TERMS AND CONDITIONS FOR THE TILE BONEYARD– ALL SALES FINAL
STANDARD TERMS AND CONDITIONS
These Standard Terms and Conditions (“Standard Terms”) gov- ern all sales by Arto Brick / California Pavers doing business as The Tile Boneyard (“Boneyard”) of concrete and tile products (“Products”) to buyer (“Buyer”). By purchasing Products from Boneyard, Buyer agrees to be bound by these Standard Terms.
ALL PURCHASES FROM THE BONEYARD ARE AS-IS.
ALL SALES ARE FINAL.
NO RETURNS, EXCHANGES, OR CREDITS ARE OFFERED FOR BONEYARD PRODUCTS.
THERE ARE NO EXCEPTIONS TO THIS POLICY.
ABOUT: Boneyard offers overstock and deadstock Product in as-is condition at a significant discount from retail value. Packaging and/or Product may have damage or wear and tear. Because of the heavily discounted pricing, ALL BONEYARD SALES ARE AS IS AND FINAL.
LOTS: Boneyard products may be sold in groups or “lots” which contain multiple pieces. All counts or square footage listings are estimates. If the count or square footage is crucial, a Buyer should see the material in person before purchase.
PRICES: Prices for Products are as marked on the Boneyard website or on a box by box basis at the discretion of Boneyard staff. Boneyard may also publish prices for Products from time to time and may change these prices without prior notice.
PAYMENT: Payment for Boneyard Product is due in full at the time of sale and must be made before Boneyard Product leaves the Boneyard. Buyer shall reimburse Boneyard for all costs and expenses (including, without limitation, attorneys’ fees and costs) incurred in collecting past due amounts and/or declined payments. Boneyard retains all rights to sell or dispose of Product until payment is made by Buyer.
TAXES: Prices for Products do not include any local, state, fed- eral or international taxes, duties or similar fees and amounts, all of which are for the account of and paid by Buyer.
INSURANCE: Insurance is recommended and is the sole responsibility of Buyer.
DELIVERY AND RISK OF LOSS: Title and all risk of loss, damage and destruction to Products pass to Buyer on the first of: (1) delivery by Boneyard to the carrier, or (2) Buyer takes physical custody of the Product.
CANCELLATION AND RETURNS: Boneyard does not offer cancelations of any order for Product. Boneyard does not offer returns of any Product. Boneyard does not offer refunds of any Product. ALL SALES ARE AS-IS AND FINAL.
ACCEPTANCE AND INSTALLATION: Buyer is deemed to have accepted the Products at the time Buyer pays for them. Buyer and Buyer’s agents (and user and project owner and their agents) are solely responsible for all costs, expenses and liability relating to, based on or arising from the selection, storage, application, inspection, installation and sealing of the Products. BONEYARD IS NOT RESPONSIBLE FOR IMPROPER INSTALLATION OF BONEYARD PRODUCTS.
WARRANTY AND DISCLAIMERS: Boneyard makes no warranty related to Products. EXCEPT AS EXPRESSLY SET FORTH IN THESE STANDARD TERMS, BONEYARD MAKES NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Buyer acknowledges and agrees that (a) the Products are handcrafted products and are subject to efflorescence, porosity, color change, wear, the development of a patina and variation of surface texture, size and color and (b) all weights and dimensions (which may contain an allowance for joints) may vary within accepted standards for handcrafted products. Boneyard makes no warranty, express or implied, of any kind whatsoever, including merchantability, with respect to any of the foregoing. Boneyard has not authorized any person or entity to make any warranty on its behalf and will not be liable in any manner if any person or entity does so.
LIMITATION OF LIABILITY: BONEYARD IS NOT LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THOSE ARISING FROM CLAIMS OF NEGLIGENCE OR NEGLIGENT MISREPRESENTATION. THIS LIMITATION EXTENDS TO THE RECOVERY OF LOST PROFITS, BUSINESS INTERRUPTION LOSSES, LABOR USED TO REMOVE OR REPLACE PRODUCTS AND CLAIMS FOR LOSS OF GOODWILL. THIS LIMITATION OF LIABILITY APPLIES TO CLAIMS FOR DAMAGES ARISING FROM CONTRACT, TORT OR OTHERWISE, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON ANY CAUSE OF ACTION, AND WHETHER OR NOT BONEYARD IS OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL BONEYARD’S TOTAL LIABILITY FOR DAMAGES RELATING TO, BASED ON OR ARISING FROM THE PRODUCTS EVER EXCEED THE PRICE BUYER HAS ACTUALLY PAID FOR SUCH PRODUCTS, REGARDLESS OF THE NATURE OF THE CLAIM. THIS CLAUSE IS INDEPENDENT OF ANY OTHER LIMITATION OF LIABILITY, AND RELFECTS A SEPARATE ALLOCAITON OF RISK FROM PROVISIONS SPECIFYING OR LIMITING A PARTY’S REMEDIES
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COMPLIANCE WITH LAWS: Buyer shall comply with all appli- cable federal, state and local laws, ordinances, rules and regulations with respect to its use and/or sale of the Products.
