These Terms and Conditions (“Terms”) apply to all products and services (collectively “Products”) sold by Prudent Floors LLC (“Seller”) to any person or entity (“Purchaser”). These Terms are incorporated by reference into all orders for the purchase of Products signed by Seller and Purchaser (“Orders”), as if fully written therein. THESE TERMS, TOGETHER WITH THE ORDERS, CONSTITUTE THE ENTIRE BINDING AGREEMENT BETWEEN SELLER AND PURCHASER (“Agreement”) and supersede any and all other agreements, understandings, negotiations and discussions between Seller and Purchaser, whether verbal or written. No modification, alteration, amendment, supplement, release or waiver of this Agreement, in whole or in part, will be binding on Purchaser or Seller unless made in writing and signed by both Seller and Purchaser.
Orders cannot be changed, modified or canceled once signed by Purchaser. The balance due on Orders, if any, must be paid by Purchaser in accordance with the payment schedule specified in the Orders. If not paid when due, an interest charge equal to 1.5% per month (18% per year) will be added to the outstanding balance until paid in full and Purchaser will be responsible for all expenses, attorneys’ fees and court costs incurred by Seller to collect the same. Purchaser is also responsible for all fees incurred by Seller in connection with Purchaser’s dishonored checks or stopped payments, irrespective of the reason. Seller retains a security interest in the Products until the Orders are paid in full. Purchaser must pay all taxes and fees imposed on the Orders by federal, state or local governmental authorities unless Purchaser provides a legally acceptable tax exemption certificate. Seller reserves the right not to sell to any person/entity with a history of delinquent accounts with Seller. Purchaser is responsible for payment of the Products whether or not the same are approved and paid in whole or in part by an insurance company or third-party.
In addition to the provisions in Section 7 herein below, Seller is not and will not be responsible for any manufacturer or shipper delays, nor any losses or general, special or consequential damages arising out of the same. Purchaser will be responsible for all storage and other costs related to Purchaser’s failure to pick-up/take possession of the Products within 14 days after notice of delivery from Seller (unless Seller is installing the product for Purchaser).
3) Inspection and Warranties.
Due to manufacturer requirements, Purchaser must thoroughly inspect the Products for defects or damages and notify Seller of any defects/damages within 3 days of receipt. There may be a dye-lot variation from samples, which is NOT considered a defect/damage to the Products. Upon receipt of the above notice and after conducting any inspection deemed appropriate by Seller, Seller will work with the manufacturer to replace or refund the defective/damaged Products pursuant to the manufacturer’s warranties, if any. Failure of Purchaser to notify Seller of any defects/damages as required above, or installation/use by Purchaser of the Products, whether or not such notice has been given, will constitute Purchaser’s complete and unqualified acceptance of the Products in their present “AS IS” condition and waiver of any and all claims related to the same. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND IN CONNECTION WITH THE PRODUCTS (WHICH TERM INCLUDES ALL SERVICES PERFORMED BY SELLER), EXPRESS OR IMPLIED, VERBAL OR WRITTEN, ARISING BY LAW, CONTRACT, STATUTE OR OTHER LEGAL THEORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR AS TO QUALITY OR CORRESPONDENCE WITH ANY DESCRIPTION OR SAMPLE, OR WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE, ALL OF WHICH ARE SPECIFICALLY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
4) Limitation of Liability.
