New Terms & Conditions for Cabinet Sales
Terms & Conditions of Sale
Effective Date: January 14, 2014; Last Updated: June 1, 2018
BY REGISTERING FOR AN ACCOUNT AND PURCHASING PRODUCT FROM THE The Cabinet Guy.US WEBSITE (THE “WEBSITE”) OR OTHERWISE PURCHASING PRODUCT FROM US WITH AN ORDER FORM SUBMITTED VIA FAX OR EMAIL, YOU, ON BEHALF OF YOURSELF AND ANY ENTITY YOU REPRESENT, IF APPLICABLE, ACKNOWLEDGE THAT: (1) YOU HAVE READ AND UNDERSTAND ALL OF THE FOLLOWING TERMS AND CONDITIONS OF SALE (THE "TERMS OF SALE"); (2) YOU AGREE TO BE BOUND BY THESE TERMS OF SALE; (3) THESE TERMS OF SALE FORM A LEGALLY-BINDING AGREEMENT BETWEEN YOU AND SELLER (DEFINED BELOW); AND (4) IF ACTING ON BEHALF OF AN ENTITY, YOU MUST HAVE, AND YOU REPRESENT AND WARRANT THAT YOU HAVE, FULL AUTHORITY TO BIND YOUR ENTITY TO THESE TERMS OF SALE. PLEASE READ THESE TERMS OF SALE CAREFULLY. DO NOT PURCHASE PRODUCT FROM US IF YOU DO NOT AGREE WITH EACH TERM AND CONDITION STATED IN THESE TERMS OF SALE. You acknowledge that these Terms of Sale and your agreement to these Terms of Sale are supported by reasonable and valuable consideration, the receipt and adequacy of which are hereby acknowledged. Without limiting the generality of the foregoing, you acknowledge that such consideration includes your use of the Website and the products you purchase from the Website or otherwise from us.
- Product Orders. You may order products through the Website or by submitting an Order Form via fax or mail. Each Product order will be deemed an offer by you to purchase the product specified in your order, which offer Seller may accept or reject, in part or in full, in Seller's discretion.
- Payment. Payments for all orders must be made by credit card, unless Seller has approved you for separate credit terms (such approval must be given via email or other written format). For credit card sales, your credit card will be charged at the time you place your order. Orders placed on credit terms are invoiced weekly and payment is due in full ten (10) days after the date of the invoice. Orders placed through approved regional distributors or value-added retailers will be billed by the distributor or retailer and subject to the payment terms of the distributor or retailer, as the case may be. All payments are due in United States currency. In the event you believe there is an error in the amount charged, you must notify us within five (5) days of the date you are charged or invoiced, or you are barred from raising such objection or reducing the amount owed. Past due amounts will be subject to a late payment penalty as stated on the applicable invoice, if invoiced. We may use all legal means available to collect any outstanding fees should our attempt(s) to charge your credit card fail for any reason or if you fail to pay an invoice in a timely manner, and you agree to pay all fees associated with the same, including collection agency and legal fees. If you submit a purchase order, any terms and conditions on your purchase order will have no force or effect regarding your purchase, use, or payment for products purchased from us, or your use of the Website.
- Prices and Taxes. All prices charged by Seller will be the prices as they exist when your order is placed, unless otherwise agreed by Seller via email or other written format. Seller reserves the right, in its sole discretion, to change product prices at any time; provided, however, that if Seller quotes a product price, the quoted price will be good for thirty (30) days from the date issued. We will provide a quote for shipment via Federal Express at the time you place your order, and you shall be responsible for payment of shipment costs. Prices do not include sales, excise, use, or other taxes measured by the sales price of the goods sold or any other charges imposed by a governmental authority arising under such sale. You will be responsible for paying any and all such taxes and other charges, unless you have provided us with a verifiable tax exempt form. If Seller is required by a governmental authority to pay any such taxes or other charges arising from the sale of product to you, you agree to reimburse Seller in full for such payment.
- Cancellations. Product orders may not be cancelled without our prior written permission, and then only when we are reimbursed for work performed and materials used to complete the order.
- Delivery of Goods. Seller will deliver the goods sold to you by placing the goods with a carrier for delivery to you. Risk of loss of, or damage to, purchased products passes to you F.O.B. Seller's plant. Delivery dates are estimated only. In no event will Seller be liable to you or any third parties for any damages of any kind, direct or indirect, in the event of delay of delivery. In the event of any such delay, Seller will have such additional time within which to perform its obligations hereunder as may reasonably be necessary under the circumstances.
