The Terms and Conditions of Sale for Special Order Products from California Window Solutions, (the “Agreement”) is made and entered into as of the date customer (“Buyer”) places an order with California Window Solutions (“Seller”). ALL CALIFORNIA WINDOW SOLUTIONS TERMS AND CONDITIONS OF SALE ARE SUBJECT TO CHANGE AT ANY TIME.
1. Special Order Products and Purchase Documents
1.1 Special Order Products.
Upon satisfaction of all conditions set forth in these Terms of Sale, Seller will sell to Buyer Special Order Products, herein referred to as “Special Order Products” or “Product(s).”
1.2 Purchase Documents
Seller may provide a quotation on a form described as an “Estimate” and later if Buyer proceeds to purchase from Seller, Buyer will provide Seller with Buyer with an electronic copy of the Sales Contract for Special Order Products (typically, but not limited to windows, doors, skylights and hardware), which will be subsequently reflected on a contract to Buyer with the price to be charged by Seller (any of which are a “Sales Contract”).
a) Estimate - The document provided by Seller to Buyer which presents initial product offering/pricing.
b) Sales Contract - The Sales Contract will be provided to Buyer from Seller upon acceptance of Estimate.
c) Shop Drawing(s) - When Shop Drawings are provided, contract may be reconciled upon approval of final draft.
d) Authorized representative (signatory) - All documents must be signed by Buyer’s authorized representative.
1.3 Agreement in Full Force and Effect. Except as specifically modified herein, all Terms and Conditions of California Window Solutions Purchase Documents remain unchanged and in full force and effect.
2. Acceptance, Fulfillment and Termination
2.1 Fulfillment of Conditions by Buyer
The Terms of Sale herein shall come into full force and effect on the date Seller receives the down payment referred to in Article 5 (Billing and Payment Terms) hereof (the “Effective Date”). In the event all the foregoing conditions have not been fulfilled by the Expiration Date, it is understood and agreed that Seller may terminate this Agreement immediately. Acceptance by the Seller of an inaccurate Estimate is at the Seller’s sole discretion.
2.2 Seller’s Acceptance Required for Effectiveness of Agreement.
a) Any order subject to this Agreement shall expire five (5) business days from Seller’s provision of the Estimate to Buyer (the “Estimate Date”), unless earlier revoked by Seller (the “Estimate Expiration Date’).
b) All Special Orders are NOT CANCELLABLE, RETURNABLE or REFUNDABLE. In the event of a cancellation, any deposit will be forfeited and not recoverable.
3. Shipping and Delivery, Installation, Warranties and Service
3.1 Delivery
a) Delivery Location. In most cases, special order products will be delivered to a location provided by the Buyer as specified on the Sales Contract. In cases where Buyer wishes to pick up the product or have ship to location changed after entering Contract (Sales Contract), changes will be specified in writing via email sent by the Purchaser.
b) Site Accessibility. Supplier agrees to provide tail gate delivery services for all products delivered under this agreement. Furthermore, in the even the Supplier's delivery vehicle(s) are unable to access delivery site due to size constraints or other impediments, the Supplier will make every reasonable effort to deliver the products as close to the site as possible. Customer acknowledges additional costs may be incurred for delivery to an alternative location and agrees to bear any such costs.
c) Buyer Does Not Have the Right to Specify Delivery Date. Special Order Products are made specifically for Buyer. Seller does not know when the Special Order Products will be ready for Buyer. Any representation as to the delivery date is a rough estimate, and accordingly, Seller shall store the Product for five (5) calendar days without charge, as set forth above in Section 3 (Delivery/Installation, Warranties and Service). Buyer waives any claims against Seller for delay damages.
d) Lead Times. Seller will not accept any responsibility as to the date of delivery for any Products. Delay in delivery or pick-up will not constitute a default by nor result in any liability to Seller.
3.2 Installation and Non-conformity
a) No Installation of Special Order Products by Seller. Seller will not install Products. Buyer is solely responsible for the installation in compliance with applicable laws and regulations.
b) Non-Conformity of Special Order Products. The Buyer is bound not to retract or reject acceptance of any Products unless the nonconformity of said Products is of a significant nature. No flaw, whether it carries substantial weight or not, shall serve as grounds for asserting a breach of the Agreement. Products, whose conformity the Buyer does not contest, are to be compensated in accordance with these stipulations, regardless of any disagreement pertaining to other shipments or undelivered Products. The Seller preserves the right to rectify any imperfections, whether through rectification or substitution, within a reasonable timeframe determined by the Seller, subsequent to receiving written notice of such imperfections from the Buyer. The Buyer is obligated to furnish written notice of any purported defect in the Products upon delivery. Neglecting to furnish timely notice, as delineated above, shall be construed as an irreversible acceptance of the Products.
