All quotes by, orders to, and sales by Fulcrum Building Group, LLC, d/b/a South Bay Lumber (“Seller”) are subject to and governed by the following terms and conditions (“Sales Terms”). The customer/buyer (“Buyer”) agrees to be bound by these Sales Terms by ordering and/or purchasing, any goods, products, materials or services (hereafter collectively “Goods”) from Seller.
1. Force Majeure. Delay in delivery or non-delivery in whole or in part by Seller shall not be a breach of any sale if performance is made impracticable by the occurrence of any events beyond Seller’s control including, but not limited to, any one or more of the following: (1) fires, floods, inclement weather, or other casualties or acts of God; (2) wars, riots, terrorism, civil commotion, embargoes, governmental regulations or martial law; (3) Seller’s inability to obtain necessary materials (finished or otherwise) from its usual sources of supply; (4) shortage of cars or trucks or delays in transit; (5) existing or future strikes or other labor troubles affecting production or shipment, whether involving employees of Seller or employees of others, and regardless of responsibility or fault on the part of the employer; and/or (6) any other contingencies of manufacture, supply, or shipment, whether or not of a class or kind mentioned herein.
2. EXCLUSION OF WARRANTIES. SELLER IS NOT A MANUFACTURER. ANY AND ALL MANUFACTURER’S WARRANTIES MAY BE ENFORCEABLE DIRECTLY AGAINST THE MANUFACTURER BY THEIR OWN TERMS. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND BY SELLER WITH RESPECT TO ANY GOODS OR PRODUCTS SOLD BY SELLER INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY AND/OR ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
3. LIMITATION OF REMEDIES & DAMAGES. BUYER’S REMEDIES IN CONNECTION WITH ANY NONCONFORMING AND/OR DEFECTIVE GOODS OR PRODUCTS PROVIDED BY SELLER SHALL BE LIMITED TO RETURN OF THE GOODS OR PRODUCTS AND REPAYMENT OF THE PURCHASE PRICE, OR REPLACEMENT OF THE NONCONFORMING GOODS OR PRODUCTS BY SELLER, AT SELLER’S OPTION. SELLER SHALL NOT UNDER ANY CIRCUMSTANCES BE RESPONSIBLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LABOR, PAINTING AND/OR OTHER COSTS INCURRED TO REMOVE AND/OR REPLACE ANY GOODS OR PRODUCTS FROM A WORK OR STRUCTURE.
4. Notice of Rejection. Buyer shall inspect all Goods furnished by Seller immediately and prior to use or incorporating them into any work or structure. Notice of rejection of any Goods, and/or any alleged nonconformity or defect (collectively “nonconformity”) in any Goods, must be made in writing and delivered to Seller within 24 hours of purchase or, if the Goods are delivered to Buyer’s job site, then within 24 hours of such delivery. Such notice must state with particularity the basis of the rejection and/or any alleged nonconformity of the Goods and describe with particularity the portion of the Goods being rejected. Unless Buyer provides such notice within this time, Buyer will be deemed to have accepted all Goods in all respects, waived any claims of nonconformity with respect to the Goods, and agreed that the Goods are without any nonconformity. Seller shall have the right to make an on-site inspection of any Goods rejected. Buyer shall take all appropriate actions to protect and preserve any rejected Goods in the same condition that they were in at the time of delivery.
5. Delivery & Acceptance; Title to Goods. Risk of loss passes to Buyer upon delivery of the Goods to the destination designated by Buyer. If delivery is by common carrier, delivery by Seller to the carrier at the point of origin shall constitute delivery to Buyer and thereafter the shipment shall be at Buyer’s risk, and any claims of Buyer for loss or damage must be made against the carrier. Until fully paid, Seller expressly retains title to all Goods to secure payment and a security interest in the same. Title to Goods passes to the Buyer upon receipt of full payment of the total purchase price thereof. Upon Buyer’s default, Seller may retake possession of the Goods without prior legal process and Seller may pursue any other remedies that may be available to Seller. Any claims for shortages shall be noted on Seller’s delivery receipt by Buyer at the time of delivery; otherwise, Seller shall not be responsible for the same. If, upon delivery at job site, there is not present at the job site an employee or agent of Buyer authorized to accept delivery and sign a delivery receipt evidencing delivery of the Goods, then Seller shall have the right to deposit the goods at the job site without obtaining a signed receipt therefore, and Buyer agrees to liability for payment for all such Goods as if a delivery receipt were signed by an authorized agent of Buyer.
