This is an Agreement between You (the “Buyer”) and Universal Hardwood Flooring & Moulding, Inc. (“Universal”); hereinafter also referred to as “party/parties”. In consideration of the premises and mutual promises contained herein, the parties hereto agree as follows:
1. Flooring Installers. Universal Hardwood may upon the Buyer’s request provide the Buyer with contact information for flooring installers. Referrals are only provided out of courtesy, and Universal does not warrant or guarantee the work of any flooring installers to whom Universal may refer the Buyer. Universal also does not warrant or guarantee that a background check has been performed on said flooring installers. The Buyer is solely responsible for ensuring that any flooring installer, hired by the Buyer to install the flooring purchased from Universal, is in compliance with any and all applicable licensing requirements of the State of California and that flooring installer reads and follows manufacture’s installation guidelines. Installation of flooring constitutes acceptance of flooring. Buyer releases and holds Universal harmless for any and all damages, loss and costs, including attorney fees, allegedly resulting or arising from Buyer’s hiring of any flooring installer. This clause constitutes an absolute bar to Buyer from bringing any action against Universal arising out of the work performed by any flooring installer.
2. Force Majeure. Universal shall not be liable for failures or delays in delivery caused by events and occurrences beyond the control of Universal; including, without limitation, strikes, lockouts, accidents, fuel and other material shortages, power failures, limitations in shipping space, delays by carriers, manufacturers, suppliers or any government acts.
3. Cancellation/Liquidated Damages. This Agreement may be canceled by Buyer after notifying Universal in writing by registered mail or facsimile, latest, by midnight of the third day following signing of this Agreement. If Buyer cancels this Agreement, the Buyer shall, at all times, be responsible for any accrued costs, in addition to liquidated damages in a sum equal to fifteen percent of the invoice value.
4. Returns. After the Buyer has accepted the merchandise, no return will be accepted without the prior authorization of Universal in writing. Buyer shall be deemed to have accepted the merchandise unless any claim in respect thereof is filed by the Buyer in writing by notifying Universal Hardwood at 10889 Venice Boulevard, Los Angeles, California 90034. A copy of the delivery receipt must accompany all claims. Buyer also will be deemed to have accepted any merchandise that the Buyer alters. Any applicable refund for the returned merchandise will be issued for merchandise only. In regards to returns, Buyer is responsible for freight in both directions unless the return was made necessary by an error made by Universal. Refunds or returns will not be permitted for non-stock merchandise or for special orders. A twenty-five percent restocking fee, with a $20.00 minimum per return, will be charged to the Buyer for all returned merchandise unless the return was made necessary as a result of an error by
5. Delivery, Inspection, Acceptance of Delivery. Buyer agrees to be present at the arranged time of delivery. If Buyer or Buyer’s representative is not present there will be a Driver Wait Time fee charged to the Buyer in the amount of $40.00 per half hour . Buyer will inspect merchandise promptly on delivery. No claim for error or nonconformity of delivery, damage or shortage may be asserted later than seven days after delivery.
6. Shipments. Buyer agrees that each shipment will be separately invoiced and paid for by the Buyer without regard to any other shipment(s) and/or claim(s) in respect thereof. Payment in full for each order is due upon shipment delivery to our warehouse.
7. Discount Claw-back. Buyer accepts that discount(s) offered by Universal, contingent upon the payment of invoice within the time frame specified by Universal, shall be considered withdrawn automatically upon the Buyer failing to make payment within that time frame.
8. Rush Orders. Universal at its discretion may accept rush orders. A rush order for purposes of this Agreement is any order made by the Buyer in which the merchandise is to be shipped within 48 hours or lesser from the time of order. Buyer agrees to pay over and above the total invoice value, a fee equal to 10% of the total invoice value, for any rush orders authorized by Universal. In the event that a single box rush order is needed due to miscalculation of materials needed, a rush order fee will apply.
9. Disclaimer. Buyer expressly recognizes, understands and acknowledges that wood is a natural product, and though all samples are produced to be the closest representation of the actual finished product, samples are not a perfect representative of the entire floor. Characteristics of the floor may vary with size. The finished flooring may contain a larger variation of color, grain, grading, knots and distress that may not be evident in the small sample the Buyer is viewing. Buyer further understands that samples that are aged or have been exposed to direct sunlight may appear different (darker or yellowed) from the flooring it is meant to represent, and that due to the varying hardness of wood flooring species, flooring may dent and scratch if the Buyer does not provide proper care and maintenance
during installation and thereafter. Buyer acknowledges that published rules of the National Wood Flooring Association (“NWFA”) and NOFMA will apply in any question regarding wood grading, and the NWFA grade appearance rules supersede all other standards of acceptability and/or rejection.
10. Warranties. Site Disclaimer - Universal does not warranty or accept responsibility for the finish, installation, or use of merchandise at the Buyer’s job site. Responsibility is on the installer to use proper installation methods and to ensure that the job site conditions and the surrounding environment are acceptable.
11. Entire Agreement. This Agreement supersedes any purchase order or other writing submitted to Universal by the Buyer, and constitutes the entire agreement between the Buyer and Universal. No terms, conditions, promises, representations, or warranties of any kind herefore or hereafter made by Universal or any employees, sales representatives, sales agents, or others representing Universal, except those expressly set forth herein, shall be binding on Universal. No course of prior dealings between the parties shall be relevant to supplement or explain any terms in this Agreement.
