SUPPLIER TERMS AND CONDITIONS
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1. DEFINED TERMS:
The following defined terms have the meanings assigned to them.
1.1The term “Affordable Floors” shall mean Affordable Floors, Inc., and any of it s agents, subsidiaries, and affiliated companies.
1.2 The term “Supplier” or “Seller” shall mean the person, firm, or company with whom Affordable Floors is contracting.
1.3 The term “Order” shall mean the order provided to Supplier by Affordable Floors upon acceptance of the estimate, including all terms, conditions, and specifications set forth in the estimate and related documentation.
1.4 The term "Goods" shall mean all tangible products, materials, or items provided by Supplier to Affordable Floors as specified in the Order, including but not limited to flooring, installation materials, and other physical components required to fulfill the scope of work.
1.5 The term "Services" shall mean all labor, installation, consultation, and other related services performed by Supplier in accordance with the Order.
2. THE ORDER: Supplier agrees to sell, furnish, pickup, and deliver to the specified location, and Affordable Floors agrees to purchase and pay for, upon the terms and conditions set forth herein and any additional special terms that may be identified, the Goods and/or Services, or both, which are the subject of an Order and any specifications or other descriptive material attached hereto or identified by Affordable Floors.
3.ACCEPTANCE: When accepted by Supplier, the Order shall constitute the entire agreement between the parties, and Supplier’s acceptance is hereby expressly limited to the terms set forth herein. In the event that Supplier commences performance of an Order, it shall be deemed an acceptance of the Order. Affordable Floors hereby objects to any additional, contrary or conflicting terms contained in any acknowledgment, confirmation, invoice, or other form of communication from Supplier. No act or course of dealing by Affordable Floors whether receiving, accepting, or paying for any shipment of Goods and/or Services shall waive this provision or constitute an agreement to contrary, additional, or conflicting terms.
4. RIGHT TO INSPECT AND REJECT: All Goods and Services shall be received subject to Affordable Floors’ right of inspection. Supplier agrees to make the Goods available for inspection at each place of manufacture, fabrication, shipment, or other premises, at Affordable Floors’ option. Inspection may occur several months after receiving material. Further, Affordable Floors shall be entitled to a reasonable period of time after discovery of a defect or nonconformity in the Goods and/or Services to reject or revoke acceptance. Supplier may cure such defect or nonconformity by making a conforming delivery before the time for performance has passed. Costs incidental to Affordable Floors’ rejection or revocation of acceptance shall be borne by Supplier. Inspection and acceptance of or payment for any defective or nonconforming Goods and/or Services shall not bar a claim by Affordable Floors for any defect and/or nonconformities and shall not release Supplier from its obligations under the Order. If Goods and/or Services received do not conform to the Order, or if more or less than the quantity ordered are shipped, Affordable Floors may reject such shipment in whole or in part and require Supplier to pick up and remove such rejected goods at Supplier’s expense. Supplier shall remove rejected Goods within ten (10) days of receiving notice from Affordable Floors. Additionally, Supplier may be responsible for any demolition and installation of materials if defects are discovered after initial installation.
5. NOTICE OF DELAY: The Goods and/or Services are required for use by Affordable Floors such that the delivery/pick-up date specified is of critical importance for avoidance of substantial loss to Affordable Floors. Supplier shall prepare and provide Affordable Floors copies of such schedules when requested for monitoring the timely production of Goods and/or Services. In the event of delay, or anticipated delay, resulting from any cause, including force majeure, Supplier shall immediately notify Affordable Floors in writing of the delay or anticipated delay, and Supplier will undertake to shorten or make up the delay by all reasonable means.
6. CHANGES: Supplier shall make no change or alteration in the Goods and/or Services without Affordable Floors’ specific written authorization. Affordable Floors may change the Order or require additional work hereunder at any time and Supplier shall comply therewith, but if such compliance shall require additional time for performance or expenditure by Supplier, the change in price and delivery of the Goods and/or Services shall be mutually agreed to by the parties.