6. Returns; Special Orders. Subject to paragraph 3 (Limitation of Remedies & Damages) above, Seller shall not accept return of any Goods for refund or credit for any reason unless: (a) Buyer produces to Seller the original invoice evidencing Buyer’s purchase of the subject Goods from Seller; and (b) Seller, in its sole and absolute discretion, elects to do so. Buyer will pay a re-stocking fee of 20% of the amount of any refund or credit allowed by Seller. However, subject to paragraph 3 (Limitation of Remedies & Damages) above, there shall be no returns, refunds or credits allowed on any special order items under any circumstances. Special orders cannot be cancelled and are non-refundable.
7. Building Codes; Specifications. COMPLIANCE WITH APPLICABLE LAWS, SITE REQUIREMENTS, BUILDING CODES AND PROJECT SPECIFICATIONS, AND THE DETERMINATION OF THE SUITABILITY OF ALL GOODS AND PRODUCTS TO BE USED IN ANY PROJECT (AS WELL AS THE DESIGN AND INSTALLATION TECHNIQUES USED), ARE THE SOLE RESPONSIBILITY OF THE BUYER, OWNER, ARCHITECT, CONTRACTOR, CODE ENFORCEMENT OFFICIAL, OR OTHER CONSTRUCTION PROFESSIONAL. SELLER SHALL HAVE NO LIABILITY FOR THE SAME.
8. Quotes/Estimates. Any material quantities estimated or quoted by Seller are designed solely to provide Buyer with a rough estimate of the amount of material that may be used in a given project. These are based upon calculations, plans and/or other information provided to Seller and they assume, among other things, normal and typical construction techniques in the area. The actual amount of material used in a project may vary from the quote/estimate, at times significantly, due to a number of factors including, but not limited to, any subsequent changes to the plans (such as where Seller is provided preliminary plans to estimate materials, rather than final plans), project changes, and construction techniques used. Consequently, Seller cannot and does not make any representation or warranty regarding the actual amount of material that is needed or will be used in any given project, and no quote or estimate by Seller shall be construed to contain any such representation or warranty. Quoted prices include a cash payment discount, and are subject to change. Any errors in a quote are subject to correction.
9. One Year Limited Warranty on Custom Production Items & Services. Seller warrants to the original single-family homeowner Buyer that: (a) any installation and/or repair services are performed in a commercially reasonable manner; and (b) any custom item produced by Seller (for example, custom wood shutters, custom doors or barn doors, etc.) (hereafter referred to as “Custom Item”) are of good quality, free from defects in workmanship at the time of delivery to Buyer, subject to the following terms. Seller’s warranty and liability for the same are EXPRESSLY LIMITED as follows. Seller will refund to the original single-family homeowner the actual price paid, if any, for any such services or Custom Item determined by Seller to be deficient, or repair the same, at Seller’s option, provided on the express condition that Seller receives written notice of the specific services or Custom Item claimed to be deficient within thirty (30) days of discovery of any such possible defect or deficiency and no later than one (1) year of the date that Seller originally performed the services, or sold the Custom Item, as shown in Seller’s records. Seller is not responsible for any deficiencies or defects that may arise outside of this one year time period, or which are not properly reported to Seller in writing within the one year period (even if the claimed deficiency was not discovered until after the expiration of such time period). In any event, Seller shall be allowed to conduct an on-site inspection and may charge an inspection fee of $100 per inspection, but if Seller’s inspector finds a deficiency in Seller’s services or Custom Item, the inspection fee will be waived. This limited warranty does NOT include any cosmetic or maintenance items including, but not limited to, painting, staining, caulking and/or sealants, which are the responsibility of the Buyer or Buyer’s contractor. This limited warranty also specifically does NOT cover: (a) any Custom Item failure or damage as a result of improper installation, improper care, or improper maintenance; (b) any Custom Item failure or damage as a result of failure to properly seal and finish all 6 sides of the wood product, which must be done within 72 hours of delivery and before the Custom Item is subjected to moisture; (c) with respect to wood doors which are installed in an exterior application, any failure or damage as a result of a lack of sufficient roof overhang protection (sufficient roof overhang may be greater depending on the specific location and application, but typically a sufficient roof overhang means that the door must have over it a porch or overhang extending outwards from the entry for a minimum distance of one-half the height measured from the bottom of the door to the underpart of the overhang that is furthest away from the entry); (d) with respect to any Custom Items, any expansion, contraction, warping, or swelling which is normal to wood as a naturally grown product when subjected to changes in temperature and/or humidity; (e) warp that does not exceed 1/4″ in the plane of any Custom Item that is at least 1-3/4″ thick (minimum) and which does not exceed 3’0″ wide or 6’8″ tall; (f) warp that does not exceed 3/8″ in the plane of any Custom Item that is at least 1-3/4″ thick (minimum) and which does not exceed 3’0″ wide or 8’0″ tall (there is no warranty or guaranty for warp on Custom Item less than 1-3/4″ thick, or larger than 3’0″ wide or 8’0″ tall); (g) Custom Items are not tested or rated for performance and, as a result, there is no warranty in regard to design pressure or other performance ratings on Custom Items; and (h) with respect to physical appearance of any Custom Items, variations in the finish, color, texture or appearance can vary from door to door (or shutter to shutter, etc.), these are considered as natural variations in timber and are not a defect covered by warranty. Although we try to provide a fair representation of Custom Items in our showroom and advertising media, such natural variations in wood are natural and unavoidable. EXCEPT AS SPECIFICALLY STATED ABOVE IN THIS PARAGRAPH 9, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND BY SELLER WITH RESPECT TO CUSTOM ITEMS PRODUCED BY SELLER, OR ANY INSTALLATION OR REPAIR SERVICES PROVIDED BY SELLER (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE), AND SELLER SHALL NOT BE RESPONSIBLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND UNDER ANY CIRCUMSTANCES.
