TERMS AND CONDITIONS OF SALE
Terms and Acknowledgement: This order and any agreement between Customer and TILE WAREHOUSE, INC. (“TWI”) is limited to these terms and conditions. Any additional or different terms in Customer’s forms or other documents are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given. No modification of TWI’s terms and conditions will be binding on TWI unless agreed to in writing by TWI. These terms and conditions supersede any and all prior terms and conditions to the contrary.
Errors and Tolerances: All clerical errors in TWI’s quotations, acknowledgments and invoices/sales receipts are subject to correction. All tolerances, whether in measurement, quantity or otherwise, will be in accordance with TWI’s standards.
Reserving Materials: A deposit is required to reserve (hold) stock materials for more than 24 hours. Customer contact information is required. TWI has ultimate discretion in setting the terms of the hold, and whether the material will be held for Customer.
Delivery: Unless otherwise agreed upon by TWI and Customer, Customer agrees to pick up the products at TWI’s store. Title and risk of loss or damage shall pass to Customer upon delivery of the products to Customer or any carrier at TWI’s store or upon date of Invoice/Sales receipt (if the products are stored at TWI). For special orders that are drop shipped (shipments sent to Customer directly from the factory or distribution point), title and risk of loss or damage shall pass to Customer upon delivery of the products to the Customer’s freight carrier. Installation of a product constitutes Customer acceptance of the product. All lead times are estimates and are not guaranteed.
Special Orders (Custom Orders): “Special orders” are orders for products that are not in-stock. “Custom orders” are special orders. A negotiated deposit is required before TWI will place the order. The remaining balance (if any) is due upon arrival of the special order to TWI or drop ship location. A purchase order will not substitute for a monetary payment. It is highly recommended that Customer order “range samples” and/or photos of any special order prior to order quotation. Any request for site and material inspections by TWI at the factory or distribution point need to be requested in writing prior to quotation. Additional charges may apply if TWI is requested to inspect, send samples, or expedite sample processing and/or shipment after material quotation has been prepared or order received. Range samples and photos are only a representation of material to ship. Actual material to ship is subject to natural and typical variation for any particular product. Any additional criteria requested by Customer relating to a special order needs to be addressed in writing prior to quotation. No changes or cancelation of a special order are allowed under any circumstances after order has been placed. Any quoted lead time to process or ship is an estimate only and is not guaranteed. TWI is not liable for any delays in special order material processing, shipment, arrival, or otherwise.
Inter Store Transfers: Transactions involving “Inter Store Transfers” of merchandise materials may be subject to additional conditions.
Returns: Products may only be returned to TWI in accordance with its posted return policy. Qualifying returns must be made within thirty (30) days of purchase and must be approved by TWI. The invoice/sales receipt for the original purchase must accompany the return. Absolutely no exchanges, refunds or credits are permitted for partial returns of natural stone, for slabs, or for used, damaged or altered goods, goods unsuitable for resale, discounted products, “end of lot” or discontinued or closeout products, sale items, custom items or special orders. All approved returns must be made in unopened units (if applicable), within the original cartons or packaging which must be in good and undamaged condition. Special orders cannot be changed once ordered and are not cancelable, not returnable, and not refundable. All sales are final on slabs, on discounted products, “end of lot” or discontinued or closeout products, sale items, on custom items or special orders.
Claims: Customer is responsible for acceptance of product condition, specification and count at time of pick up or delivery or prior to storage at TWI (whichever occurs earlier) and/or prior to installation. Customer or the slab fabricator must inspect slabs for color, condition, and thickness prior to loading. TWI will assist in loading but it is the driver’s responsibility to properly secure all material. Customer will indemnify and hold harmless TWI from any and against all liabilities, losses, damages, penalties, claims, actions, suits, costs, expenses, and disbursements, including court costs, arising from the loading, transportation or delivery of the materials. Installation constitutes acceptance of any and all materials and no adjustments will be made after installation of the product(s). If the product is drop shipped, Customer is responsible for inspection and acceptance of the shipment (special order) at the factory or at the distribution point prior to shipping. Ceramic tile, porcelain tile, glass tile, handmade products, including tile, grouts, caulks, colorants and natural stone are subject to variations in color, appearance, shading, texture and caliber. Handmade products are subject to additional variations in appearance, size, finish and layout. Natural stone materials are products of nature and no two pieces are exactly alike. Customer and installer are responsible for researching the proper installation method and materials for any products supplied by TWI. TWI will not be responsible for improperly installed material. All claims for damages, shortages, or price differences must be noted on the delivery receipt and reported to TWI’s office via telephone notification within twenty-four (24) hours of receipt of the products. Payment must be received in full for the invoice/sales receipt in which any claim pertains before the claim will be accepted for review. A TWI representative must first complete an investigation to determine the source of the damage/claim and whether a credit will be issued. TWI is not liable for loss or damage by a second party shipper. Damage or delays resulting from second party handling must be filed directly with the company responsible for delivery.
