[1] Definitions:
A. Seller is Blue Leaf Hospitality Inc. (“Blue Leaf” or “Seller”)
B. Buyer includes the direct purchaser of Seller's goods and all other persons to whom the Seller's goods are sold in the ordinary course of
business.
C. Merchandise are the products sold by Blue Leaf.
[2] Acceptance of Entire Agreement:
All sales by the Seller are made pursuant to the terms and conditions stated herein (“Terms and Conditions of Sale”). No modification or addition to these Terms and Conditions of Sale shall be binding on the Seller unless specifically agreed to in writing and signed by an officer of
the Seller. Acceptance by the Seller of an order from the Buyer is expressly subject to Buyer's assent to these Terms and Conditions of Sale, which prevail over any other terms which may be contained in any purchase order, acceptance acknowledgment, or other form of the Buyer.
Buyer assents that it accepts the goods if it fails to give notice of objection within ten days of receipt of the Blue Leaf Merchandise. These Terms and Conditions of Sale and any modifications or additions hereto, specifically agreed to in writing and signed by an officer of the Seller, contain all the terms and conditions of sale of the goods described on the Blue Leaf Purchase Order Acknowledgment.
[3] Warranties and Disclaimers:
(a) Seller warrants that Merchandise delivered hereunder shall conform to the description as included on manufacturers literature or otherwise set forth in the Buyer’s specifications for the Merchandise. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY EXCLUDED.
SELLER MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE MERCHANDISE OR ITS FITNESS FOR ANY PARTICULAR PURPOSE.
(b) Seller shall not be liable for normal manufacturing defects, for customary variations from specifications, or for any imperfections inherent in the material or process used with respect to the Merchandise. Seller does not guarantee exact matching of color, shade or sizing. In any case, Seller shall not be liable for any damages that result from improper installation of the Merchandise.
[4] Payments, Deposits and Collection:
(a) Payment shall be made in United States currency to the location specified on the Seller's invoice. Any check received from Buyer may be applied by Seller against any obligation owing by Buyer to Seller, under this or any other agreement, regardless of any statement appearing on or referring to such check, without discharging Buyer's liability for any additional amounts owing by Buyer to Seller and the acceptance by Seller of such check shall not constitute a waiver of
Seller's right to pursue the collection of any remaining balance. Time of payment is of the essence hereof. The terms of payment described on the Blue Leaf Proforma are material terms of this Terms and Conditions of Sale and breach by Buyer of any of those terms shall give Seller (in
addition to any other remedy available hereunder) the right to cancel the Buyer’s order for the Merchandise.
(b) Collection: Invoices not paid in whole or in part will result in outstanding balance due by the Buyer to the Seller and may be referred to third parties for purposes of collection. Buyer agrees to pay all costs incurred by Seller in connection with the collection of overdue balances including, but not limited to attorney fees, court costs, lien processing fees, interest and bank fees.
[5] Interest:
Interest may be charged at the rate of 1.5% per month on unpaid invoices after the due date set forth on the Blue Leaf Invoice.
[6] Credit:
Seller may, at its sole discretion at any time and from time to time, change the terms of Buyer's credit, require payment in cash and before shipment of any or all of the merchandise specified herein, and/or require anticipated payments of any or all amounts due under this agreement.
[7] Deliveries:
At Delivery, risk of loss of all Merchandise shall pass to the Buyer; title to the Merchandise shall not pass to Buyer until full payment for the Merchandise, and any costs associated with the collection, thereof, has been received by the Seller.
(a) In the event that delivery of all or any part of the merchandise specified in the Blue Leaf Pro forma is not delivered in a timely manner or prevented by events beyond Seller's control, including, but not limited to strikes, natural or manmade disaster, declared or undeclared war, government regulations, labor disputes and slowdowns, delays in transportation of the products or of the supplies necessary to produce the merchandise sold hereunder, Seller's or its suppliers inability to obtain labor, materials or services through its regular sources, embargoes, lack of shipping facilities or any other circumstance which could not have been avoided with reasonable care,
(i) Seller's time for performance shall be extended by 60 days or Seller may, at its option, cancel this order without liability, Buyer remaining liable to pay for Merchandise already delivered and
(ii) Buyer may, if Seller has not delivered the Merchandise by the last day of such 60-day period, cancel this order, without liability, Buyer remaining liable to pay for Merchandise already delivered.