10. Jobsite Delivery. In the event that Seller delivers any Goods to a jobsite, Seller will attempt to follow reasonable directions provided by Buyer or Buyer’s representative as to the location for placement of such Goods. It is the duty of the Buyer, not Seller, to specify and mark the location of any and all underground facilities (including, but not limited to, irrigation lines, septic tanks, or other) before Seller’s equipment enters the subject property, so that Seller’s operator may attempt to avoid the same. Nevertheless, Seller shall not be liable for any damage to any such underground facilities under any circumstances. In the event that Seller’s equipment comes into contact with or damages any grass, shrubbery, landscaping, driveway, sidewalk or other surface as Seller’s operator is attempting to follow directions for placement of Goods from Buyer or Buyer’s representative, Seller shall not be liable for any damage to the same under any circumstances.
11. Loading. In the event that Buyer requests that Seller load any Goods onto Buyer’s vehicle, trailer or other equipment, Buyer understands that many of the Goods sold by Seller are heavy (including, but not limited to, crossties, lumber, plywood, doors, windows, concrete blocks, cement products, etc.) and that such Goods may shift or move during transit. It shall be the duty of the Buyer, and not the Seller, to review Buyer’s owner’s manual for weight capacity and to ensure prior to loading that any Goods to be loaded are not too heavy and will not cause damage to Buyer’s vehicle, trailer or other equipment. Seller shall not be liable for any property damage (including, but not limited to, any damage to the Goods themselves) or personal injury caused in whole or in part by the weight of the Goods loaded or by movement of Goods during transit.
12. Cash Discount. All quoted prices and invoice prices include a cash payment discount. In the event that Buyer elects to pay with a credit card, the cash discount will be reversed and the applicable amount paid to Seller.
13. E-mail Service. At Buyer’s request, Seller will, as a service to Buyer, attempt to send invoices and statements to Buyer by e-mail. However, Buyer understands that Seller does not control and cannot guarantee delivery by e-mail, and thus Buyer agrees to pay all invoices and statements within Seller’s payment terms even if any such e-mails are not received by Buyer.
14. Dimensions. Dimensions and/or sizes on lumber and other materials are those generally used in the industry, but actual sizes may vary.
15. Finance Charges; Collection Costs. A finance charge of 1.5% per month will be applied to any unpaid balance owed by Buyer to Seller (minimum finance charge of 50¢ per month on any balance), and Buyer shall pay the same to Seller. Buyer shall pay all costs and expenses incurred by Seller, with or without litigation, in collecting any amount owed by Buyer including, without limitation, attorney’s fees and expenses, and expert fees and expenses.
16. Entire Contract. These Sales Terms supersede any and all prior and/or contemporaneous verbal and written agreements and representations between Buyer and Seller, and constitute the ENTIRE CONTRACT between Seller and Buyer with respect to the sale and purchase of all Goods shown on Seller’s invoice (except that if Buyer has entered into a credit agreement, installed sales contract, or special order with Seller, the credit agreement, installed sales contract and/or special order also forms part of the contract). These Sales Terms cannot be modified, altered, or supplemented by any purchase order or other writing from Buyer specifying different or other terms or conditions, or in any other manner, unless the same is done in a formal written addendum to these Sales Terms signed by Seller’s President. Otherwise, any attempt by Buyer to add to or vary these Sales Terms shall be void and of no effect.
17. Amendment. Seller may amend these Sales Terms at any time, and any changes or amendments will be reflected on this page for public view and shall be effective upon posting.