LIFEGUARD STRUCTURES, LLC
TERMS AND CONDITIONS OF SALE
This Agreement (the “Agreement”) is entered by LifeGuard Structures, LLC (“LGS”) and the Buyer (the “Buyer”). The parties hereby agree as follows:
The terms and conditions of sale in this Agreement apply to all quotations issued and purchase orders accepted by Lifeguard Structures, LLC (“LGS”) for the sale of its products (“Products”), except in the case that LGS and buyer (“Buyer”) have executed a written agreement that explicitly supersedes these Terms and Conditions. These Terms and Conditions will apply whether or not they are enclosed with the Products sold by LGS to Buyer.
A. If Buyer desires to purchase Products from LGS’s catalog or website, Buyer agrees to these terms and conditions.
B. If Buyer desires to purchase custom or special-order Products (i.e., any Product other than those from LGS’s catalog), Buyer will provide all necessary information to LGS along with a request for a written quotation from LGS (a “Quote”). If Buyer desires to purchase the Products as quoted by LGS, Buyer will, within any time period specified in the Quote, submit a written purchase order signed by an authorized representative of Buyer along with a copy of the Quote.
C. Orders are to be paid in full at the time of order. No order will be binding on LGS unless and until LGS accepts Buyer’s order and sends Buyer an order confirmation (“Order Confirmation”), which will confirm the quantity of Products purchased and the selling price, and will specify an approximate shipment date (“Order Confirmation Shipment Date”). LGS reserves the right to require extra charges in situations in which Buyer requests and LGS agrees to the scheduling of any accelerated or “rush” delivery dates.
D. LGS’s acceptance of Buyer’s order is expressly conditioned on Buyer’s unconditional assent to the terms and conditions in this Agreement, in lieu of any terms and conditions in Buyer’s order or in any other Buyer communication. LGS hereby rejects any terms or conditions in Buyer’s order or in any other Buyer communication that conflict with or that purport to add to or modify the terms and conditions in this Agreement. All such Buyer terms and conditions will be deemed stricken and will be null and of no effect.
E. No accepted order for custom or special-order Products may be cancelled by Buyer. Cancellation of other orders is permitted without charge only if LGS receives Buyer’s cancellation notice prior to the start of production of the ordered unit, and in any event no later than 30 days prior to the Order Confirmation Shipment Date. Any order cancellations following that time will result in loss of the Buyer’s deposit.
F. Buyer may reschedule an order one time only, provided that LGS receives Buyer’s written request to reschedule no later than 30 days prior to the Order Confirmation Shipment Date and Buyer’s requested shipment date is no more than 14 days after the Order Confirmation Shipment Date.
4. SHIPMENT AND DELIVERY
A. For orders within the U.S., LGS will ship the Products FOB LGS’s point of shipment. For orders outside the U.S., LGS will ship the Products Ex-Works (Incoterms 2000) LGS’s point of shipment. Unless otherwise agreed in writing, LGS will pack the Products in accordance with its standard practices. Unless Buyer provides LGS with specific instructions, LGS will select the carrier. Any shipping charges appearing on the order or Order Confirmation are estimates only. Buyer will be responsible for all actual freight, packing, insurance and other shipping-related costs and expenses. Title to the Products and risk of loss will pass to Buyer upon LGS’s delivery of the Products to the carrier.
B. Buyer acknowledges that all scheduled shipment dates, including the Order Confirmation Shipment Date, are estimates only. LGS will make reasonable efforts to meet the scheduled shipment dates, but in no event will LGS be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery, nor will the carrier be deemed an agent of LGS. LGS will have the right to ship the Products in installments. LGS will have the right to allocate its available inventory of the Products among its buyers in such manner as LGS deems equitable. LGS will have the right to delay or suspend shipment of the Products if Buyer fails to make any payment as provided in this Agreement.
5. INSPECTION, ACCEPTANCE, RETURNS, AND REPURCHASES
Buyer will have a period of two (2) business days following receipt of a shipment of the Products to inspect the Products for defects and must reject them in writing within such period. If Buyer rejects the Products, Buyer must provide LGS with the specific reasons for such rejection and provide LGS a reasonable opportunity to inspect or replace all or a portion of the Products. If Buyer fails to notify LGS in writing of its rejection within such two business day period, then the Products will be deemed accepted. Buyer may return rejected Products to LGS only upon LGS’s prior written authorization. Buyer agrees that LGS may impose a minimum ten percent (20%) handling charge on any returned shipment, regardless of the reason for its rejection.
