The Terms and Conditions (“Terms”) contained herein apply to all quotations and offers made by RINCON DISTRIBUTION LLC (“Terrain”) and to all purchase orders accepted by Terrain. These Terms may in some instances conflict with some of the terms and conditions affixed to a Buyer’s purchase order or to any other procurement document issued by the Buyer. In such cases, the Terms contained herein shall govern, and acceptance of Buyer’s order is conditioned upon Buyer’s acceptance of the Terms and Conditions herein, irrespective of whether the Buyer accepts these conditions by a written acknowledgement, by implication, by acceptance of products ordered, or by payment for products ordered. Terrain’s failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of the provisions herein. Any changes in the Terms contained herein must specifically be agreed to in writing, signed by an officer of Terrain before becoming binding on either party. Terrain reserves the right at any time to amend these Terms and Conditions, and Buyer shall be deemed to accept such amended Terms and Conditions by ordering products offered after the date of such amendment.
QUOTES AND PRICES
All pricing quotes must be documented in writing and issued by Terrain to be valid. Unless otherwise stated, prices quoted are firm for 90 days from the date quoted. Prices do not necessarily include state, local, federal or other taxes and duties, and the same will be additionally charged unless a valid tax exemption or re-sale certificate is furnished to Terrain prior to shipping. State and local taxes, when charged, are assessed based on those rates in effect at the Terrain location selling or servicing the Buyer. All state, local, federal or other taxes and duties are the responsibility of the Buyer. Terrain’s failure to assess or collect adequate taxes at the time of sale does not relieve Buyer of the responsibility for actual tax liabilities.
All Terrain tiles are nominal sizes. Sizes and prices include recommended joint allowances and joints shall not be deducted when estimating quantities. Buyer agrees that special order or Non-Stock Product orders are non-cancelable.
All orders, shipments and deliveries by Terrain are subject to credit approval by Terrain’s Credit Department. Terrain reserves and Buyer hereby grants Terrain a security interest in any products sold to the extent of the invoiced amount. If Buyer defaults under any obligation hereunder, Buyer agrees to make products available so that Terrain can repossess them. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement. Upon Terrain’s request, Buyer will execute any documents to perfect Terrain’s security interest in any products. Terrain reserves the right in its sole discretion to require prepayment from any Buyer at any time and may refuse to sell and/or withhold further shipment until all overdue balances are made current. Buyer shall be liable for, and shall reimburse Terrain for all costs and expenses it may incur in connection with collection of any amounts owed or in enforcement of its rights, including without limitation, reasonable attorneys’ fees
and expenses, court costs, and cost of collection agencies.
Buyer’s obligation to pay outstanding invoices and all other amounts is not subject to reduction, set-off, counterclaim, or Buyer’s receipt of payment from any third party. Buyer shall pay Terrain on a timely basis pursuant to the credit terms provided and shown on Terrain’s invoice. No check, money order, credit card, electronic payment or other form of payment shall constitute payment until it is paid by the bank on which it is drawn or by the institution of issue transmission. Terrain, in its sole discretion, reserves the right to specify the form of payment acceptable for settlement of invoices and other amounts (i.e. check, certified check, money order, credit card, wire transfer, ACH, or other electronic or non-electronic form or payment). Any disputed amounts should be reported immediately and remitted with the undisputed amount by the payment due date. All billing disputes must be made within thirty (30) days of the applicable invoice date, or will be deemed to be waived.
Balances remaining unpaid at the due date are subject, at the sole discretion of Terrain, to the assessment of late fees applied at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, until paid.
TITLE AND DELIVERY
All shipments by Terrain are F.O.B. Terrain’s facility, or, if applicable, the facility of a Terrain affiliate or agent. Title and risk of loss or damage to products passes to Buyer upon delivery to Buyer, or a common carrier, at Terrain’s facility, or, if applicable, the facility of a Terrain affiliate or agent. Buyer acknowledges and agrees that delivery dates, when quoted, are estimates only and may be changed. Terrain will use reasonable efforts to deliver in accordance with quoted delivery dates. However, Terrain shall not be liable for nonperformance or delays caused by a shortage of raw materials, manufacturing problems, delivery or labor problems, priorities, acts of regulatory agencies or judicial bodies, discontinuation of a product line, acts of God or third parties, infringement claims, or other causes beyond its reasonable control. Terrain reserves the right to make delivery in installments. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delay of any shipment shall not relieve the buyer of its obligation to accept remaining installments. If part or all of the products are to be delivered from outside of the continental borders of the United States, and such products are not available for any reason, then Terrain may in its reasonable discretion replace the same with like products, but shall be under no obligation to do so. If Terrain does not replace same, then Terrain shall notify Buyer within a reasonable period of time and as Buyer’s sole and exclusive remedy Terrain shall give Buyer credit based upon Buyer’s prepayments, if any, for the products.
