Binding Agreement.
Purchaser (signatory on reverse) represents and warrants that Purchaser has read this Agreement in its entirety and agrees that this Agreement shall be binding upon Purchaser, its heirs, successors and/or assigns. Purchaser acknowledges and agrees that this Agreement is contingent upon the execution by Earthcore Industries, LLC (“Seller”) which shall be conclusively evidenced by the signature of Seller’s management representative upon the face of this Agreement. If Seller agrees to allow Purchaser to cancel this Agreement for reasons other than Seller’s inability to meet its obligations hereunder, Purchaser agrees that it shall forfeit deposited amounts as needed to account for the Seller’s out of pocket costs. If, for any reason, Purchaser is entitled to a return of its deposit or a portion of its deposit, Purchaser agrees that it shall not be entitled to any interest, court costs or attorney’s fees for obtaining return of its deposit unless Seller’s retention of the deposit is willful and in bad faith.
No Other Representations or Agreements.
This Agreement sets forth each and every agreement by and between Seller and Purchaser. Any other oral agreements or prior agreements between Seller and Purchaser are incorporated and merged into this Agreement and the contents of this Agreement may not be contradicted by evidence of any prior agreement or of any contemporaneous oral agreements. Purchaser acknowledges and agrees that Seller has not made any representation or warranty to Purchaser, whether or not Purchaser deems such representation or warranty material, that is not specifically included within this Agreement.
Seller’s Right to Terminate Agreement to Install.
If Purchaser has not provided, within sixty (60) days of the date of this Agreement, necessary documentation required to install the Products detailed on reverse, including documentation necessary to receive any required homeowners or condominium association approval or any permit required by any governmental authority to install the Products, then Seller may terminate the Agreement by providing written notice to Purchaser. In the event of such a termination of this Agreement, Seller may retain such an amount from any payment or deposit made by Purchaser to account for its out of pocket costs. Any payment or deposit beyond this amount shall be returned to Purchaser.
Installation Process.
Purchaser shall advise Seller within ten (10) calendar days following installation of the Products if Purchaser believes that Seller has failed to provide any part of the Products purchased under this Agreement. Purchaser agrees that if Purchaser has not timely discovered and given notice that any part of the Products is missing in accordance with this paragraph, then Purchaser will be deemed to have waived and Purchaser will be prohibited from bringing any claim against Seller relating to any part of the Products being missing.
Warning of Dangerous Conditions and Assumption of Risk.
All persons handling the Products must wear adequate protective gloves and other adequate safety and protective clothing and equipment to avoid injuries from the Products. The Products are heavy and dangerous to install. The Products should not be handled or moved without assistance. PURCHASER KNOWINGLY, SPECIFICALLY AND INTENTIONALLY ASSUMES ANY AND ALL RISKS PRESENTED BY THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, RISKS ASSOCIATED WITH THE WEIGHT AND STACKING OF THE PRODUCTS, AND PURCHASER, ON BEHALF OF PURCHASER, PURCHASER’S HEIRS, AND/OR SUCCESSORS AND ASSIGNS, HEREBY RELEASES SELLER FROM ANY LIABILITY FROM ANY AND ALL DAMAGES AND/OR INJURIES SUFFERED THEREBY.
Final Payment.
Final payment is due at the time of the sale of the Products, or at the completion of installation (if installation is by Seller), unless other payment terms have been agreed in writing and set forth on the front page of this Agreement. If a majority of the installation is completed, then a pro rata progress payment shall be made pending final completion. Final payment shall not be made in cash unless approved in advance by Seller. Purchaser will pay Seller interest at the rate of eighteen (18%) percent per annum upon all past due amounts after the installation is approved upon inspection by the appropriate governmental authority. If Purchaser fails to make payment as and when due, Seller shall be entitled to (a) enter Purchaser’s premises, with or without notice to Purchaser, to repossess the Products; and (b) retain all sums previously paid by Purchaser to Seller. Purchaser waives any rights or actions against Seller arising out of entry and repossession and waives any damages caused by the removal of any of the Products. If following the installation of the Products, minor service work which does not affect the operation of the Products is still required, such minor service work shall be considered service follow-up during the warranty period. The existence of any such required service follow-up does not constitute a valid reason to delay payment due to Seller. Purchaser agrees that Purchaser will not make any deductions from or offset against any amounts due Seller pursuant to the terms of this Agreement without the prior written agreement of Seller.
Warranty.