7. WARRANTY: Supplier expressly represents, warrants and guarantees: a) the Goods and/or Services shall conform to Affordable Floors’ or its customer’s specifications and drawings as to quality, description, value and, when accepted in writing by Affordable Floors, to any quotations, samples, models or other representations regarding quality, description or value provided to Affordable Floors by Supplier; b) for a period of twelve (12) months after installation or eighteen (18) months after delivery, whichever comes first, the Goods and/or Services shall be free of any defects in material; c) the Goods and/or Services shall be fit for the ordinary purposes for which such Goods and/or Services are used, as well as for any particular purpose for which the Goods and/or Services are required by Affordable Floors, and d) Supplier’s title to the Goods and/or Services shall be good and its transfer to Affordable Floors rightful, and the Goods and/or Services shall be delivered free from any security interest or other lien or encumbrance, or rightful claim of infringement by any third party. Supplier agrees to promptly repair or replace at its total cost and expense, without any cost to Affordable Floors or its customer, any Goods and/or Services not conforming hereto.
8.DEFAULT AND REMEDIES: If Supplier or any subcontractor of Supplier shall breach any provision of this Order or shall become insolvent, enter voluntary or involuntary bankruptcy or receivership proceedings or make an assignment for the benefit of creditors, Affordable Floors shall have the right (without limiting any other rights or remedies which it may have hereunder or by operation of law) to terminate this Order by written notice to Supplier, whereupon Affordable Floors shall be relieved of all future obligations hereunder except the obligation to pay the reasonable value to Supplier of Supplier’s prior performance (not to exceed the price of the Goods and/or Services actually furnished), and Supplier shall be liable to Affordable Floors for all costs incurred by Affordable Floors in completing or procuring the completion of performance in excess of the price specified in this Order. In addition to the remedies set out specifically in this Order, which are cumulative and not exclusive, Affordable Floors shall have all remedies allowable by law.
9. INDEMNIFICATION: SUPPLIER AGREES TO DEFEND, INDEMNIFY AND HOLD AFFORDABLE FLOORS, ITS SUBSIDIARIES, AFFILIATES, AND AGENTS, HARMLESS FROM ANY AND ALL LOSSES, EXPENSES, AWARDS, AND DAMAGES, INCLUDING COURT COSTS AND REASONABLE ATTORNEY’S FEES, RELATED IN ANY WAY TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, THOSE ARISING FROM CLAIMS OF BREACH OF CONTRACT, NEGLIGENCE, PATENT, TRADEMARK, OR COPYRIGHT INFRINGEMENT, OR UNFAIR COMPETITION) EXCEPT AS TO GOODS MANUFACTURED ENTIRELY TO AFFORDABLE FLOORS’ SPECIFICATIONS AND DELIVERED ON TIME. AFFORDABLE FLOORS SHALL BE ENTITLED TO RECOVER ANY AND ALL COSTS AND EXPENSES INCURRED BY AFFORDABLE FLOORS OR PAYABLE TO THIRD PARTIES FOR LABOR, REMOVAL, RE-WORKING, SCRAPPING AND ANY OTHER COSTS OR TRANSPORTATION EXPENSES NECESSITATED BY SUPPLIER'S BREACH. UPON RECEIPT OF NOTICE, SUPPLIER WILL PROMPTLY ASSUME FULL RESPONSIBILITY FOR THE DEFENSE OF ANY SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR IN ANY WAY RELATING TO THE GOODS OR SERVICES PROVIDED BY SUPPLIER TO AFFORDABLE FLOORS, ITS SUBSIDIARIES, AFFILIATES, OR AGENTS.
10. RISK OF LOSS: Risk of loss of the Goods and/or Services shall not pass from Supplier to Affordable Floors until delivery of the Goods and/or Services and Affordable Floors’ actual receipt and acceptance thereof.
11.TERMINATION: Prior to acceptance of the Goods and/or Services, Affordable Floors shall have the continuing right to terminate all or any part of the Order. Affordable Floors’ only obligation with respect to the terminated part of the Order shall be to pay Supplier for verifiable costs incurred to the date of termination, less any amounts due Affordable Floors by reason of Supplier’s default or any breach of the agreement.
