BOARDBROKERS.COM | TERMS OF SALE
Effective Date: May 24th 2011
PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT APPLY TO YOU.
These Terms of Sale (this "Agreement") contain the terms and conditions that apply to sales of goods and materials by Boardbrokers, Inc. (“we,” or “Boardbrokers”) to you or to another person on your behalf (“you” or “Customer”): (a) through, or in response to, the website accessible at www.boardbrokers.com (the “Site”); or (b) through any other means or method of communication, unless a separate, written agreement is specifically executed between an authorized representative of Boardbrokers and the Customer, in which case the terms of that written agreement shall govern over any terms in conflict herewith (or, if so expressly provided in such written agreement, shall entirely replace and supersede this Agreement). As a condition of sale, Customer agrees to be bound by and accepts this Agreement (except as expressly provided above or herein). This Agreement applies to, and governs, all quotations, estimates, purchase orders, invoices, and other documents related to such sales by Boardbrokers. Customer shall be deemed to have accepted and agreed to this Agreement when Customer places, or causes another person to place on Customer’s behalf, an order on the Site, or accepts product(s) purchased from Boardbrokers and/or the Site, or otherwise manifests assent.
These terms and conditions are subject to change without prior written notice at any time, in Boardbrokers’ sole discretion.
1. QUOTATIONS; PLACING ORDERS
See How It Works for information on getting a quote, ordering samples, placing an order, and other terms and conditions (in addition to those contained herein) applicable to ordering product(s) from the Site.
Boardbrokers customer service agents will provide quotes for the cost of shipping immediately prior to the time of shipping. All costs of shipping, tariffs, duties, and similar charges are the responsibility of the Customer, and are in addition to the prices quoted for products.
Availability of stock and other materials is generally first come, first served, subject to previous sale to another customer, and not guaranteed. Boardbrokers shall not be liable for any damages, whether direct, indirect, incidental, special, consequential, or otherwise, based on product unavailability or inability to ship product, regardless of whether an order has been accepted by Boardbrokers (see below for placing holds on products).
To hold a product pending a Customer’s complete order or shipment authorization, Boardbrokers requires a deposit in the amount of 50% of the proposed order. Upon receipt of such deposit, Boardbrokers will hold the specified product for up to 60 days, after which Boardbrokers reserves the right to sell such product to another customer. Boardbrokers reserves the right to cancel any orders that are 30 days past the stated ship date or will-call date on the order, unless the Customer has placed a hold and paid the applicable deposit (subject to release as provided above). An additional service charge of $20.00 applies to all partial order pick-ups. Boardbrokers reserves the right to file a materials lien on large jobs as security for its right to payment.
Custom orders may require special lead times, and Customer must confirm and agree to such lead time before such orders will be deemed binding upon Boardbrokers. Custom orders may require a deposit of 50% of the total order value, with the balance payable within seven days of the earlier of such order arriving (a) at the Boardbrokers warehouse or (b) the Customer delivery location. Boardbrokers charges a US$15.00 per pallet per week handling and storage fee for any order that is not scheduled for delivery or picked up within 30 days of such order being available to Customer.
2. ORDER ACCEPTANCE POLICY
Customer shall place orders by submitting payment to Boardbrokers in response to the quotation or estimate provided by BoardBrokers, however, orders are not binding on Boardbrokers until expressly accepted by Boardbrokers, in its sole discretion, subject to the additional conditions set forth below. Customer’s receipt of an electronic or other form of order confirmation does not signify Boardbrokers’ acceptance of Customer’s order, nor does it constitute Boardbrokers’ offer to sell the applicable product, until Boardbrokers expressly accepts the order. Order acceptance is subject to: product availability; Boardbrokers’ review of Customer’s credit; and receipt by Boardbrokers of any required payment (as set forth herein or in any estimate or other communications from Boardbrokers). In addition, in the case of a custom order, Customer must also expressly approve any samples provided by Boardbrokers before Boardbrokers accepts such custom order. Boardbrokers expressly accepts Customer’s order only when Boardbrokers sends an invoice to Customer, reflecting Boardbrokers’ receipt of Customer’s prior deposits and payments and showing the balance due from Customer (see Section 3). If and when accepted, all orders are deemed to have been accepted in the State of California. Boardbrokers reserves the right at any time after receipt of Customer’s order to accept or decline Customer’s order for reasonable cause including but not limited to lack of availability of products, failure by Customer to satisfy payment terms, and/or breach by Customer of this Agreement. If payment has been remitted for the purchase and Boardbrokers cancels Customer’s order, Boardbrokers shall forthwith issue a refund equal to the amount remitted for the unaccepted or cancelled order.