(b) Returns - No returns are accepted without written authorization from the Blue Leaf Miami office. Authorized returns must be returned freight prepaid. Any materials arriving freight collect will not be accepted. Only material returned in full, unopened cartons will be credited. Damaged material will not be credited. No returns are accepted on non-stocked materials, special orders, custom orders and custom artistic orders.
[8] Claims and Allowances:
Any claimed trade practice, custom, usage, or course of dealing between the parties to the contrary notwithstanding, claims of any kind or nature (including, without limitation, claims on account of defective materials, and excluding only claims on account of defects which are not ascertainable by reasonable inspection) are specifically barred unless written notice thereof is given to Seller within 10 days after receipt of the Merchandise.
[9] Limit of Liability:
Seller's liability and Buyer's exclusive remedy with respect to any breach hereunder, (including, without limitation, breach of warranty) is expressly limited to Seller's choice of (a) the repair of defective Merchandise, (b) the replacement thereof with conforming Merchandise at the delivery point shown on the Blue Leaf Pro forma-,or (c) the repayment of the purchase price.
In no event shall Buyer be entitled to any other damages incidental, consequential or otherwise, for defective goods, late delivery or non-delivery or as a result of any breach hereunder or otherwise and in no instance shall damages include profits on contemplated use or profits of any kind or description.
[10] Design Protection/Intellectual Property:
When an order for products not in the standard Blue Leaf line is produced, Blue Leafs sole responsibility is to provide product(s) meeting the specifications of the customer or its agents and representatives Blue Leaf disclaims any obligation to indemnify or defend customers, property owners, architects, designers, specifiers, customer agents or others for claims alleging infringement of trademarks, copyrights, patents designs or any issues collectively described as intellectual property. Customer confirms that it is originator of specifications for this product and has clear title to said intellectual property and will defend and save harmless Blue Leaf Hospitality, Inc. for any claims (including expenses and reasonable attorney fees) to the contrary.
[11] PRODUCT SPECIFICATIONS AND DIMENSIONS:
All seating dimensions shown in Shop Drawings and Sales Literature are subject to tolerances based on Industry Standards. Due to fabric and foam build up, depths and widths can vary by as much as 3/4". We assume no responsibility for overall dimensions unless specific dimension limitations are noted on the purchase order.
[12] General:
(a) These Terms and Conditions of Sale, together with the applicable purchase order, contain the entire agreement between the parties hereto (“Agreement”) and supersedes any prior oral or written agreements or communications between them relating to the subject matter hereof. No oral representations shall be binding unless set forth in the Agreement.
(b) This Agreement may not be assigned, modified or canceled by Buyer without Seller's prior written consent, and any attempt to assign, modify or cancel this Agreement without such consent shall be void.
(c) The validity, interpretation, construction and enforcement of this
Agreement shall be determined under and pursuant to the laws of the State of Florida. Any legal action or proceeding against Seller with respect to this Agreement or the Merchandise covered hereby must be brought in the Federal or State court located in Miami, Florida. Buyer agrees to pay on demand all costs and expenses of Seller (including, without limitation, reasonable counsel fees and expenses) in connection with Seller's enforcement of this Agreement.
(d) If any covenant, condition or other provision of this Agreement is now or hereafter becomes invalid, unlawful or incapable of being enforced, by reason of any rule of law or public policy, all other covenants, conditions and provisions of this agreement which can be given effect without the invalid, unlawful or unenforceable provision shall, nevertheless, remain in full force and effect, unless such invalidity, unlawfulness or unenforceability materially adversely affects the essence of this Agreement.