INDEMNIFICATION: Buyer shall indemnify, defend and hold harmless Boneyard and its affiliates, representatives, agents, shareholders, directors, officers and employees from and against any and all loss or damage (including, attorneys’ fees and costs) incurred in connection with any suit or proceeding brought against them insofar as such suit, action or proceeding is based upon a claim based on, relating to or arising from (a) any breach by Buyer or Buyer’s agents (or user or project owner or their agents) (collectively, the “Indemnifying Parties”) of any provision of these Standard Terms or (b) the selection, storage, application, inspection, installation or sealing of the Products, (c) the failure of any of the Indemnifying Parties to follow written instructions or (d) the combination of the Products with other products.
INDEMNIFICATION PROCEDURE: Buyer has the right to: (a) employ attorneys to institute or defend any action, suit or proceeding, which attorneys must be reasonably acceptable to Boneyard, (b) take any other reasonably appropriate steps to protect all rights and interests at issue and/or (c) settle, compromise in good faith or in any other manner dispose of any suit, action or proceeding, and satisfy any award or judgment that may be rendered, except that no compromise, settlement or other disposition of any such suit, action or proceeding may be effected or committed by the Indemnifying Parties without the consent of Boneyard, which will not be unreasonably withheld.
INDEPENDENT PARTIES: Nothing contained in these Standard Terms will create or be construed as creating, a joint venture or partnership between Boneyard and Buyer. Neither Boneyard nor Buyer is, by virtue of these Standard Terms or otherwise, authorized as an agent or legal representative of the other. Neither Boneyard nor Buyer is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other, or to bind the other in any manner.
NO THIRD PARTY BENEFICIARY: Nothing contained in these Standard Terms will be deemed to create, or be construed as creating, any third party beneficiary right, remedy or action for any third party or entity.
GOVERNING LAW, VENUE AND JURISDICTION: These Standard Terms are entered into in the State of California, and their validity, construction, interpretation and legal effect will be governed by the laws and judicial decisions of the State of California (irrespective of California’s choice of law principles). Any legal action or proceeding arising from, based on, or relating to these Standard Terms will be filed only in an appropriate State or Federal Court located in the County of Los Angeles, California. Each of Boneyard and Buyer hereby irrevocably consents and submits to the exclusive personal jurisdiction of such courts for the purposes of litigating any such action, and waives any objection to such jurisdiction it may have based on forum non conviens or any similar doctrine.
ATTORNEYS’ FEES: The prevailing party in any legal action, suit or proceeding based on, relating to or arising from these Standard Terms shall be entitled to recover its reasonable attorneys’ fees and costs from the other party. Any party who unsuccessfully seeks to avoid this contract’s limitations on liability extra-contractual claims, or otherwise, shall be liable to Boneyard for reasonable attorneys’ fees and expenses incurred by Boneyard in defending such claims.
ENTIRE AGREEMENT: These Standard Terms constitute the entire understanding and agreement, and supersede any and all prior or contemporaneous representations, understandings and agreements, written or oral, between the parties with respect to the subject matter of these Standard Terms. These Standard Terms will prevail and be given precedence over any terms or conditions that appear on Buyer’s purchase orders, acknowledgements and other documents and forms unless otherwise agreed upon by the parties in writing.
AMENDMENTS: No provision of these Standard Terms may be amended, supplemented or modified except by a writing that is signed by the parties.
WAIVER: No waiver of any provision of these Standard Terms, or of any rights or obligations of the parties, will be effective except pursuant to a written instrument signed by the parties, and any such waiver will be effective only in the specific instance and for the spe- cific purpose stated in such writing.
SEVERABILITY OF PROVISIONS: In the event that any portion of these Standard Terms is held invalid or unenforceable, such portion will be deemed modified so as to make it valid and enforceable, consistent with the parties' intentions or if it cannot be so modified, will be deemed stricken, with the remaining portions of these Standard Terms to remain in full force and effect.
BINDING EFFECT: These Standard Terms will be binding upon and inure to the benefit of each of the parties and their respective successors, heirs and assigns.
FORCE MAJEURE: Boneyard will not be deemed in default if it or its performance or obligations are delayed or become impossible or impractical by reason of any act of God, war, fire, earthquake, labor dispute, sickness, accident, civil commotion, epidemic, act of government or government agency or officers, or any other cause beyond the control of Boneyard.
HEADINGS: The headings to sections of these Standard Terms are for convenience or reference only and do not form a part of these Standard Terms and will not in any way affect their interpretation.
INTERPRETATION: In these Standard Terms, whenever the context so requires, the masculine, feminine and neuter genders in- clude the others, and the singular and plural include the other.
CONSTRUCTION: There is no presumption against Boneyard on the ground that it was responsible for drafting these Standard Terms.
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