Flooring Deals Direct
STANDARD TERMS AND CONDITIONS OF SALE

Any sale of goods (“Goods”) by Flooring Deals Direct (“FDD”) is made on the express condition that Buyer assents to the promises, terms, and conditions set forth below, whether or not they are additional to or different from any terms and conditions proposed by Buyer.  FDD objects to Buyer’s additional or different terms.

1.  Deliveries.  The Goods will be delivered FOB place of shipment.  Unless otherwise specified on Buyer’s order, shipment may be made by the method or carrier deemed most feasible by FDD.  Freight allowances, if any, are based on rates prevailing on the date of price quotation; Buyer shall pay increases due upon due date for payments of Goods.

2.  Risk of Loss.  After delivery of the Goods to the carrier, and in other circumstances as provided by law, Buyer shall bear all risks of loss, whether or not the products so delivered are conforming or non-conforming, whether or not a right of rejection exists in Buyer’s favor, and whether or not Buyer rightfully revokes acceptance.  The occurrence of any such risk shall not release Buyer from its obligations hereunder.

3.  Warranties and Exclusion of Warranties.  THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.  THERE IS NO WARRANTY WITH RESPECT TO NONINFRINGEMENT OF THE PATENT RIGHTS OF OTHERS.  THERE IS NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE.

4.  Credit.  Any credit is subject to final approval by an authorized officer of FDD at its main office.

5.  Payment Terms.  Payment is due ten days after the date of invoice, unless otherwise stated on the other side.

6.  Service Charge.  Buyer agrees to pay a service charge of the greater of 1 1/2% per month or such amount as is generally charged by FDD to its customers.  However, Buyer is not obligated in excess of the maximum allowed by applicable law on all unpaid amounts after due date.

7.  Modification.  No modification of any promise, term or condition of sale shall be of any force or effect unless signed by an officer of FDD.

8.  Claims of Buyer.  As a condition precedent to recovery of any claim of any kind, Buyer must comply with the following.  All claims of any kind, except nonreceipt, must be made to FDD within thirty days after receipt of shipment.  Claims for nonreceipt must be made in writing delivered to FDD within thirty days after receipt of an invoice.  FDD’s liability for breach of warranty or contract shall arise only upon prompt return of the products claimed to be defective at Buyer’s expense and after due notice to FDD of the claimed breach, as set forth in this paragraph 8.

9.  Buyer’s Exclusive Remedies; Exclusion of Remedies.  Any claim for nonreceipt of all or part of Buyer’s order or any other claim of any kind except
breach of warranty shall be limited to the purchase price of the goods affected, as shown on the reverse side hereof.  FDD’s liability for breach of warranty shall be limited to the furnishing of a like quantity of the same products free from defects, or at FDD’s option, to the refunding of the purchase price of the defective product.  The foregoing shall constitute the Buyer’s exclusive remedies.  FDD IS NOT LIABLE FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES WHETHER OR NOT ANY OTHER OF BUYER’S REMEDIES FAIL OF THEIR
ESSENTIAL PURPOSES.  BUYER WAIVES ALL RIGHT OF OFFSET FOR ANY ALLEGED OBLIGATION OF
FDD NOT ARISING FROM THIS DOCUMENT IN THIS TRANSACTION.  BUYER WAIVES AND AGREES
NOT TO SUE UPON, AND RELEASES FDD FROM, ANY AND ALL LIABILITIES FOR FDD’S BREACH OF CONTRACT AND BREACH OF WARRANTY (EXCEPT AS SET FORTH HEREIN), NEGLIGENCE, STRICT
LIABILITY IN TORT, AND/OR OTHER TORT.  THE WAIVER, AGREEMENT AND RELEASE IN THE
FOREGOING SENTENCE IS BINDING UPON BUYER’S SUCCESSORS IN TITLE AND ASSIGNS.