INSPECTION AND ACCEPTANCE
Any product sold or provided by Terrain shall be deemed accepted by Buyer upon delivery. Claims for damage, shortage or errors in shipping must be recorded on the original receiving documents and reported within 7 days following delivery to Buyer. It is the Buyer’s responsibility to inspect all merchandise prior to installation. If for any reason the material is incorrect or unacceptable for installation, Buyer shall make such claim to Terrain, in writing, before installation. Terrain’s liability in respect to all claims shall be limited to accepting the return of incorrect or unacceptable product before installation, and then only after Terrain has been notified in writing that the material is incorrect or unacceptable and has had the opportunity to inspect the product and conduct its own investigation. All claims for incorrect or unacceptable product should be received in writing within 7 days from shipment date and prior to installation. Installation of product is deemed acceptance of product and Terrain shall not be liable for, and will not recognize, claims made after the start of the installation including claims of incorrect product; claims of incorrectly sized, colored, shaded, calibrated, or packaged product; claims of product not matching prior shipments; and/or any other product claims. Terrain shall not be responsible for improper installation of products.
Special order or Imported Product are not returnable and deposits on such are non-refundable. All product accepted for return must be in its original, unopened packaging, in full case quantities, and in good condition – suitable for resale. Additionally, all costs of returning product to a Terrain facility, or the facility of an affiliate, agent or original manufacturer, will be the responsibility of the Buyer. After the assessment of all costs of return, Buyer’s account will either be credited for the excess of its deposit over such costs, or charged for the net of such costs in excess of its deposit.
Buyer shall at its own expense apply for and obtain any permits and inspections required for the installation and/or use of Terrain’s products. Terrain makes no promise or representation that the products will conform to any federal, state or local laws, ordinances, regulations, codes or standards. Terrain shall not be responsible for any losses or damages sustained by the Buyer, or any other person, as a result of improper installation or misapplication of Terrain’s products. Buyer shall indemnify and hold harmless Terrain and its agents and employees against any loss, damage, claim, suit, liability, judgment or expense (including, without limitation, attorney’s fees) arising out of, or in connection with, any injury, damage to or loss of any property, or violation of any applicable laws or regulations resulting from, or in connection with, the sale, transportation, installation, use, or repair of Terrain’s products by the Buyer.
Terrain warrants only to its immediate Buyer, and to no other person, that its products will, on the date of shipment, meet the terms of Terrain’s Bid Confirmation, Order Acknowledgement, or Sales Order pursuant to which such products were sold. Manufactured Products: Terrain warrants that manufactured products will be free from defect for a period of one year from date of purchase. Defect is defined as a shortfall in the product to perform to specifications as disclosed in product or trade literature, within industry allowable tolerances as set forth in standard, national industry protocols. This one-year express warranty is the sole warranty extended and replaces any statutory warranties to the maximum extent allowable by law. Customer misuse including negligence, physical, or chemical abuse is not covered by this warranty. Installation defects or installations that violate building codes are not covered by this warranty. All warranty claims must be reported immediately. Failure to report any warranty claim within 30 days of defect discovery will void this warranty. All products must be inspected prior to installation. Visual defects or nonconformities apparent prior to installation voids this warranty. Manufactured tile is subject to variation due to an inherent variability in raw materials and production processes. All products should be inspected prior to installation. Natural Stone Products: Natural stone products, including, but not limited to, travertine, limestone, granite, marble, onyx, and slate, are products of nature mined and cut from natural formations which may inherently contain high levels of variation. Because these products are mined and cut from natural formations instead of manufactured, quality warranties are limited to the specified representations in Terrain product literature, trade product literature, and guidelines established by the Marble Institute of America. Terrain does not warrant natural stone products for shade, size, thickness, warping, cleft variations, surface finish variations, or other natural defects on stone products.
TERRAIN DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
THE LIABILITY OF TERRAIN UNDER ANY THEORY OF LIABILITY (WHETHER CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) SHALL BE LIMITED AS FOLLOWS: THE SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY, EXPRESS OR IMPLIED, SHALL BE THE REPLACEMENT OF DEFECTIVE GOODS, OR, AT TERRAIN’S OPTION, REFUND OF THE PURCHASE PRICE OF SUCH DEFECTIVE GOODS. IN NO EVENT SHALL TERRAIN BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, OR OTHER DAMAGES BY REASON OF ANY BREACH OF WARRANTY, OR ANY DELAY OR FAILURE IN DELIVERY, WHETHER OR NOT TERRAIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Buyer acknowledges and agrees that the foregoing disclaimer of warranties and limitations on Terrain’s liability are an essential basis for Buyer’s agreement with Terrain, that Terrain would not have entered into this agreement but for such provisions, and that the exclusion of special, incidental, consequential, indirect or other damages shall apply and be enforced whether or not Terrain is able to replace any defective goods or complete any delivery. Any suit or other legal action that Buyer may bring against Terrain arising out of the sale of goods or other transactions contemplated hereby (whether in contract, tort, strict liability or otherwise) must be filed within 12 months from the earlier of (i) delivery of goods hereunder, or (ii) the date of Terrain’s alleged breach. Buyer’s failure to file within such period shall be deemed to act as a waiver and time bar for any and all claims against RINCON DISTRIBUTION LLC.
Terrain’s waiver of any of these Terms in any instance is limited to that instance and does not imply that Terrain will waive such Terms on any future occasion.
Terrain and Buyer agree that this agreement shall be deemed made in Los Angeles, California; that the internal laws of California shall govern; and that the state or federal courts sitting in Los Angeles County, California shall have jurisdiction and are the proper venue for all actions hereunder.