TERMS AND CONDITIONS
1. GENERAL: The term “Seller” shall refer to Stone-Mart Marble and Travertine Group, LLC and its subsidiaries. The term Buyer shall mean that person or entity purchasing materials from Seller. All sales made by Seller are subject to the terms and conditions (these “Terms and Conditions”) contained herein, which shall prevail over any inconsistent terms of Buyer’s purchase order or other documents. No terms and conditions in any way altering or modifying these Terms and Conditions shall be binding upon Seller unless they are specifically authorized in writing by Seller’s authorized representative. Buyer agrees that its exclusive remedy against Seller in the event Buyer contends goods or materials supplied by Seller are defective, shall be an action for damages limited by the purchase price of the goods or materials actually paid by Buyer and in no event shall Seller be liable for any other damages, including, but not limited to loss of profits, indirect, incidental, consequential, special, delay, or other similar damages that may arise out of any breach of this agreement or any obligations under this agreement.
2. ACCEPTANCE AND PURCHASE: The sale and shipment of the products listed in the Sellers invoice are governed by the terms and conditions contained in the proposal and/or those terms below without regard to any additional provisions or provisions to the contrary in any of the Buyer’s commercial forms or otherwise. Installation is considered acceptance. Marble and travertine are products of nature, natural color and veining will vary from one tile to another and absolutely no two tiles are alike. Up to 7% breakage, damage or inconsistencies in quality of all materials are considered acceptable, and the Seller is not liable for those materials.
3. PURCHASE PRICE: Unless otherwise specified in writing the Buyer agrees to pay the total purchase price prior to pick up or delivery of the products listed in the Sellers invoice. In addition, the Buyer agrees to pay any sales or other taxes levied on or measured by such purchase price, or arising from the use of the products and any parts or maintenance supplied, including without limitation, any additional sales, use, gross receipts, privilege, excise and personal property taxes unless specified. Prices do not include any mock-up materials such as model bathrooms or kitchens, additional testing of the stone, or the cost of or the supply of a performance bond.
4. PICK UP / DELIVERY: TITLE AND RISK OF LOSS: The purchaser acknowledges and agrees that all deliveries are curbside and no signature is required at time of delivery. Seller is not liable for any lost, damaged or stolen products after delivery. Delivery of materials to a jobsite means the materials were incorporated into that jobsite. The Seller is not responsible for damages occurred to the customers vehicles during pick-up, loading or transport of purchased materials. For all orders of non-fabricated products, title and risk of loss shall pass to the Buyer as follows: (a) if the order is for more than or equal to that quantity contained in one standard twenty foot freight container, or an equivalent amount, the title and risk of loss shall pass to the Buyer upon commencement of loading (by the Seller, the Buyer, or any third party carrier) at the Sellers facility or other point of shipment; or (b) if the order is for less than one standard 20 foot freight container then title and risk of loss shall pass to the Buyer when the products arrive ready for unloading at the Buyer’s facility or other designated delivery destination. All sales and shipments pursuant to this invoice are subject to cancelation or delay in the event of: strikes, delay of carriers, acts of God, quarry conditions, or other conditions beyond Seller’s control. All shipments of the Sellers products shall be conducted utilizing the Sellers standard bill of lading and shall be subject to all terms and conditions of the same.
5. INSPECTION: Buyer is responsible to inspect the products upon pick up or receipt of delivery. Any damage to delivered materials needs to be noted on all copies of the freight bill. The delivery receipt must be signed by the driver and consignee. Concealed damage needs to be reported within 24 hours. Pictures must be taken of the material in its original packaging showing different angles of the crates. If any smaller items such and sealer, mosaics or accessory pieces are missing it must be noted on the delivery receipt. It shall be conclusively presumed, by both the Buyer and Seller, that the products were delivered in good order should the delivery receipt not reflect any damage. In no event will any claims be accepted for any reason after material has been installed. In no event shall the Seller be liable for labor or installation charges or for claims related to the installation of delivered materials.
6. INDEMNITY: Buyer agrees to defend and hold Seller harmless from and against any and all claims of any kind or nature (whether based in tort, contract or otherwise) resulting directly or indirectly from the purchase of goods or materials by Buyer from Seller or the use or consumption of such goods or materials by any third party, as well as all other actions or inactions of Buyer, its agents, employees and all others acting on its behalf or at its direction related thereto. For purposes of this provision, the “Seller” includes Seller, all parent, subsidiary and related entities, as well as their past, present and future officers, directors, agents, employees, insurers and all for whom they are responsible.
7. APPLICABLE LAW AND VENUE: The purchaser acknowledges and agrees that the exclusive venue for all disputes under this agreement shall be in the state or federal courts located in Hillsborough County, Florida and the applicable law shall be the law of the State of Florida.
8. PAYMENT: All deposits are considered non-refundable. Payment is due in full prior to pick up or delivery of material unless otherwise specified by the Seller. In the event of any default of this payment the Buyer agrees to pay all costs of collections including investigations and reasonable attorney’s fees. The Buyer further agrees to pay a 2% finance charge on past due balances per month. The Buyer agrees that any credit balances issued will be applied within one (1) year of issuance. If not applied or requested within one (1) year, any balance remaining will be subject to automatic cancellation without further notice, and the Seller shall have no further liability regarding said credit balance.
9. PRICING: All prices are subject to change without notice and are not guaranteed, except that prices for an order that have been accepted by Stone-Mart and are not subject to change after acceptance. Prices stated do not include any sales, use or excise tax or any other tax, duty or charge which is now in effect or may be hereafter imposed by any Federal, State or other authority. All such taxes, duties or other charges shall be paid by Buyer unless Buyer shall provide Seller an exemption certificate acceptable to the appropriate authorities.
10. SPECIAL ORDERS AND FABRICATION: All custom-made items are considered special orders. All special orders must be paid in full prior to ordering. This money is non-refundable, and once placed, the order cannot be cancelled for any reason. The Buyer also understands that the Seller cannot guarantee that any special order product will match any samples, photographs or other renderings provided throughout the sales process. All special orders are no exchange no return.
11. RESTOCKING ITEMS: All approved returns are subject to Seller’s inspection. Stocking items may only be returned within thirty (30) days from the date of pick up or delivery and must be in full cartons only. The Seller will not accept picked through or leftover material. If accepted, and at Seller’s sole discretion, returned stocking items require a 25% handling and re-stocking charge.
12. STORAGE FEES: The Buyer is required to take delivery within 8 weeks. If products are held in the Seller’s possession because of the Buyer’s refusal or inability to take possession or because failure to pay on the balance of the invoice, Buyer shall pay storage and/or demurrage charges of $250.00 per month.
13. ENTIRE AGREEMENT: This document and any proposal issued by the Seller (“Agreement”) constitute the entire agreement between the Buyer and Seller. The agreement is intended as a complete and exclusive statement of the parties’ terms and no course of prior dealings between the parties and no usage of the trade shall be relevant to supplemental or explain any term used in the Agreement. The Seller hereby rejects any and all additional or conflicting terms or conditions contained in the Buyer’s purchase order or other business forms or any attempted modifications of the agreement’s terms and conditions. No agent, employee, or representative of the Seller has any authority to bind the Seller to any affirmation, representation or warranty concerning the products sold under this Invoice, unless the same is included within this written invoice. This invoice may be modified or rescinded only by a written instrument signed by all parties hereto or by their duly authorized agents. No waiver of any provision of the agreement shall be deemed to have been made unless set forth in writing and signed by the parties hereto. Waiver by the Seller of any provision hereof in one instance shall not constitute a waiver as to any other instance.