3. PAYMENT TERMS; SECURITY INTEREST
Terms of payment are within Boardbrokers’ sole discretion and, unless otherwise agreed to by Boardbrokers, payment must be received or otherwise authorized or secured in a form approved by Boardbrokers prior to shipment, pickup, or other availability of an order. Boardbrokers has no obligation to extend credit, however, if Boardbrokers, in its discretion, chooses to extend credit to Customer, the terms shall be net 15 calendar days. Time is of the essence for all payments due by Customer, and IF PAYMENT IS NOT RECEIVED WHEN DUE, THIS AGREEMENT SHALL BE DEEMED BREACHED BY CUSTOMER. Customer agrees to pay Boardbrokers 1.5% per month, 18% per annum (or, if lower, the highest amount allowed by applicable law), on past due amounts as liquidated damages for each month thereafter. Customer agrees it would be impracticable to fix actual damages as a result of such breach and that such liquidated damages are a fair and equitable approximation of actual additional expense incurred by Boardbrokers. Notwithstanding the foregoing, payment of interest will not affect Boardbrokers’ right to demand payment and take legal action to collect delinquent amounts. Should suit be filed to collect any debt, Customer agrees to pay all costs and expenses of collection, including actual administrative costs and attorney’s fees.
A $40 service fee will be charged on all NSF/returned checks. Boardbrokers reserves the right to establish and/or change the credit and/or payment terms extended to Customer when, in Boardbrokers’ sole opinion, Customer’s financial condition or previous payment record warrant such action. Boardbrokers reserves the right to defer further shipments or reschedule deliveries of orders on delinquent accounts. Boardbrokers may invoice parts of an order separately.
Boardbrokers reserves, and Customer hereby grants to Boardbrokers, a security interest in all goods and materials purchased hereunder and in any proceeds therefrom until Boardbrokers has received payment in full of the purchase price and other amounts due hereunder. Boardbrokers shall have all the rights and remedies of a secured party under the Uniform Commercial Code, and Customer agrees, at Boardbrokers’ request, to execute financing statements and to take all such other actions as Boardbrokers may reasonably request to carry out the intent of this paragraph. Customer’s failure to pay any amounts when due shall give Boardbrokers the right to possession and removal of the goods and materials at any time upon Boardbrokers’ demand. Boardbrokers’ taking of such possession shall be without prejudice to any other legal remedies Boardbrokers may have.
All product shipping is F.O.B., Boardbrokers’ facilities, Los Angeles, California, unless otherwise expressly mutually agreed upon in writing. Customer is responsible for all costs related to shipping product to the location specified by Customer. Prices listed do not include any delivery charges; all deliveries are subject to a delivery charge unless prices are specifically quoted as delivered. Title and risk or loss or damage thereto shall pass to Customer at the F.O.B. point whether or not Customer has accepted such goods, and any loss or damage occurring thereafter shall not relieve Customer from any obligation hereunder. Customer agrees to pay all storage and/or shipping charges for redelivery of any failed delivery due to any reason other than Boardbrokers’ error.
The proper loading of will-call or common carrier vehicles (including but not limited to load weight requirements and material tie down) is hauler’s/Customer’s sole responsibility. Unless otherwise mutually agreed in writing, shipping dates are approximate and based on prompt receipt of all necessary information form Customer. Manufacture, shipment or delivery will be subject to any prohibitions, restrictions or regulations imposed by federal or any state government or any subdivision or agency thereof, and Boardbrokers shall not be liable for any delay or failure to perform, in whole or in part, caused by any such provision, restrictions or regulation, or by fires, floods, strikes, work stoppages, accidents, casualties, inability to procure supplies, raw materials or products, delays in transportation, shortages of cars, or other causes beyond Boardbrokers’ control. Delivery dates are estimates only. Boardbrokers shall have no liability for delays in delivery.
