TERMS AND CONDITIONS
a. "Seller" is INTERTILE DISTRIBUTORS, INC.
b. "Buyer" includes the immediate buyer of Seller's goods, and all other buyers to which Seller's goods may be resold before installation.
c. "Goods" are the products sold by INTERTILE DISTRIBUTORS, INC.
2. Seller’s agreement to extend credit to Buyer, if any, is made in reliance on the information provided in Buyer’s Application for Credit, incorporated here.
3. PRICE POLICY:
Published prices and discounts are subject to change without notice. Acknowledged prices (job quotes or sales orders) are firm if delivery is made within 90 days of acknowledgment, unless otherwise agreed by Seller. Seller reserves the right to provide goods at Seller's prevailing price on the date of delivery if delivery is in excess of 90 days, or date otherwise agreed by Seller.
4. NOTICE OF CHANGES:
Prices, Trade Discounts (if any), Terms and Conditions are subject to change without notice. However, when Seller makes any change, it will endeavor to mail a general notice to the Trade before the effective date of the change, but Seller does not guarantee such notice, nor shall it be responsible for individual notice to any particular member of the Trade.
5. ACCEPTANCE AND APPROVAL OF ORDER:
An order will become valid and binding on Seller only when accepted and approved by the Sales and Credit Department of Seller. Before orders can be accepted for non-stocked goods, a deposit of 50% must be received by Seller. Receipt by Buyer of the goods sold by Seller shall constitute an acceptance by Buyer of the Terms and Conditions and an agreement that delivery of the goods is subject to no other terms than those stated herein. This agreement is entered into in Alameda County, California. Additional or different terms or conditions in any purchase order or acknowledgment by Buyer are objected to by Seller and shall not be binding upon Seller unless accepted and signed by an Executive Officer of Seller, and an authorized representative of Buyer. No salesperson or agent has authority to make any changes in Seller's Prices, Terms, and Conditions.
Risk of loss on goods shipped shall pass to Buyer upon delivery to the carrier. Title for goods shall pass only upon receipt of full payment.
Goods are carefully packed, inspected, checked and delivered to the carrier in good condition, and Seller's responsibility ends with receipt of goods by carrier. Orders will be shipped as close as possible to the agreed shipping date. Orders held at Seller's warehouse more than 30 days from the originally scheduled shipping dates will be subject to Seller’s prevailing price on the date of delivery, unless any delay in shipping is agreed in writing by Seller. In the absence of specific shipping instructions, Seller will ship by freight, express, parcel post, truck, rail or ship, in the manner most satisfactory based upon convenience, experience and/or cost.
Seller shall not be liable for damages, whether direct, incidental, or consequential, for the loss of profits or any other legal or equitable relief, because of any delay in delivery (either before or after the approximate delivery date), or for failure to deliver the goods, in whole or part, if said delay or failure, whether it affects Seller or Suppliers of Seller, is caused directly or indirectly by flood, natural disaster, fire, explosion, act of God, strike, embargo, shortage of labor, fuel, other energy source, transportation, equipment or material, war or national emergency, compliance with or operation of any applicable law, ordinance, judgment, order or directive of a court of competent jurisdiction, or the federal, state, or local government, or a subdivision thereof, or anything beyond Seller's control.
8. TRANSPORTATION CHARGES:
Prices are F.O.B. INTERTILE warehouse locations, except direct truckloads within the State of California, for which the prices will be quoted F.O.B. the California destination. Any increase in transportation rates on F.O.B. destination prices shall be borne by Buyer. Claims for delays, damage or loss in transit shall be made to the carrier, as Seller's responsibility ceases upon delivery of material to carrier.
9. ORDER CANCELLATIONS AND REDUCTIONS:
Buyer’s request to cancel or reduce any portion of an order must be made in writing to Seller. Seller may, in its sole discretion accept or reject such request. Any costs incurred by Seller upon any agreed cancellation or reduction, shall be borne by Buyer. Such part of any order, or the agreement concerning any order accepted by Seller, as shall be in violation of any federal, state, or local law now existent or hereafter enacted may be canceled by Seller without liability for any damages whatsoever.