. PURCHASER IS SOLELY RESPONSIBLE FOR DETERMINING THE SAFETY AND FITNESS OF THE PRODUCTS FOR PURCHASER’S USE AND ASSUMES ALL RISK AND LIABILITY WHATSOEVER RESULTING FROM THE SAME. UNLESS SELLER’S INSTALLATION SERVICES ARE PURCHASED, PURCHASER IS SOLELY RESPONSIBLE FOR THE HANDLING AND INSTALLATION OF THE PRODUCTS, EVEN IF SELLER OR ITS REPRESENTATIVES HAVE PROVIDED INFORMATION, AS A COURTESY, REGARDING THE SAME AND AGREES TO INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM AND AGAINST THE SAME. NOTWITHSTANDING THE TERMS OF THIS AGREEMENT, IF A COURT OF COMPETENT JURISDICTION DETERMINES THAT SELLER IS LIABLE TO PURCHASER OR ANY OTHER PERSON/ENTITY FOR ANY CLAIM FOR LOSSES OR DAMAGES OF ANY KIND OR NATURE, DIRECTLY OR INDIRECTLY RELATING TO OR ARISING OUT OF THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO THOSE ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR OTHER TORT, STRICT LIABILITY OR OTHERWISE, THEN PURCHASER UNDERSTANDS AND AGREES THAT SELLER’S MAXIMUM AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL AMOUNT PAID UNDER THIS AGREEMENT BY PURCHASER TO SELLER FOR THAT PORTION OF THE PRODUCTS IN WHICH SUCH CLAIM IS MADE AND PROVED AND THE SAME WILL BE PURCHASER’S EXCLUSIVE REMEDY. IN NO EVENT WILL SELLER BE LIABLE FOR LOSS OF PROFITS, LOSS OF BUSINESS OR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OR COSTS OF LITIGATION, INCLUDING BUT NOT LIMITED TO ATTORNEY’S FEES AND COSTS, RELATED TO SUCH CLAIM. EXCEPT AS MAY BE PROHIBITED BY APPLICABLE LAW, CLAIMS MUST BE BROUGHT BY PURCHASER WITHIN 1 YEAR AFTER THE CAUSE OF ACTION ACCRUES OR PURCHASER WILL BE DEEMED TO HAVE WAIVED ALL RIGHTS RELATING THERETO.
5) Return and Refund Policy.
Sale of all Products are final and cannot be returned or refunded except upon Seller’s prior written approval or as otherwise provided in this Agreement. If approved by Seller, the Products must be returned in their original clean, unopened and undamaged cartons and a 25% restocking fee will be deducted from any applicable refund. Refunds will be issued in the same method as paid.
6) Seller’s Services.
The following applies when Seller’s installation or other services are purchased and specified in the Orders:
- (a) Purchaser agrees to (i) provide access to Purchaser’s property and the service/installation area including disarming any security/alarms systems; (ii) remove all breakable items from the service/installation area; (iii) ensure the service/installation area is clear of all obstacles and free from mildew, fungus, faults, loose materials and known or potential hazards and conditions; (iv) provide electricity, water and toilet services for Seller’s installers or employees while performing the services; (v) keep pets and children out of the service/installation area at all times., and (vi) not move or remove any equipment used or set up by Seller in connection with the services.
- (b) If Purchaser requests any alteration or deviation from the Orders or an alteration/deviation is necessitated by structural issues or other unforeseen circumstances, then Purchaser and Seller will complete and sign a Change Order that includes the details of the change, related costs and time extension, if any. Purchaser agrees to pay Seller the additional costs prior to the Change Order becoming effective and upon payment, the Change Order will be deemed incorporated into this Agreement by reference, as if fully written herein.
- (c) Seller and its installers/employees are not responsible for purchaser’s measurements, for any chips, dents or conditions of existing paint, moldings, doors, jambs or fixtures, for cutting doors, or for any other damages related to the services unless the same is directly caused by the willful misconduct of Seller.
- (d) Seller’s services will not include the identification, detection, abatement, encapsulation, or removal of any hazardous substances. Purchaser represents and warrants to Seller that there exists no hazardous substances on Purchaser’s property which have not been fully disclosed to Seller. If Seller discovers any latent conditions or hazardous substances, including without limitation, lead-based paint, asbestos, mold or mildew, Seller will discontinue its services until such hazardous conditions are removed or otherwise remediated. Purchaser is solely responsible for arranging and paying for such correction/remediation. If Purchaser is unable or unwilling to correct/remediate the hazardous condition, then this Agreement will be terminated and Purchaser will pay Seller for all services rendered through the date of termination. Purchaser further agrees to defend, indemnify and hold harmless Seller from all liability claims, causes of action, suits, costs, attorneys’ fees and expenses including but not limited to claims based on Seller’s negligence or imputed negligence, arising directly or indirectly from the existence or presence of hazardous substances on Purchaser’s property.
