Terms & Conditions
TERMS AND CONDITIONS OF SALE
1. Application of Terms. These Terms and Conditions of Sale (the “Terms”) constitute terms and conditions upon which ACTIVE FIRE DOOR PRODUCTS, INC. (“Company”) agrees to sell goods or accepts an order to purchase goods, as applicable. THESE TERMS ARE THE ONLY TERMS AND CONDITIONS OF THE AGREEMENT BETWEEN THE PARTIES.
2. Delivery\Shipping\Risk of loss. All goods are shipped from the Company’s warehouse. The risk of loss passes to the customer as soon as goods are delivered to customer’s address.
3. Goods Damage. Upon receipt of goods, Buyer shall count and inspect the same for damage and shortages before execution of the shipping receipt accompanying such goods. If there is any damage to any goods, Buyer must file a claim immediately with the carrier or Company, as applicable. Any and all claims for damage or discrepancy between a shipping invoice and goods delivered, shortages or other errors must be delivered to Company within three (3) days following delivery of the goods. Failure to make a claim shall be deemed full acceptance of the goods delivered and a waiver of any and all such claims.
4. Payment. All goods must be fully paid prior to any goods being shipped. All sales are final. In any action or proceeding to enforce or construe this Agreement, the prevailing party shall be entitled to recover their actual attorney’s fees and costs.
5. Taxes and Duties. Buyer shall pay all excise, privilege, sales and value-added taxes and all custom duties, levies and other governmental charges, however designated, imposed by any governmental authority arising from the sale or the exportation or importation of the goods, and Buyer shall indemnify and hold Company harmless from and against any and all expenses, costs, liabilities and claims arising out of or relating to Buyer’s failure to fulfill such obligation.
6. Limited Warranty. Company is a distributor, not a manufacturer. Company does not separately warranty any goods. Rather, Company assigns to Buyer the warranties of the applicable manufacturer for the goods purchased. If Buyer believes any goods do not comply with such warranty, Buyer shall, within the warranty period, report the purported defect to Company and the manufacturer and cooperate fully with Company and the manufacturer in determining the conditions and cause of any purported defect and, thereby, obtain a returned goods authorization from Company. If Company determines the alleged defect occurred as a result of misuse, neglect, improper installation, repair, alteration, application or accident, unusual physical or electrical stress or improper handling procedure, any warranty shall be void and ineffective.
7. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY COMPANY OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY FOR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) ARE OVERRIDDEN, EXCLUDED AND DISCLAIMED.
8. Exclusive Remedy and Damage Limitation. In the event Buyer establishes a breach of the above warranty, Buyer’s exclusive remedy against Company, and Company sole liability, is, at its option, the replacement of the defective goods or the refund of the purchase price therefor. In no event shall COMPANY be liable for damages in excess of the purchase price of the goods or FIVE HUNDRED DOLLARS ($500), whichever is greater.
9. No Consequential Damages. COMPANY SHALL NOT BE RESPONSIBLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF GOODWILL, PROFITS, USE OF MONEY OR USE OF GOODS, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS, ARISING OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY.
10. Force Majeure. Except for payment obligations, neither party will be liable for any failure or delay in performing an obligation under this Agreement that is due to causes beyond its reasonable control, such as natural catastrophes, epidemics or pandemics (including COVID-19), governmental acts or omissions, laws or regulations, labor strikes or difficulties, transportation stoppages or slowdowns or the inability to procure parts or materials. If any of these causes continues to prevent or delay performance for more than ninety (90) days, the affected party may terminate the agreement between the parties, in whole or in part, effective immediately upon notice to the other party.
11. Waiver. Failure by Company to strictly enforce any provision of these Terms shall not be deemed a waiver of such provision or create a course of dealing between the parties pursuant to which performance is not required.
12. Dispute resolution. Any action arising out of the agreement between the parties, except as otherwise provided herein, shall be resolved by binding arbitration in Contra Costa County, California in accordance with the rules of the American Arbitration Association.
13. Governing law. This Acknowledgment is entered into and shall be governed by, construed, and enforced in accordance with the laws of the State of California, excluding its conflict of law rules.
14. Entire Agreement. These Terms, together with any applicable goods specifications, constitutes the entire agreement of the parties and may not be amended except in writing signed by both parties.
ALL SALES ARE FINAL