- Inspection, Shortages, and Acceptance. You should inspect the goods at the place of destination promptly upon arrival, or you may inspect the goods at the point of origin. Any shortage claims must be made within five (5) days after delivery. Your acceptance of the goods will be conclusively presumed and any breach of warranty waived if you fail to give us notice of defective or non-conforming goods within fifteen (15) days after delivery in the case of defects discoverable through inspection, and within fifteen (15) days after discovery in the case of defects not discoverable through inspection. The notice must describe the rejected goods and the defects upon which the claims are based. Seller will be given a reasonable opportunity to investigate all claims and to inspect allegedly defective goods. Defective goods will not be returned until Seller has consented thereto and has delivered written shipping instructions to you.
- Limited Warranty. Seller warrants that it has the legal right to sell the goods and that the goods are free from encumbrances, liens, or claims. Seller warrants that the goods sold will substantially conform to Seller's written specifications in effect at the time of sale for a period of 30 days from the date of shipment when stored, handled, and used as intended and in accordance with Seller's specific recommendations, if any. See information regarding your timing and notification obligations in Section 6 above if you intend to claim any product is not in compliance with this limited warranty.
- DISCLAIMER OF WARRANTIES.
THERE ARE NO OTHER WARRANTIES OR REPRESENTATIONS, STATUTORY OR OTHERWISE, EXPRESS OR IMPLIED, OR ARISING BY USAGE OR TRADE, OR OTHERWISE, EXCEPT THE LIMITED WARRANTY STATED IN SECTION 7. Seller does not warrant that applicable ANSI standards or other grading agency standards for the goods sold will meet any of your requirements. Seller does not warrant the goods to any third parties for any purpose or use whatsoever. SELLER DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING OR TRADE USAGE.
- YOUR REMEDIES. If any goods do not meet Seller's limited warranty stated in Section 7 above, Seller, upon notice from you in compliance with your timing obligations in Section 6 above, will promptly repair or replace the non-conforming goods, F.O.B. Seller's plant, or, in the alternative, at Seller's option, Seller may repay you that portion of the amount actually paid by you for the non-conforming goods. If Seller replaces the non-conforming goods, you must return the non-conforming goods to Seller in accordance with Seller's shipping instructions, and Seller's replacement may be withheld under the non-conforming goods are returned. Repair, replacement, or partial refund (at Seller's option) shall be your sole and exclusive remedy for any error, defect, or failure of the product whatsoever. Seller shall not be liable for any other costs, expenses, liabilities, or damages associated with any non-conforming product.
- Customer Satisfaction Guarantee. We provide a customer satisfaction guarantee for a period of fourteen (14) days after purchase. If for any reason a customer is not satisfied with the product, the product may be returned to us in its entirety for a full refund (including return freight) within 14 days after purchase. We reserve the right to manage return freight carriers and time of pick-up. For this guarantee to apply, all products must be returned in good condition and free of any damage caused by the customer.
- LIMITATIONS ON YOUR REMEDIES.
IN NO EVENT WILL SELLER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR MULTIPLIED DAMAGES ARISING IN ANY WAY FROM THE SALE OR DELIVERY OF GOODS TO YOU OR FROM ANY BREACH OF CONTRACT BY SELLER, HOWEVER SUCH DAMAGES MAY ARISE IN CONNECTION WITH THE SAME, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The limitation of Seller's liability is applicable to any and all claims or theories of recovery asserted by you, including, without limitation, breach of contract, breach of warranty, expressed or implied, strict liability in tort or negligence, or in the event that you claim, allege, or otherwise assert that any loss or damage is attributable to the negligence of Seller. Seller will not be liable for any failure of ANSI standards or other applicable grading agency standards to meet your requirements.
- Limitation on Time to Bring Action. Any action for Seller's breach of its limited warranty or any other breach of contract OR OTHER ACTION RELATING TO THESE TERMS OF SALE OR YOUR PURCHASE OR USE OF PRODUCT FROM US must be commenced by you within one (1) year after the cause of action has accrued, or forever be barred.
- Delays and Force Majeure. Seller will not be in default or otherwise responsible for any delay in performance or delay in delivery caused by circumstances beyond its control, including, but not limited to, an act of God, fires, floods, wars, government actions, accidents, labor troubles, labor shortages, unavailability of materials, unavailability of equipment, or unavailability of transportation. Seller may, without liability to you or any third party, suspend its performance when Seller's performance is delayed or prevented by weather conditions, fires, floods, accidents, riots, acts of God, war, government interference, embargo, strikes, labor disputes, shortage of labor, fuel, power, materials or supplies, transportation delays, or any other cause or causes (whether or not similar in nature to any of those specified above) beyond Seller's reasonable control. If such conditions continue for ninety (90) consecutive days, Seller may terminate its performance to you.
