TERMS AND CONDITIONS OF INVOICE
1. AGREEMENT: In consideration of Brenco, LLC dba Brenco Exotic Woods ("Seller") agreeing to sell to the Buyer, the Buyer agrees as follows: The terms and conditions of this Invoice together with the terms and conditions of any other credit application, quotation, confirmation and/or invoice prepared by Seller constitute the agreement between the parties (the "Agreement"). Buyer agrees to each and every term contained in the Agreement as a precondition to Seller's performance. Any term or condition in any purchase order or other form or document issued by Buyer, regardless of the materiality of the term or condition, that differs from or is contrary to the terms and conditions contained in the Agreement are objected to and excluded unless expressly agreed to in a written acknowledgment issued by Seller. No other terms or conditions not set forth in the Agreement shall apply unless expressly agreed to in a written acknowledgment issued by Seller.
2. PAYMENT: Payment in Advance before delivery. If Brenco ships prior to payment, buyer is responsible for payment upon receipt of invoice. If invoice is not paid within 30 days of invoice date, a time-price differential charge equal to 1.7% per month (20.4% per annum) will be charged on all balances not paid in full. If Buyer's financial responsibility shall become unsatisfactory to Seller at any time and for any reason, Seller shall have the right, in addition to whatever other rights Seller may have at law or equity, to require payment in cash or to obtain satisfactory security from Buyer before making any further deliveries. In case any payment is not made when due, Seller shall have the right, in addition to its other remedies, to seek specific performance of this Agreement, to suspend any further deliveries, alter payment terms, or terminate this Agreement. Approval of credit for one or more deliveries shall not be deemed a waiver of this provision.
3. Disclaimer of Warranties. SELLER DISCLAIMS ALL WARRANTIES IN CONNECTION WITH THE GOODS, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION DESCRIPTION, QUALITY, DESIGN, PERFORMANCE, SPECIFICATIONS, CONDITION, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. BUYER ACKNOWLEDGES THAT BUYER IS NOT RELYING ON SELLER'S SKILL OR JUDGMENT TO SELECT OR FURNISH GOODS SUITABLE FOR ANY PARTICULAR PURPOSE. NO PERSON, INCLUDING BUYER, IS AUTHORIZED BY SELLER TO MAKE WARRANTIES OR ASSUME ANY LIABILITY FOR SELLER WITH RESPECT TO THE GOODS OR SERVICES. ORAL STATEMENTS DO NOT CONSTITUTE WARRANTIES AND SHALL NOT BE RELIED ON BY BUYER AND ARE NOT PART OF THE AGREEMENT. SELLER'S WARRANTY OBLIGATIONS, AND BUYER'S REMEDY, ARE SOLELY AS STATED IN THIS AGREEMENT. IN ADDITION, AND WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMERS ABOVE, SELLER ASSUMES NO LIABILITY WHATSOEVER FOR MATERIAL ORDERED WITH ONE OR MORE UN-TIGHTENED FLANGES. Brenco Exotic Woods Solid Pre-Finish Hardwood Flooring Installation, Care and Warranty Guide, Brenco Exotic Woods Prefinished Engineered Hardwood Flooring Warranty, Brenco Exotic Woods Prefinished Solid Wood Flooring Warranty, and Brenco Exotic Woods Special Instructions for Installations over Radiant Heat Systems.
4. NOTICE OF CLAIMS. Buyer shall inspect the products immediately upon delivery. Notice of any claim for shortage or defects shall be made to Seller within five (5) days after delivery. Buyer agrees that this 5-day inspection period is reasonable and allows it sufficient time to inspect the goods and/or obtain the necessary inspection by other parties. If, within the 5-day inspection period, Buyer provides to Seller, in writing, satisfactory evidence establishing a defect or non-conformity in the goods, then, subject to the limitations set forth in this Agreement, Seller, in the exercise of its sole discretion, shall have 21 days to either remedy the defect or non-conformity, or accept return of the goods. The failure of the Buyer to provide written notice of a defect or non-conformity in the goods within 5 days following delivery shall constitute acceptance of the goods and an absolute and unconditional waiver of any claim relating to defect or non-conformity in the goods.
5. RESTOCKING FEE: Except as expressly set forth herein, Buyer may not return any products without Seller's written consent. All returns are subject to a restocking fee/handling charge of 30% of sale, which may change from time to time. Contact Seller to determine the exact amount.