10. NOMINAL SIZE:
Many tiles are made with joint allowance to facilitate layout. Buyer shall verify selected joint width and make allowance for any variance from actual size when ordering.
11. QUANTITY SURVEYS:
Seller’s representatives are not authorized to make any quantity surveys or estimates for the goods required for any project, therefore, Seller will not be responsible for any such estimates or quantity surveys of goods for any project.
12. VARIATION AND CLAIMS:
Variation in shade is inherent in all stone and burned clay products. Any claims of variation must be made prior to installation. Color charts, color illustrations and reproduction in catalogs and other publications are offered as approximations and may not be representative of actual color or shade. Seller accepts no responsibility and will not entertain any claim if the goods fail to match color charts and/or color illustrations. All samples are submitted as representative of a type of tile, a color, a shade, or a type of finish, and the goods furnished in a shipment may vary from such samples. Seller does not agree to match individual samples.
It is Buyer's responsibility to inspect goods before installation, and if for any reason the goods are defective, Buyer shall notify Seller in writing before installation. Seller shall not be liable for and will not recognize any claims made after installation of goods said to be incorrectly shaded, sized, shaped, packed, not matching prior shipments or otherwise defective. Seller's liability in respect to claims shall be limited to accepting the return of the goods found to be defective before installation, and then only after Seller has been notified in writing that the goods are defective and Seller's own investigation supports the claim.
Seller is not responsible for product performance beyond guarantees or warranties by the manufacturers of goods sold by Seller and cannot be held liable for performance due to Buyer's improper installation or misuse of any goods.
14. RETURN OF GOODS:
Goods may not be returned without Seller's written authorization. Less than full cartons will not be accepted. A 25% handling charge will be assessed on all returned goods unless found to be defective. No returns on special order goods, non-stocked goods and special sale goods. No returns will be accepted after thirty (30) days from date of invoice.
Any tax or other governmental charge or duty, payable to Seller which is imposed on the goods or their sale, delivery, or use, except income taxes of Seller, shall be paid promptly by Buyer, any such taxes paid by Seller shall be for the account of Buyer. Any additional or new taxes or other governmental charges hereafter imposed on the sale, delivery, use, or transportation of goods sold thereunder, shall be the responsibility of and paid by Buyer.
16. ATTORNEY'S FEES, COLLECTION AGENCY FEES AND RELATED COSTS:
If it is necessary for Seller to employ legal counsel or a collection agency or to take legal action to enforce, protect, or defend any of its rights, Buyer agrees to pay all reasonable attorney's fees, collection agency fees and cost incurred by Seller, including, without limitation, attorneys’ fees and expenses, paralegals’ fees and expenses, attorneys’ consultants’ fees and expenses, expert witnesses’ fees and expenses, and all other expenses incurred by the prevailing party’s attorneys in the course of their representation of the prevailing party in anticipation of and/or during the course of the Litigation, whether or not otherwise recoverable as “attorneys’ fees” or as “costs” under California law; and the same may be sought and awarded in accordance with California procedural law pertaining to an award of contractual attorneys’ fees.
The failure of Seller to insist, in any one or more instances, upon the performance of any of Seller's Terms and Conditions or the failure of Seller to exercise any of the rights thereunder, shall not be construed as a waiver or relinquishment of any such terms, conditions, or rights thereunder, and shall not affect Seller's right to insist on strict performance and compliance with regard to any unexecuted portions of an order or future performance of these Terms and Conditions.
18. GOVERNING LAW:
All contracts made pursuant to these Terms and Conditions shall be deemed to be entered into in Alameda County, and shall be governed by California law. The parties represent that, for their convenience and the convenience of the witnesses and the Court, the venue for any and all actions arising from such contracts shall be the Municipal and/or Superior Courts of Alameda County.
If any provision or portion of these Terms and Conditions is deemed invalid by a court having jurisdiction over the parties, it is the intention of Buyer and Seller that the remaining provisions remain fully effective.
INTERTILE DISTRIBUTORS, INC.