- Seller's Remedies. In the event you default under or breach of any your obligations, representations, or warranties in these Terms of Sale, Seller will have all remedies afforded under these Terms of Sale, the Texas Uniform Commercial Code, at law or in equity. Without limiting the generality of the foregoing, Seller may immediately accelerate all amounts due from you to Seller, bring an action for the purchase price, withhold further deliveries or terminate any order without notice, or stop in transit any shipment to you or your designee. Seller will have the power, but not the duty, of resale of any goods in Seller's possession for your account after seven (7) days' written notice thereof has been given to you. Seller's remedies set forth in this paragraph are cumulative and may be exercised singularly or concurrently.
- Indemnity. You will indemnify, defend, protect, and hold harmless Seller (and its affiliates, parent company, subsidiaries, successors and assign), at all times from and after the Effective Date of these Terms of Sale, for, from and against all claims, damages, actions, suits, proceedings, demands, assessments, adjustments, costs, and expenses (specifically including reasonable attorneys' fees and expenses of investigation) incurred by Seller (and/or its affiliates, parent company, subsidiaries, successors and assign) as a result of or arising from (a) any unauthorized use of the goods sold hereunder by you or any third party to whom you give the goods, or any use of the goods by you or any such third party that it is not in accordance with Seller's instructions, (b) any nonfulfillment of any covenant or agreement on your part under these Terms of Sale, including, without limitation, any breach of the representations and warranties made by you in favor of Seller, and (c) any claim made by a third party, or the commencement of any action or proceeding by a third party, that would give rise to Seller's right of indemnification under these Terms of Sale.
- Clerical Errors. Stenographic, computer, mathematical computation, or other clerical errors made by Seller on either an acknowledgment or invoice issued to you will be subject to correction by Seller.
- Modification. We reserve the right to revise these Terms of Sale at any time. We will post any new or revised Terms of Sale here, and you should review these Terms of Sale regularly to make sure you are aware of any changes. You can determine if these Terms of Sale have been revised since your last visit to the Website or last product purchase by referring to the effective date or last updated date at the top of these Terms of Sale. If changes are significant, Seller may also notify you of such changes by posting a notice on the home page of the Website; via contact information you have provided to us, if any; and/or by notifying you the next time you access your account. The Terms of Sale in effect at the time of your product purchase shall apply to such purchase.
- Choice of Law. These Terms of Sale will be governed by and construed under the laws of the State of Texas, without giving effect to any conflict-of-laws provisions. The United Nations Convention on the International Sale of Goods shall not apply to these Terms of Sale.
- ARBITRATION AND ATTORNEY FEES. Any and all disputes, including but not limited to any disputes arising under these Terms of Sale or arising from any sale of goods by Seller to you will be resolved by binding, mandatory arbitration under the authority of the American Arbitration Association. Such arbitration proceeding will be conducted in Harris County, Texas. The prevailing party in any arbitration arising hereunder will be entitled to its reasonable attorneys' fees and all expert and deposition costs, and all other costs of arbitration, from the non-prevailing party. Notwithstanding the foregoing, you acknowledge and agree that to the extent you have in any manner violated or threatened to violate Seller’s intellectual property rights or disclosed or threatened to disclose any Seller confidential or proprietary information, such violation or disclosure will cause immediate and irreparable harm to Seller, and Seller shall be entitled to injunctive or other appropriate relief, including without limitation specific performance (without the posting of a bond or other security and without proving damages), and you agree that Seller may seek such relief in any court of competent jurisdiction.
- General. These Terms of Sale do not create any partnership, joint venture, employer-employee, broker-dealer, agency, or franchise relationship between you and us. If any provision of the Terms of Sale is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid and enforceable provision that most closely matches the intent of the original provision, and the remainder of these Terms of Sale shall continue in full force and effect. No waiver or failure to assert any provision of the Terms of Sale shall be valid unless in writing and signed by an officer of Seller. No waiver of any breach or default under these Terms of Sale will be deemed to be a waiver of any preceding or subsequent breach or default. You may not assign, transfer, or sublicense any or all of your rights or obligations under these Terms of Sale without our express prior written consent. Seller may assign its rights and duties under these Terms of Sale to any party, at any time, and without notice to you, unless otherwise required by law. These Terms of Sale will be binding on the parties and their permitted assigns, and will inure to their benefit. These Terms of Sale cannot be amended or modified except in a writing signed by both parties. The parties do not intend to confer any right or remedy on any third party. All rights and remedies contained in these Terms of Sale are cumulative and may be exercised singularly or concurrently.