Additional storage and/or shipping charges and other warehouse charges may apply if Customer cannot be contacted, or is not available, to receive product; or if product is redirected upon Customer’s request. If a shipping rate is quoted at an incorrect rate due to typographical error or error in pricing information received from Boardbrokers’ suppliers, Boardbrokers shall have the right to refuse or cancel the applicable order, or adjust such order with the Customer’s agreement, whether or not the order has been confirmed or whether or not payment has been remitted. Customer is responsible for inspecting freight for shortages or signs of damage upon receipt of goods.
Customer is responsible for all sales, use, excise, tariffs, duties, value-added and other charges associated with the order, however designated, including without limitation any import duties, tariffs, clearance charges or other destination charges. If applicable and to the extent known by Boardbrokers at such time, a separate charge for such items will be shown on Boardbrokers’ invoice.
6. WARRANTIES; EXCLUSIONS; CLAIMS POLICY
Boardbrokers guarantees that all of our products are free of manufacturing defects on par with National Wood Flooring Association (“NWFA”) standards. However, products are guaranteed only if they have been properly acclimated in accordance with NWFA and The Wood Flooring Manufacturers Association (“NOFMA”) guidelines, which indicate proper moisture conditions for installation.
Any claim on account of defective goods or materials or for any other cause whatsoever shall conclusively be deemed waived by Customer unless written notice thereof is given to Boardbrokers promptly after discovery but not later than 30 days from the (earlier of) the date of shipment, pickup, or other transfer of possession of the product to the Customer. Boardbrokers shall have the right either to replace or repair any defective goods and materials, to refund the purchase price upon return of the goods and materials or to grant a reasonable allowance on account of such defects, and Boardbrokers’ liability and Customer’s exclusive remedy for defective goods and materials shall be limited solely to replacement, repair, refund, or allowances Boardbrokers may elect.
Limited warranties, and exclusions thereto, applicable to products sold by Boardbrokers are set out on the Maintenance & Warranty page located on the Site, and are incorporated herein by reference, subject to all terms, exclusions, and limitations set forth in this Section 6 and the warranty disclaimer set forth in Section 7 (and subject to other limitations set forth on applicable pages of the Site). Such warranties apply to the respective products described on the Maintenance & Warranty page located on the Site in effect on the date of the invoice.
Warranties set forth herein will be effective, and Boardbrokers will be obligated to honor any such warranties, subject to Boardbrokers’ prior receipt of payment in full for the item to be warranted.
The following warranty exclusions are in addition to any Exclusions to Warranty set forth on the Maintenance & Warranty page located on the Site. Without limitation to other exclusions set forth herein, Boardbrokers is not responsible for any claims related to material and or labor after it has been installed, and warranties do not cover materials with visible defects once they are installed.
Customer is responsible for inspecting all material prior to installation. The Customer and/or its installer assumes all responsibility for the final inspection of product quality, which must be complete prior to installation. Without limitation, Customer must carefully examine flooring for quality, finish and color before installing it, and use reasonable selectivity and hold out or cut off pieces with deficiencies, whatever the cause. If material is doubtful as to grade, manufacture or factory finish, Customer must not install it and immediately follow the procedure below for filing a claim. Boardbrokers recommends that Customer refuse delivery of any product that is damaged. Concealed damage must be reported as soon as it is discovered, but no later than 10 days of receiving shipment or otherwise taking possession of the products. For the purposes of clarification, no claims per the process below will be effective, even if filed before the expiration of the 30 day period therefor, unless Customer has also provided such notice of concealed damage (to the extent required hereby) within such 10 day period.
The natural characteristics of wood cause variations in color, grain and the like. Wood checking, worm and beetle holes and heart and sap color contrast are all common characteristics in antique lumber. Even though Boardbrokers’ products are inspected many times, some grading deficiencies may occur and Customer must allow for up to 5% non-conformity of the materials.