6. PRICE AND TAXES
A. The prices for the Products will be as specified in the Order.
B. Prices are stated in U.S. dollars and are exclusive of all applicable sales, use, excise, withholding, value-added and other taxes, duties and charges (collectively, “Taxes”). Unless Buyer timely provides LGS with a tax-exemption certificate acceptable in the appropriate taxing jurisdiction, LGS will include all Taxes as separate items on LGS’s invoice, which will be payable by Buyer pursuant to Section 7 below. Buyer will indemnify and hold LGS harmless from and against any liabilities, interest, penalties or fees assessed against LGS arising from any failure by Buyer to pay any Taxes or to do so in a timely fashion.
7. PAYMENT TERMS
A. Any wire transfer fees, credit card fees or charges, and the like will be borne or reimbursed by Buyer.
8. LIMITED WARRANTY AND DISCLAIMERS
A. LGS warrants that, for a period of one (1) year after the date of shipment by LGS, the Products will be free from defects in materials and workmanship under normal use. AS LGS’S SOLE LIABILITY AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN, LGS WILL, AT ITS OPTION AND EXPENSE, REPAIR OR REPLACE ANY PRODUCT RETURNED TO LGS DURING THE WARRANTY PERIOD THAT DOES NOT COMPLY WITH SUCH WARRANTY, AS CONFIRMED BY LGS. Replacement Products will be warranted for the remainder of the original warranty period or ninety (90) days, whichever is longer. All Products that are replaced become the property of LGS. Buyer must obtain a Return Materials Authorization number from LGS prior to returning any Products to LGS, and Buyer will bear the cost of returning Products to LGS. If LGS determines that a Product returned by Buyer complies with the warranty set forth herein, then Buyer will also bear LGS’s cost of shipping the Product back to Buyer.
B. Buyer is aware that, as part of it Location Services program, LGS exerts commercially reasonable efforts to maintain a registry of the installation locations of its Products, and to make such information available upon request from governmental and volunteer police, fire, search and rescue, and the like, authorities, agencies and organizations. If Buyer elects to participate in LGS’s Location Services program, Buyer agrees to provide updates and corrected information to LGS promptly upon any change of location of Buyer’s Product unit or units.
C. BUYER IS INFORMED THAT, WHILE THE PRODUCTS AND LGS’S LOCATION SERVICE ARE INTENDED TO INCREASE THE CHANCES OF SURVIVAL OF ONE OR MORE PERSON(S) (UP TO THE MAXIMUM NUMBER OF PERSONS FOR WHICH THE PRODUCT IS RATED) PROPERLY SITUATED IN THE PRODUCT DURING A STRUCTURAL COLLAPSE, THE PRODUCT AND SUCH SERVICES MAY NOT PREVENT ALL INJURIES AND WILL NOT WITHSTAND OR BE PROTECTIVE IN ALL SUCH COLLAPSES. BUYER AND ITS CUSTOMERS UNDERSTAND AND ASSUME THE RISKS OF USING THE PRODUCT AND SUCH SERVICES, INCLUDING AMONG OTHERS, THE RISKS OF OBJECTS PIERCING THE PRODUCT FROM BELOW, CONCUSSIVE IMPACTS AND OTHER TRAUMAS (WHETHER FROM PRODUCT SURFACES, OBJECTS FLYING OR INTRUDING INTO THE PRODUCT, THE FORCE OF FALLS, OR OTHERWISE), SMOKE AND DUST INHALATION, NOXIOUS FUMES, FIRE, EXPLOSION, EXTREME TEMPERATURES, PROLONGED EXPOSURE, FLOODING OR WATER LEAKAGE, THE END USER’S REMOTENESS FROM THE PRODUCT DURING AN EVENT, USE OF THE PRODUCT BY UNAUTHORIZED PERSONS, SHOCK, EMOTIONAL DISTRESS, AND LACK OF TIMELY RESCUE, WHETHER OR NOT THE END USER HAS ACCURATELY REGISTERED THE LOCATION OF THE PRODUCT WITH LGS. Buyer agrees not to remove or obscure any warnings or other labels on the Products unless and until they have been communicated to the intended users of the Product.