6. FORCE MAJEURE: Seller shall not be liable for any delay or impairment of performance resulting in whole or in part from any cause beyond Seller's control including, without limitation, fires, floods, explosions, terrorism, accidents or other catastrophes, acts of God, strikes, lockouts or labor disruption, wars, riots or embargo delays, government allocations or priorities, shortages of transportation, fuel, labor or materials, inability to procure the products or raw materials, severe weather conditions, changes of law or regulation, or any other circumstance or cause beyond Seller's control. Such excuse from performance shall extend so long as the event continues to delay or impair Seller's performance.
7. FIELD REPRESENTATIONS: The services of Seller's representatives in the field are offered on request and when personnel are available for such period of time and for such charge as Seller deems appropriate. Any such service is offered only on the condition that Seller shall not be deemed to have approved of, or in any manner to have assumed responsibility for, the engineering, design, supervision, inspection, or quality of the workmanship of the job. In addition, Buyer agrees that it is in exclusive control of the means and methods of installation of the goods. IN NO EVENT SHALL THE SERVICES OR STATEMENTS OF SELLER'S REPRESENTATIVE CREATE A WARRANTY, EXPRESS OR IMPLIED, OR ANY OTHER OBLIGATION WITH RESPECT TO ANY PRODUCT OR SERVICE OF SELLER.
8. SECURITY INTEREST: Title to the products sold pursuant to the Agreement shall remain with Seller until all payments therefore shall have been made in full in cash. Seller shall retain a security interest in the Products and the proceeds thereof as security for Buyer's performance of its obligations. Buyer hereby authorizes Seller to create and file a financing statement. Buyer agrees to execute and deliver such other documents necessary to create, perfect, preserve or enforce such security interest.
9. LIMITATION OF LIABILITY:
a. Exclusive Remedy. The exclusive remedy for the Buyer for any damages incurred as a result of the Agreement is limited to the return of the purchase price of the goods. In no event shall Seller be liable to Buyer or any other person or entity for damages of any kind, including, without limitation, indirect, special, incidental, consequential or punitive damages, arising from the sale of the Products or in connection with the use or inability to use the Products for any purpose whatsoever, irrespective of whether the claims or actions for such damages are based upon contract, tort, negligence, strict liability, warranty or otherwise. In no event shall Seller incur any liability whatsoever for damages of any kind arising out of or relating to delay in delivery.
b.Purchase Price: Should the remedy of replacement be found to be inadequate or to have failed of its essential purpose for any reason whatsoever, Buyer agrees that return to it of the full purchase price of the particular products by Seller shall prevent the remedy from failing of its essential purpose and shall be considered by Buyer a fair and adequate remedy.
10. COST OF COLLECTION: In the event Buyer or Guarantor shall default in any way on Buyer's or Guarantor's obligations under this or any other Agreement, including without limitation the failure to make a timely payment, Buyer and Guarantor shall be liable to Seller for all of Seller's costs of collection including, but not limited to, attorney's fees and expenses.
a. Unless specifically noted otherwise, prices do not include present or future federal, state or local taxes. All taxes shall be for the Buyer’s account.
b. Prices do not include the cost of any independent laboratory inspection if such should be required.
c. Quoted deliveries are based on estimates at the time of quotation. Seller will devote its best efforts to meeting the delivery schedules but assumes no liability for additional costs or damages resulting from later deliveries.
12. GOVERNING LAW / JURISDICTION-VENUE / STATUTE OF LIMITATIONS: This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana without regard to its conflict of law doctrine. By entering into this Agreement, Buyer waives any right to a jury trial. By entering into this Agreement Buyer agrees to submit itself to jurisdiction in Indiana and to venue in any state or federal court located in Lake County, Indiana. BUYER WAIVES ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY WAY IF NOT BROUGHT WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION FIRST ACCRUED TO BUYER.
13. ADDITIONAL WARRANTY:
Also refer and include in this warranty are Brenco Exotic Woods Solid Pre-Finish Hardwood Flooring Installation, Care and Warranty Guide, Brenco Exotic Woods Prefinished Engineered Hardwood Flooring Warranty, Brenco Exotic Woods Prefinished Solid Wood Flooring Warranty, and Brenco Exotic Woods Special Instructions for Installations over Radiant Heat Systems.