ANY EXPRESS OR IMPLIED WARRANTY NOTWITHSTANDING, (1) BOARDBROKERS DOES NOT WARRANT OR GUARANTEE ANY SIZE OR GRADE OF HARDWOOD LUMBER PRODUCTS, MOULDINGS OR FLOORING AGAINST CUPPING, BUCKLING, SHRINKING, ROT WARPING, TERMITE, OR BEETLE INFESTATION; (2) SINCE STICK STAIN IS AN INHERENT PROPERTY OF MANY HARDWOOD SPECIES, IT SHALL NOT BE CONSIDERED A DEFECT IN ANY GRADE OR SPECIES IRRESPECTIVE OF ANY GOVERNING GRADING RULES; (3) DUE TO THE QUALITY DIFFERENCE BETWEEN DOMESTIC AND IMPORTED PLYWOOD, BOARDBROKERS DOES NOT GUARANTEE IMPORTED PLYWOOD AGAINST GLUE BLEED THROUGH, SAND THROUGH, CHECKING AND OTHER MANUFACTURING DEFECTS THAT WOULD IMPAIR THEIR FITNESS FOR USE.
All freight, loss, and damage claims must be filed with BoardBrokers within thirty (30) days from the date the shipment was delivered (in addition to any notification required within 10 days after receipt for concealed damage, as required above) or Customer will be deemed to have waived such claim. A valid claim requires: (i) an inspection report performed by a certified NWFA inspector (list available upon request); and (ii) installation of flooring or other Boardbrokers products in conformance with Boardbrokers’ Installation Guidelines as described in Section 14. Boardbrokers is not responsible for improper installation or handling of materials. The resolution of the claim will be determined reasonably by BoardBrokers based on the findings of the certified NWFA inspection report.
Filing a Claim:
(a) Customers who purchase products from a Boardbrokers’ reseller or retailer must file all claims with the reseller or retailer. BoardBrokers is not obligated to honor any directly filed claim for product purchased indirectly.
(b) For products purchased directly from BoardBrokers, claims must be filed with Boardbrokers’ customer service. A claim form must be completely and accurately filled out and submitted to Boardbrokers via email to firstname.lastname@example.org for review by Boardbrokers’ quality control and claims department. Customer must provide Boardbrokers with all possible information regarding defective goods or materials, including pictures and a detailed explanation of the issue if possible. Following review, Boardbrokers will have a representative contact Customer for claim resolution.
7. WARRANTY DISCLAIMER
BOARDBROKERS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, GUARANTEES OR REPRESENTATIONS NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BOARDBROKERS ALSO DISCLAIMS ANY IMPLIED WARRANTY ARISING OUT OF TRADE USAGE OR OUT OF A COURSE OF DEALING OR COURSE OF PERFORMANCE. BOARDBROKERS DOES NOT WARRANT THAT THE PRODUCT(S) WILL BE ERROR-FREE, OR WARRANT THAT EACH DEFECT WILL BE CORRECTED. BOARDBROKERS DOES NOT WARRANT THAT ALL PRODUCTS COMPLY WITH SPECIFIC GEOGRAPHICAL COMPLIANCE OR REGULATORY RESTRICTIONS. IT IS CUSTOMER’S RESPONSIBILITY TO ENSURE THAT USE OF PRODUCTS PURCHASED COMPLIES WITH LOCAL JURISDICTION CODES AND WITH ALL REGIONAL, NATIONAL AND INTERNATIONAL LAWS AND REGULATIONS.
8. LIMITATION ON DAMAGES
BOARDBROKERS DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN. BOARDBROKERS WILL NOT BE LIABLE FOR DELAY, LOST PROFITS, LOSS OF REVENUE, OR OF BUSINESS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THEY WERE FORESEEABLE OR IF BOARDBROKERS WAS ADVISED OF THE POTENTIAL OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY EXCEPT AS EXPRESSLY PROVIDED HEREIN. CUSTOMER AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCTS OR SERVICES, BOARDBROKERS IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PURCHASE(S) UNDER THIS AGREEMENT WHICH GAVE RISE TO SUCH LIABILITY. THIS LIMITATION WILL APPLY REGARDLESS OF THE FORM OF ACTION (I.E. WHETHER THE LAWSUIT IS IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE).