4. Warranties and Disclaimers. Seller does not offer any warranties for Special Order Products. Any and all warranties are described on the manufacturer's website. In the absence of a manufacturer's warranty, no warranty shall stand or be honored.
a) Seller is not responsible for use of “unrated” products (i.e. DP, NFRC, PG, etc) by buyer.
b) Seller is not responsible for damage or repair in instances where Special Order Products are: 1) Engaged or operated in a manner deviating from Seller's intended use; (2) Altered or mended by hands other than Seller’s personnel or Seller’s authorized service representatives, in a manner that casts a shadow over its operations or reliability; or (3) Suffering damage from accidents, negligence, or misuse by anyone other than Seller’s personnel.
c) Seller is void of all responsibility for (1) any flaw arising from wear and tear, intentional harm, negligence, abnormal working conditions, failure to heed Seller’s instructions (spoken or written), misuse, or meddling or mending of the Special Order Products without Seller’s nod; (2) external turmoil like accidents, abuse, misuse, power predicaments, civil unrest, vandalism, theft, fire, flood, wind, lightning, freezing, or acts of higher powers; (3) hitches induced by installing, removing, or re-installing the Special Order Products or any part thereof; (iv) non-compliant usage; (4) neglecting the care and maintenance routine; or (5) complications from introducing incompatible accessories, parts, or components. THE ABOVE PROMISES APPLY SOLELY TO THE ORIGINAL BUYER AND TAKE PLACE OF ALL OTHER WARRANTIES, BE THEY EXPRESSED, IMPLIED, OR MANDATORY, INCLUDING BUT NOT PEGGED TO IMPLIED WARRANTIES OF MARKETABILITY AND APTNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCE SHALL SELLER BE HELD TO ACCOUNT IN CONTRACT, TORT, OR ANY OTHER REALM FOR DIMINISHED PROFITS, BUSINESS LOSSES, OR OTHER PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, BE THEY IN THE CARDS OR UNEXPECTED. The exemptions from accountability cited above sidestep residents of New Jersey. For them, Seller stays clear of liability unless pinned on Seller’s own negligent or rash deeds or oversights. IN CERTAIN STATES AND/OR JURISDICTIONS, THE RIGHT TO EXCLUDE OR CURTAIL DIRECT, INDIRECT, INCIDENTAL, SPECIAL, AND/OR CONSEQUENTIAL DAMAGES MAY BE UP IN THE AIR, HENCE THE ABOVE LEAVE MAY NOT EXTEND TO YOU.d) Imperfect Conformity to Sample or Model. Prior to commencement of Special Order Products production, Buyer shall evaluate any custom sample requested or paperwork and agree that color or size variations will be per manufacturer’s or industry’s standard tolerances.
5. Billing and Payment Terms
a) Purchase Price. The purchase price of the Product is that sum which appears in the Estimate subject to Section 1 above (the “Purchase Price”).
b) Payments. Unless expressly stated otherwise, the prices included in Estimate and Sales Contract are estimated in U.S. dollars and the Estimate does include delivery charges, fuel surcharges, or estimated sales taxes (based on Ship to Address), all of which will be additionally charged to Buyer by Seller, and will be charged in all documentation identified by Buyer as a Sales Order, or invoice, or any combination of the aforementioned.
i. Buyer will pay the Purchase Price per the agreed upon schedule, which will appear on the Sales Contract. Seller will require a deposit or the full price upon acceptance of the Sales Contract.
ii. Upon delivery, Seller will apply the deposit to the Sales Contract and Buyer shall pay the balance, sales tax, and delivery charges prior to pick-up or delivery of the Special Order Products to the Arrival Site.
6. LIMITATIONS OF LIABILITY
California Window Solutions assumes liability towards the Buyer, whether stemming from contract, negligence, warranty, statute, or any other legal grounds, under the condition that California Window Solutions may opt for any one of the following: (a) the rectification of goods by California Window Solutions or the Manufacturer; (b) the substitution of the allegedly defective or non-conforming goods without any obligation to uninstall or cover the cost of uninstallation of the allegedly defective or non-conforming goods, or to cover the installation expenses of the replacement goods, or any damages resulting from the removal of the allegedly defective or non-conforming goods.
7. ATTORNEY FEES AND JURISDICTION.
a) In the event of California Window Solutions initiating legal action against the Buyer to recover payment for goods sold, the prevailing party is entitled to reasonable attorney fees.
b) Any legal action, whether arising from contract or other causes, must be filed in the Alameda County Superior Court. This Agreement will be interpreted and enforced in line with the laws of the State of California.
8. INDEMNIFICATION. Buyer shall defend, indemnify, and hold California Window Solutions harmless from and against any and all claims by third parties for delays or other damages that are excluded or limited by this Agreement.