12. TERMINATION FOR CAUSE: Affordable Floors shall have the right to cancel all or any portion of the Order upon (1) Seller's failure to meet delivery schedules as specified herein, (2) for breach of any material term hereunder for which Supplier fails to cure within seventy-two (72) hours after having received written notice of such material breach from Affordable Floors, (3) if Supplier is adjudicated bankrupt or commits an act of bankruptcy, or (4) if any warranty or representation made by Supplier is discovered to be materially false or fraudulent.
13. TERMINATION FOR CONVENIENCE: Affordable Floors may terminate the Order for its convenience in whole or in part at any time without cause. Any such terminations shall be effected by written notice from Affordable Floors to Supplier specifying the extent to which the Order is terminated and the date upon which termination becomes effective.
14. GOVERNING LAW: This agreement shall be governed by and construed in accordance with the laws of the State of Texas without regard to conflict of law principles. The United Nations Conventions on Contracts for the International Sale of Goods and on the Limitations Period in the International Sale of Goods shall have no application to this agreement. Any controversy or claim between the parties or arising out of or related to this agreement or the breach thereof, shall be settled first by mediation, which is a condition precedent to brining a claim, and if not resolved, by arbitration before a single arbitrator in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association unless Seller is joined to another arbitration proceeding by Buyer which may call for more than one arbitrator. The location of the arbitration shall be at a location mutually agreed upon by the parties. Furthermore, Seller agrees that Buyer shall have the exclusive right to join Seller as a party in any dispute resolution procedure (including, without limitation, alternative dispute procedures, mediation, binding arbitration or other judicial or non-judicial proceedings) in which Buyer may be involved arising out of or in connection with the Goods, together with such other suppliers or parties as may be appropriate, where in the judgment of Buyer the issues in dispute are related to the work, performance, or Goods supplied by Seller. The parties agree to accept service of process by certified mail, return receipt requested, or any other form of delivery requiring the party’s signature. The prevailing party in any dispute or claim shall be entitled to recover its attorneys' fees and expenses, including all expenses and fees of experts and consultants, whether incurred in arbitration, any appellate court, or in the enforcement of any arbitration award or judgment.
15. TEXAS VENUE: Seller consents to the jurisdiction of the courts located in the State of Texas with respect to all matters relating to the Order, the Goods and Services, or any provision herein.
16. FORCE MAJEURE: Neither party shall be liable for damages arising from delay in delivery or any other non-performance arising out of causes beyond its control and without its fault or negligence, including but not limited to acts of the public enemy, acts of any government in either its sovereign or contractual capacity, natural disasters, floods, freight embargoes, quarantine restrictions, strikes, fires, epidemics, pandemics, industrial disputes, war, acts of God, time required for obtaining export licenses and other causes beyond such party’s control (any such cause, a “Force Majeure Event”). If the performance in whole or in part of any substantial obligation under the Order is delayed by reason of a Force Majeure Event for a period exceeding three (3) months, the parties shall meet and review in good faith the desirability of terminating or continuing the Order. Supplier shall not be entitled to damages resulting from any such termination.
17. SELLER'S INSURANCE: Seller shall obtain and keep in force for the benefit of itself and the Buyer adequate general liability, workers' comp insurance, and product liability insurance.
18. TAXES: Unless an exemption for tax is applicable or acknowledged herein, Supplier shall identify and remit all sales, use, excise, value added (VAT), goods and services (GST) and other taxes with respect to the Goods and/or Services provided hereunder. Value added tax, where applicable, shall be shown separately on Supplier’s invoice. Supplier shall provide Affordable Floors with such separate tax invoices and related tax payment documentation as are required by applicable law.
19. ASSIGNMENT: Neither party shall be permitted to assign any or all of its rights and obligations under the Order to any third party without the other party's prior written consent which shall not be unreasonably withheld.
20. WAIVER: Affordable Floors’ right to require strict performance of any obligation of Supplier under the Order shall not be affected by any previous waiver, forbearance, or course of dealing.
21.SEVERABILITY: If any provision of the Order or these terms and conditions is held to be invalid or unenforceable, such determination shall not affect the validity or enforceability of any other provision.