10.  Risk of FDD’s Nonperformance.  The following shall be hereinafter known as “Nonliability Events”:  action by governmental authority, public enemy, insurrection, rebellion, or riot; fire; explosion; flood; severe weather conditions; accidents; labor trouble or strikes; shortage of inventory, raw material, power or fuel; difficulties with equipment or transportation; or acts of God or any other cause or events beyond FDD’s control.  In the event of delays in delivery or nondelivery of the Goods which, directly or indirectly, were caused by a Nonliability Event or to which a Nonliability Event contributed, FDD shall not be liable for damages, whether direct, incidental or consequential, and (a) the time for performance shall, at FDD’s option, be extended in whole or in part until the termination of the Nonliability Event and for an additional period thereafter reasonably necessary to cure the effects thereof, or (b) at FDD’s option, a part or all of the Goods affected may be eliminated from the contract of sale, without any liability to FDD; and the contract price shall be appropriately reduced.

11.  Taxes and Other Additional Charges.  In addition to the price for the Goods, Buyer will pay FDD the amount of any excise, sales, use, or similar tax relating to the Goods or their sale, and any freight (unless there is an express freight allowance) stop-over charge, lot loading charge, demurrage charges or the like relating to the transportation or storage of the Goods, which FDD is legally obliged to pay, within ten days after the date of an invoice for the charge.


12.  Assignment.  The contract for sale of the Goods is not assignable in whole or in part by buyer without the written approval of FDD, and any attempted assignment shall be void.

13.  Inspection.  Buyer has no right of inspection; inspection shall not be a condition to Buyer’s duty to pay or to any other duty.

14.  No Sales “on Approval” or “Sale or Return”.  No sale is made on approval or under a sale or return.  FDD may, however, at its option, allow a return.  Any such return shall be at Buyer’s sole risk and expense; return shall be effected only upon actual delivery to FDD or as otherwise instructed by it in writing.  No credit, whether by refund on monies paid or by allowance against monies due, shall be given until such actual receipt by FDD of return products in the same condition as they were when delivered to the carrier by FDD for original shipment to Buyer.

15.  Governing Law.  The contract for sale of the Goods shall be governed by the laws of the Commonwealth of Massachusetts.

16.  FDD’s Non-Exclusive Remedies.  Upon any breach by Buyer of any promise, term, and/or condition contained herein, including, but not limited to, the nonpayment by Buyer of any amount due hereunder, or if FDD deems itself insecure, FDD may, at its option, and without prejudice to or limitation of any other legal remedy hereunder, by law, or otherwise, resort to one or more of the following remedies:   (a) Suspend further deliveries, even though partial payment for undelivered Goods has been received.   (b) Demand adequate assurance of due performance, including, but not limited to, the delivery to FDD of a third-party bond satisfactory to FDD.   (c) Identify to the contract finished or unfinished Goods at Buyer’s sole risk of loss, which will then immediately pass to the Buyer.   (d) Declare the unpaid balance of the contract immediately due and payable.   (e) Collect from Buyer all costs of collection, including, but not limited to reasonable attorney’s fees, incurred in enforcing any right or remedy hereunder or in law, pertaining in whole or in part to the Goods.   (f) Repossess and/or reclaim the Goods or any part thereof.  Buyer hereby agrees, upon demand, to assemble the Goods or any part thereof to FDD, at Buyer’s expense, all in accordance with FDD’s instructions.  Buyer hereby grants FDD a security interest in the Goods and any and all proceeds thereof and accessions thereto to secure all of Buyer’s obligations hereunder under this or any other agreement.  Buyer hereby irrevocably appoints FDD as the Buyer’s lawful attorney-in-fact to execute and file all documents necessary or desirable to effectuate the purpose of this paragraph, including but not limited to, appropriate financing statements.  A photostatic copy of this document may be files as a financing statement.

17.  Integration Clause.  This document constitutes the entire agreement of the parties as to the subject matter hereof.

18.  No Guarantee of Treated Lumber.  Unless expressly agreed on the other side using a specific reference to treated lumber, FDD does not warrant that treated lumber contains any particular amount of treatment material, nor that treated lumber will be suitable for installation on or below ground, nor that treated lumber conforms to the rules of any association or usage for trade.  Such warranties are available at an appropriate price increase.

19.  Lumber Grades.  Lumber grades shall be determined by the rules of applicable trade associations (National Hardwood Lumber Association for hardwoods and cypress) or, in the absence of such rules, on procedures which are customary in the industry and on other trade customs.  In case of conflict among trade associations, the rules of the trade association of which the Seller is a member, or which is relied upon by Seller in the ordinary course of business, shall control.