9. RETURNS AND CANCELLATIONS
Only warehouse stocked products will be eligible for return or cancellation, no custom orders.
Although it doesn’t happen often, at Boardbrokers we understand that you may change your mind about your order once you have received it. Sometimes unexpected changes occur. For this reason, we accept returns on all undamaged, unopened boxes within 5 business days of the Customer’s receipt of the material. Return shipping costs are at Customer’s expense. To cover the labor costs involved, we charge a 30% restocking fee for any returned material. Custom ordered material, including without limitation custom ordered materials and stained or hand-finished material, may not be returned.
Except for special or custom orders to which a shorter cancellation period may apply (or no cancellation may be permitted), as stated on the order, Customer may cancel an order up to 24 hours after Boardbrokers receives Customer’s payment for the order, provided that Customer shall be responsible for any actual costs incurred by BoardBrokers with respect to such order prior to receipt of such cancellation and during the 24 hour period thereafter. Orders cannot be cancelled beyond this 24-hour period. Custom orders cannot be changed or cancelled once they have been produced or shipped from the factory.
All references to monetary amounts, including prices, on the Site and in this Agreement are in U.S. currency.
11. IMPORT/EXPORT CONTROL
Customer acknowledges that products provided by Boardbrokers to Customer under this Agreement may be subject to import and export laws, conventions or regulations, and any use or transfer of the products must be in compliance with all such laws, conventions and regulations. Customer will not use, distribute, transfer, or transmit the products except in compliance with such laws, conventions and regulations. Customer, not Boardbrokers, is responsible for complying with such laws, conventions, regulations, and tariffs for all products transferred between countries.
This Agreement is governed by the laws of the State of [California], U.S.A. and Customer hereby consents to the exclusive jurisdiction and venue of courts in [Los Angeles County], California, U.S.A. in all disputes arising out of or relating to the use of the Site. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect. Unless otherwise specified herein, this Agreement constitutes the entire agreement between Customer and Boardbrokers with respect to Customers’ purchases from Boardbrokers, and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the Customer and Boardbrokers with respect thereto. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Other than as specifically provided in any separate formal purchase Agreement between Customer and Boardbrokers, these terms and conditions may NOT be altered, supplemented, or amended by the use of any other document(s), including Customer’s conditions of purchase, whether Boardbrokers was notified of such conditions before or after the applicable purchase. Any attempt to alter, supplement or amend this document or to enter an order for product(s) which is subject to additional or altered terms and conditions will be null and void, unless otherwise agreed to in a written Agreement signed by both Customer and Boardbrokers. Any conditions of purchase printed on any Customer purchase order, or acknowledgment or acceptance of a quotation, or other document shall be of no effect. No failure by Boardbrokers to insist on strict compliance by Customer with this Agreement, or to exercise any right accruing from any default by Customer shall impair Boardbrokers’ rights in case of Customer’s default continues or in any case of subsequent default by Customer. Waiver by Boardbrokers of any breach of contract shall not be construed as a waiver of any other existing or future breach. This Agreement may not be assigned by Customer without the prior written consent of Boardbrokers. The section headings used herein are for convenience of reference only and do not form a part of these terms and conditions, and no construction or inference shall be derived therefrom.
14. INSTALLATION GUIDELINES
Installation of all products must conform to: (1) Boardbrokers’ Installation Guidelines which are hereby incorporated herein by reference; (2) the installation guidelines of the NWFA, available at http://www.nwfa.org/member/membershipTechGuide.aspx which are hereby incorporated herein by reference; and (3) the following additional instructions:
(a) It is the responsibility of the installer or the Customer to have all sub-flooring areas prepared and dried to a maximum of 5% moisture content prior to flooring installation.
(b) All in-floor radiant heat must be turned on and running at a minimum temperature of 70 degrees for at least 30 days prior to installation.
(c) It is also the responsibility of the installer or Customer to properly protect the floor from any moisture (i.e. from plastering) or other potential damage that the floor may receive between the time of install and final finishing coat.