(a) Product Warranty. For a period of one (1) year from the date of delivery to Purchaser of each order for the Products, Seller warrants solely to Purchaser as follows (the “Product Warranty”): (i) the delivered Products shall be of good quality, material and workmanship, merchantable and free from any material defects in manufacture, design and workmanship; and (ii) Seller has good title to such delivered Products and shall deliver them without restriction or condition and free and clear of all liens and encumbrances. Purchaser understands that this warranty only covers the Products and does not extend to any of the installation, firebricks, hardware, footing, vents, ducts or accessories. This warranty does not cover draughting, smoking or puffing of the fireplace systems. EXCEPT FOR THE PRODUCT WARRANTY EXPRESSLY PROVIDED IN THIS SECTION 3(a), TO THE FULLEST EXTENT PERMISSIBLE BY LAW, SELLER MAKES NO OTHER WARRANTIES AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF TITLE, DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT ARE HEREBY EXCLUDED AND SELLER HEREBY DISCLAIMS THE SAME. SELLER MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF TITLE, DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
(b)Repair and Replacement. In the event that Purchaser receives any of the Products in breach of the Product Warranty, Purchaser shall immediately notify Seller of the defect in writing to Earthcore Industries, LLC, 6899 Phillips Industrial Boulevard, Jacksonville, FL 32256, but no later than 15 days after the expiration of the one (1) year Product Warranty period. In the event of a material defect, the Seller shall, at the sole and absolute discretion of the Seller, repair or replace such Products or any component or part of the Products in accordance with this Section 3(b) (the “Product Warranty Services”). The performance of the Product Warranty Services by the Seller shall be the Purchaser’s sole and exclusive remedy for any breach of the Product Warranty. (c) PURCHASER EXPRESSLY AGREES THAT FOLLOWING INSTALLATION OF THE PRODUCTS, PURCHASER’S EXCLUSIVE AND SOLE REMEDY SHALL BE THOSE REMEDIES CONTAINED WITHIN SECTION 7 ABOVE. THERE ARE NO OTHER WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY WHICH EXTEND BEYOND THE DESCRIPTION CONTAINED IN THIS SECTION 7. SELLER’S LIABILITY FOR DAMAGES TO PURCHASER IS EXPRESSLY LIMITED TO THE LESSER OF THE CONTRACT AMOUNT OF THIS AGREEMENT OR THE AMOUNT PAID OR DEPOSITED BY PURCHASER. SELLER SHALL HAVE NO LIABILITY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES INCURRED BY PURCHASER EVEN IF SELLER KNEW, SHOULD HAVE KNOWN OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Sufficiency of Structure.
Purchaser will ensure that any and all walls, structures and other improvements to which the Products are to be attached are of sufficient strength, construction and integrity so as to allow the attachment and installation of the Products in compliance with all applicable building codes and requirements, using Seller’s standard installation procedures, tools and parts. Seller will not be responsible for and is relieved of any and all obligations to install any of the Products or any part of the Products if Seller encounters any hidden or unforeseen condition which interferes with or increases the cost of Seller’s standard installation. It is often difficult for Seller’s salespersons to determine whether a structure will require unusual and/or extraordinary engineering, manufacture or installation of the Products; therefore, if unusual, extraordinary or abnormal conditions arise or become evident as to any portion of the engineering, manufacture and/or installation of the Products in the sole discretion of Seller, then Seller will have the absolute right to cancel this Agreement or the applicable portion of the Agreement, and Purchaser’s financial liability thereafter shall be based upon a pro rata calculation of the contract services provided and Seller’s incurred costs.
Damages During Installation.
Although Seller will use reasonable care in the installation of the Products, Purchaser acknowledges that certain damages to Purchaser’s property as a result of the installation may occur. Purchaser specifically waives any claims for damage that may occur during installation, including but not limited to, cracked, chipped or damaged tile, marble, cracked roofing tiles or other roof damage, damage to landscaping, damage to paint, stucco and plaster, damages from debris, dust or scrap or cement dust, damages caused by the existence of concealed or non-apparent conditions, including the presence of electrical, plumbing, air-conditioning, alarm system or other components not visible to Seller or Seller’s installer and any and all damages or defects resulting from installations requested by Purchaser which depart from conventional installation methods or practices or defects or damages resulting from design changes requested by Purchaser which depart from approved engineering specifications or building codes.
No Damage For Delay.
SELLER SHALL HAVE NO RESPONSIBILITY TO PURCHASER FOR DAMAGE CAUSED TO PURCHASER’S PROPERTY OR FOR PURCHASED EMERGENCY MATERIALS AND/OR SUPPLIES, BECAUSE OF SELLER’S FAILURE TO TIMELY SUPPLY AND INSTALL THE PRODUCTS. If the delivery and installation of the Products require Purchaser or its agents to obtain homeowner association approval or condominium association approval for the delivery and installation of the Products, then in that event Seller’s obligations to perform under this Agreement shall be postponed until receipt of such approval. Purchaser’s obligations under this Agreement shall not be contingent upon any such approval and Purchaser agrees to seek diligently and in good faith to obtain such approval as soon as possible. Purchaser understands and agrees that any dates provided or otherwise represented for the manufacture, completion or installation of the Products are simply good faith, non-binding estimates and do not constitute a material representation by Seller or a material inducement to Purchaser and may be extended and/or delayed due to conditions beyond Seller’s control, including but not limited to, supply and demand, the time of year, availability of material, availability of installers, weather conditions, permitting problems, government approvals and other factors which may delay Seller and its performance under this Agreement. Purchaser acknowledges that additional time which may be necessary for the installation of the Products based upon the foregoing matters.
Legal Proceedings.
If it becomes necessary for Seller to collect or attempt to collect any amounts due and owing under this Agreement, then Purchaser agrees to pay Seller’s costs, including, without limitation, reasonable attorney’s fees and court costs, incurred in connection with such collection. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Florida without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of Florida. Venue of any action hereunder shall be Duval County, Florida. Any judgment obtained by Seller against Purchaser shall bear interest at the rate of eighteen (18%) percent per annum. Purchaser and Seller hereby knowingly, irrevocably, voluntarily and intentionally waive any right either may have to a trial by jury (or to the use of an advisory jury) in respect of any action, proceedings or counterclaim based on this agreement, arising out of, under or in connection with this agreement or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any type whatsoever of any party hereto.
Assignment.
This Agreement shall not be assignable, in whole or in part, by either party without the written consent of the other party; provided, however, that Seller or its successor may assign this Agreement to an affiliate or successor of Seller without the prior consent of Purchaser.