party in accordance with these terms and conditions.
The parties agree to arbitrate solely on an individual basis, and that this Agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitral tribunal may not consolidate
more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. Buyer’srejection of these arbitration provisions must be sent to Seller within thirty (30) days of submitting a purchase order to Seller.
Attorneys’ Fees: If, at any time or times, Seller incurs legal expenses or other costs or expenses in connection with enforcing or protecting its rights under this Agreement, whether before or during the existence of any formal legal proceeding, then, the expenses and costs (including, without limitation, attorneys’ fees) incurred by Seller shall be payable by Buyer on demand and shall be considered additional obligations hereunder secured by the security interest granted to Seller hereunder.
International: Seller, in its sole discretion, may agree to use commercially reasonable efforts to obtain any required export authorization to ship Products to a country specified in Buyer’s purchase order (the “Named Country”), subject to Buyer providinginformation, documents and all other assistance required for such authorization. Seller shall not be liable for failure to perform arising from delay or failure to grant such authorization. Buyer, at Buyer’s expense, is responsible for obtaining any required import authorization. Notwithstanding the foregoing, Buyer assumes all responsibility, at Buyer’s expense, for obtaining any required export or import authorization. Buyer also assumes all responsibility, at Buyer’s expense, for obtaining any required export or import authorizations for any Products exported from the Named Country. Buyer agrees not to export any Products in violation of applicable export or import regulations.
No shipping containers may be returned to Seller unless Seller approves the return in advance in writing and Buyer pays all expenses of the return freight.
Relationship of Parties; No Business Opportunity: Seller and Buyer shall be independent contractors pursuant to this Agreement. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between Seller and Buyer. Neither party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other party. Nothing in this Agreement shall be deemed or constructed as creating a business opportunity relationship between Seller and Buyer. If any provision of this Agreement is deemed to create a business opportunity relationship between the parties, then Seller may immediately terminate this Agreement.