- (e) Upon the completion of the services, Seller will remove all materials, supplies, and other debris from Purchaser’s property and will give Purchaser any remaining usable Products. Seller warrants the workmanship of its services for a period of 1 year from the date of completion, but such warranty is subject to the provisions and limitations set forth in this Agreement and will be void if all money due to Seller is not paid in full and/or if the installed products are repaired, altered, modified or tampered with (or the same is attempted) by anyone other than Seller.
7) Force Majeure.
Seller will not be liable for, and will be excused from, any delay, loss or annoyance incurred by Purchaser in connection with Seller’s non-performance of the Orders due to: acts of God; acts of nature and natural disasters; acts of civil or military authorities; acts of a public enemy; civil commotions; blockades; riots; arrests; wars; terrorism; invasions; strikes; lockouts; boycotts; embargoes; labor-related issues; materials and/or transportation related issues, disputes, constraints or delays; shortages of or inability to obtain at reasonable costs labor, fuel, power, supplies, feedstock, materials and/or transportation; industrial disturbances; explosions; fires; floods; accidents; systems and/or equipment breakdowns; plagues, pandemics, epidemics, outbreaks of infectious disease or any other public health crisis; voluntary or mandatory compliance with any request of any governmental authority including federal, state or local quarantine, evacuation or other orders, requisitions, regulations, restrictions or directions; legislative changes; governmental actions or orders; delays in the issuance of necessary permits/approvals; delays in required inspections; unforeseen circumstances and any other causes (whether similar or dissimilar to the foregoing) beyond Seller's reasonable control. In these events, the period of performance will be extended, if possible, to such extent as may be appropriate after the cause of the delay or non-performance has been removed, with no adjustment, refund or other liability to Purchaser. If Seller cannot perform all or any portion of this Agreement due to the foregoing, then Purchaser’s sole remedy will be a refund of the total amount paid under this Agreement by Purchaser to Seller for that portion of the Agreement not performed.
8) Reservation of Rights.
Seller reserves the right, in its sole discretion, to revise, modify, change or terminate any of its terms and conditions, products, services and prices at any time, for any reason, without prior notice and/or liability or obligation to any person/entity.
This Agreement is binding on and will inure to the benefit of Seller and Purchaser and their respective heirs, executors, administrators, representatives, successors and permitted assigns, provided however,
that this Agreement, the Orders and any other documents/writings permitted hereunder will not be binding on Seller unless signed by its President or Vice President. All promises, agreements, representations and covenants made by Purchaser pursuant to this Agreement will survive the termination or expiration of this Agreement, for any reason. The provisions of this Agreement are severable, and if any one or more provision is determined by a court of competent jurisdiction to be invalid, illegal, not in conformity with applicable laws and regulations or judicially unenforceable, in whole or in part, that provision will be removed from this Agreement, or reformed/modified so as to be in accordance with such laws and regulations and the validity of the remaining provisions will not be affected and will continue in full force and effect. This Agreement is governed by the laws of the State of Ohio, without regard to any conflict of laws principles and Purchaser and Seller agree that any dispute or action related to this Agreement may only be brought in the state or federal courts in Cuyahoga County, Ohio and further agree to submit to the exclusive and personal jurisdiction of those courts. Purchaser agrees to pay for all costs, expenses and attorneys’ fees incurred by Seller in enforcing any breach of this Agreement by Purchaser. Except as otherwise stated in this Agreement, any notice or communication under this Agreement must be in writing and sent by U.S. certified mail, postage prepaid, return receipt requested to the parties at their respective addresses provided in this Agreement.