Storage: The granting of storage to Customers of products which are fully paid and purchased from TWI at TWI store locations is at the sole discretion of TWI and on terms determined by TWI. TWI will not be liable for damages to products stored for Customer or for products that are unclaimed by Customer. Customer must provide current contact information and provide updates to TWI of changes to contact information.
Return Check Fees: Accounts with a returned check will be charged $15.00. Should additional checks not clear, the account will be placed on a cash only or cashier's check payment basis.
Warranty and Liability Limitations: NO WARRANTIES, EXPRESS OR IMPLIED, ARE GIVEN BY TWI IN RESPECT OF THE PRODUCTS, AND ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE IS HEREBY EXPRESSLY DISCLAIMED. CUSTOMER IS RESPONSIBLE FOR RESEARCHING WARRANTIES (IF ANY) OF PRODUCTS THAT MAY BE PROVIDED BY THE MANUFACTURER OF THE PRODUCTS. CUSTOMER IS ALSO RESPONSIBLE FOR VERIFYING THE APPROPRIATENESS OF PRODUCTS FOR CUSTOMER’S INTENDED USE AS WELL AS VERIFYING THE PROPER STORAGE, TRANSPORTATION, TEST AND SAFETY DATA, APPLICATION AND HANDLING OF PRODUCTS, TWI SHALL HAVE NO LIABILITY FOR ANY SUCH INFORMATION PROVIDED BY THE MANUFACTURER, MANUFACTURER’S DISTRIBUTORS OR REPRESENTATIVES. IN NO EVENT SHALL TWI BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES RELATING TO THE PRODUCTS COVERED HEREBY, WHETHER BASED ON CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TWI’S AGGREGATE LIABILITY HEREUNDER SHALL BE LIMITED TO THE PURCHASE PRICE FOR THE PRODUCTS COVERED BY THIS INVOICE/SALES RECEIPT. ANY ACTION FOR AN ALLEGED BREACH OF ANY CONTRACT OF SALE IN RESPECT OF PRODUCTS SOLD BY TWI TO CUSTOMER MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE DATE OF SALE.
Force Majeure: TWI shall not be liable for any delay in performance or nonperformance on the part TWI, directly or indirectly caused by fire, explosion, accidents, floods, labor trouble or shortage, war, act or regulation of any government, inability to obtain suitable material, equipment, fuel, power or transportation, act of God, or any contingencies, happenings or causes beyond the control of TWI.
Arbitration: Any controversy or claim arising out of or relating to this order or the breach thereof, shall be settled by arbitration in Kailua-Kona, Hawaii, in accordance with the Arbitration Rules, Procedures and Protocols of Dispute Prevention & Resolution, Inc. Any award rendered by the arbitrator shall be conclusive and binding upon the parties and may be entered in any court having jurisdiction thereof. The expenses of the arbitrator shall be shared equally and the arbitrator shall award to the prevailing party its costs and reasonable attorneys’ fees incurred in connection with the arbitration.
Partial Invalidity: If any condition or provision of these terms shall be held invalid or unenforceable, such condition or provision shall be fully severable and the remainder of these terms shall not be affected by such invalid or unenforceable provision and shall remain in full force and effect.
No Waiver: No failure or delay in exercising any right or remedy hereunder shall constitute a waiver of such right or remedy. The right to require performance hereunder shall not be affected by any previous waiver, forbearance or course of dealing. This means that even if TWI does not immediately require Customer’s strict compliance with these terms, TWI has the right to require Customer to comply with these terms at a later time.
Changes: TWI reserves the right to change prices, terms, and conditions at any time without notice.
Governing Law: This order shall be governed by the laws of the State of Hawaii.