D. LGS will have no obligation to the extent that any failure of a Product to comply with the limited warranty set forth in subsection (A) above results from or is otherwise attributable to: (i) negligence or misuse or abuse of the Product; (ii) use of the Product other than in accordance with LGS’s published specifications or manuals; (iii) re-use of a Product following a partial or complete structural collapse of the prior installation site of such Product; (iv) modifications, alterations or repairs to the Product made by a party other than LGS or a party authorized by LGS to do so; or (v) use of the Product in combination with any third-party devices or products that have not been provided or recommended by LGS; (vi) improper storage;(vii) Products that are floor samples or designated “AS IS” at the time of purchase; (ix) differences between floor samples, printed illustrations, photos, video or internet displays and Products; (x) differences in natural materials; (xi) certain natural solid woods and highly figured veneers that can have tension that pulls the fibers of the wood which can result in hairline cracks over time. (This condition is considered an enhancement to the product); (xii) naturally variable raw materials with differences in grain character and color that are naturally occurring variations and are not within the control of the manufacturer; (xiii) natural color changes, variations, or movements in lumber or veneer products, and exposure to extreme temperature changes and direct sunlight, that may cause color changes and/or surface damage; (xiv) damage to screw inserts or fasteners caused by over tightening or attempting to lift or move a unit by the wood panels; (xv) dimpling or “oil canning” as a result of the production process; (xvi) overall steel dimensions which vary less than 7/32 of an inch.
E. ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE LIMITED TO THE DURATION OF THE APPLICABLE EXPRESS WARRANTY. ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INDEMNITIES, AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OF NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, ARE DISCLAIMED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN OBTAINED FROM LGS OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS. Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you. This warranty gives you specific legal rights, and you may also have other rights which vary by jurisdiction.
9. LIMITATIONS ON LIABILITY
IN NO EVENT WILL LGS BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, USE, PROFITS, DATA, OR GOODWILL) OR COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OR THE PURCHASE, SALE, USE, OPERATION OR PERFORMANCE OF THE PRODUCTS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT LGS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. BUYER SHALL INDEMNIFY AND HOLD LIFEGUARD STRUCTURES LLC HARMLESS FOR ANY CLAIM, LOSS OR EXPENSE BROUGHT BY BUYER, ITS EMPLOYEES, AGENTS OR CUSTOMERS. LGS AND BUYER HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL LGS’S LIABILITY TO BUYER ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE ACTUAL AMOUNT PAID TO LGS BY BUYER FOR THE PRODUCT UNIT(S) THAT GAVE RISE TO THE CLAIM. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
10. GENERAL PROVISIONS
A. Buyer has no right to assign or transfer this Agreement, including by merger, operation of law, or otherwise, without LGS’s prior written consent. Except as above limited, this Agreement is binding upon and will inure to the benefit of each of the parties and its successors and assigns.
B. This Agreement will be governed and construed in accordance with the laws of the State of Washington, excluding its conflict of laws principles. The parties disclaim application of the United Nations Convention on Contracts for the International Sale of Goods. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Kitsap County, Washington, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
C. LGS will not be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or acts of God.
D. The failure by LGS to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
E. This Agreement constitutes the complete and exclusive agreement between LGS and Buyer regarding its subject matter and supersedes all prior or contemporaneous quotations, agreements, communications or understandings, whether written or oral, relating to such subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the party or parties sought to be bound thereby.
F. Except as otherwise stated on the signature page, all notices required or permitted to be given under this Agreement will be in writing and will be deemed given: (i) upon actual delivery, if made by personal service; (ii) three (3) days after mailing, if made by U.S. certified or registered mail; and (iii) one (1) business day after delivery to the courier or overnight delivery service, if made by courier or overnight delivery service. All notices will be addressed to the parties’ respective addresses set forth on the signature page below, or to such other address as the party who is to receive the notice so designates by written notice to the other.