12. Limitation of Damages. In no event shall the Buyer be entitled to recover any incidental or consequential damages, including, but not limited to, personal or commercial loss allegedly resulting from the merchandise or installation of the merchandise purchased under this Agreement. Under no circumstances shall Universal be liable for any damages in excess of the purchase price of the merchandise.
13. Collection Expenses/Attorney’s Fee. Buyer shall pay all costs, expenses, and disbursements, including reasonable attorney’s fee incurred by Universal in taking or reselling the merchandise/services or in collecting any sum which may be due and owing to Universal from the Buyer hereunder or in the enforcement of any other term or provision required to be performed by the Buyer hereunder whether or not suit be instituted in respect thereto. Buyer understands and accepts that the Buyer shall be liable to pay all administrative fees and incidental expenses associated with processing of preliminary liens, if any, filed by Universal for effecting recovery of unpaid dues from the Buyer.
14. Jurisdiction/Venue. Depending upon the amount in dispute, parties, hereto consent to the jurisdiction and venue of the Construction Industry Mediation Procedures of the American Arbitration Association and the laws of the State of California. Parties hereto also agree that payments to Universal are to be made in the city of Los Angeles.
15. Notice of Dispute. All complaints and formal disputes must be presented to the opposing party in the form of a written “Notice of Dispute”, along with supporting documentation setting forth in clear detail the nature of the complaint or claim. All disputes by Buyer must be sent to Universal Hardwood Flooring, attention “General Counsel”, 10889 Venice Blvd., Los Angeles, CA 90034. The Notice of Dispute must state in clear terms the nature and basis of the dispute and the specific relief sought. If an agreement to resolve the dispute cannot be reached within thirty (30) days of receipt of the dispute arising, arbitration proceedings shall commence as set forth in Item 15 herein. Any settlement agreements or offers discussed during the thirty day attempt to resolve the issue will not be disclosed to a third party until the arbitrator determines a settlement amount, if any, to be paid to the disputing party.
16. Alternative Dispute Resolution/Neutral Fact-Finding Panel/Step Mediation-Arbitration. Any controversy or claim arising out of or relating to this Agreement or breach hereof which cannot be settled between the parties shall be settled by the following process: (a) Neutral Fact-Finding – the parties agree to employ a Neutral Fact-Finding Panel, duly certified by the National Wood Flooring Association and/or the Los Angeles County Bar Association Dispute Resolution Service. Within fourteen days of appointing the Neutral Fact-Finding Panel, the parties shall hold an initial Neutral Fact-Finding Conference for the purpose of defining the Fact-Finding Panel’s role, to determine issues in controversy to be investigated, and to decide how the Panel’s decision will be applied. For claims or disputes valuing under $20,000.00, one Neutral Fact-Finder shall be appointed, and for claims or disputes that involve pecuniary value exceeding $20,000.00, three Neutral Fact-Finders shall be appointed. If either party fails to respond to a written request for appointment of Neutral Fact-Finding Panel within thirty days after the service of such request on that party, or fails to participate in any scheduled Neutral Fact-Finding Conference, that party shall be deemed to have waived its right to dispute any decision made by such Neutral Fact-Finding Panel. The party found to be in default will pay for the Neutral Fact-Finding Panel’s investigation. (b) Step Mediation/Arbitration – Should any issues remain in dispute between the parties upon conclusion of the Neutral Fact-Finding Process, such issues shall be settled
by Mediation under the Construction Industry Mediation Procedures of the American Arbitration Association and/or the National Wood Flooring Association. If a party fails to respond to a written request for Mediation within thirty days after service of such request or fails to participate in any scheduled Mediation Conference, that party shall be deemed to have waived its right to mediate the issues in dispute. If Mediation does not result in settlement of the issue within 30 days of the initial Mediation Conference, or if a party has waived its right to dispute the Neutral Fact-Finding Panel’s decision or to mediate any issues in dispute, then any unresolved controversy or claim arising out of or relating to this Agreement or breach thereof shall be settled by Arbitration administered by the American Arbitration Association
in accordance with its Construction Industry Arbitration Rules; and in that event, the judgment on the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. Each party will share equally the costs of the above Alternative Dispute Resolution Process.
17. Waiver of Right to Judge or Jury Trial. By entering into this agreement, the parties hereto waive their rights to trial by judge and jury.
18. Waiver & Remedies. Any waiver of breach, violation or default by either Universal or Buyer under any provision of this Agreement will not operate as a waiver of such provision for any subsequent breach or violation or default. The remedies reserved in this Agreement shall be cumulative and in addition to any other remedies provided in law or equity.
19. Severability. If any provision of this Agreement should be held invalid or unenforceable for any reason whatsoever, or to violate any laws of the United States or the State of California, such provision shall be deemed to have been eliminated or limited to the minimum extent necessary so that the remainder of this Agreement will continue in full force and effect and be enforceable.
20. Headings. The headings/captions appearing at the beginning of the paragraphs of this Agreement are for convenience only and shall not affect the interpretation of the Agreement.