By using this website and/or agreeing to purchase, either verbally or in writing, or paying for or accepting delivery of, or using or installing stone, and/or other materials (collectively, "Materials") produced or supplied by Staxstone and it's affiliated entities or assigns (collectively, "Seller"), visitor and/or buyer (hereinafter, "Buyer") enters into and agrees to be bound by this agreement by and between the Supplier and Buyer (hereinafter, "the Agreement"), according to the following Terms and Conditions:
1. APPLICABLE LAW. This agreement shall be governed by the laws of Canada and the applicable province.
2. ASSIGNMENT. This agreement may NOT be assigned by Buyer without the prior written consent of Seller, which consent shall be in the sole and absolute discretion of the Seller. By purchasing materials, customer warrants that they have adequately tested the materials and received the appropriate approvals from a qualified engineer before using the material in an application. Customer assumes any and all liability, be it civil or statutory, arising out of the sale, transport, unloading, installation or use of the material at any moment past, present, or future throughout the Universe.
3. BACK CHARGES. Buyer agrees that Buyer will NOT have the right of offset against the Agreement price or the right to back charge the Agreement unless an officer of the Seller has agreed to such charges in writing.
4. BUYER'S OBLIGATION TO INDEMNIFY SELLER IN THE EVENT SELLER LIABLE TO OTHERS. This Agreement is NOT for the benefit of any third party. In the event a third party makes a claim against the Seller, Buyer shall indemnify the Seller and hold the Seller harmless for any and all claims that exceed Seller's obligation under this Agreement.
5. BUYER'S OBLIGATION TO INSPECT UPON DELIVERY. The material will be sold in "AS IS" condition. Buyer will inspect material before the material is unloaded from the freight hauler. After receipt of materials, all sales are final.
6. COLLECTION PROVISIONS. It is agreed that the applicant/Buyer will pay Seller's reasonable attorney's fees, costs and expenses in any action for the collection of amounts due hereunder. The buyer waives trial by jury in any action brought in connection with this Agreement.
7. DISCLAIMER OF IMPLIED WARRANTIES. THERE IS NO IMPLIED WARRANTY OF MERCHANTABILITY AND THERE IS NO IMPLIED WARRANTY OF FITNESS FOR BUYER'S PARTICULAR PURPOSE; THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR BUYER'S PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. In the event a jurisdiction does not allow the exclusion of certain warranties, Seller's warranties in such jurisdiction shall be limited to the extent permitted by law.
8. OXIDATION OR STAINING ARISING FROM NATURAL STONE. The materials are made from Natural Stone and may contain deposits of minerals such as iron that may react to moisture. Stone bleed or rusting is a common example of this. A sealer is required but will not prevent the chemical reaction from happening. Seller is NOT responsible for staining or oxidation arising from naturally occurring mineral deposits found within the natural stone.
9. FIELD MEASUREMENTS/DRAWINGS. Seller is NOT responsible for making, verifying, or ensuring the accuracy of field measurements, architectural drawings, specs, or engineering approval for the materials sold hereunder. Buyer is solely responsible for acquiring appropriate construction approvals from a qualified engineer as per Provincial and /or Federal law, for testing and assessing the suitability of materials for a given application, and for installing the materials in a safe manner consistent with Provincial and /or Federal law.
10. BUYER'S OBLIGATION TO ASSESS MATERIALS, BUILDING CODE COMPLIANCE, AND ASSUMPTION OF LIABILITY. Buyer hereby fully assumes any and all liability of whatever kind, arising out of the sale, resale, transport, unloading, installation or use of the Materials purchased hereunder. In addition, Buyer assumes all responsibility and liability for assessing the suitability of any Materials purchased hereunder for a particular purpose. If Buyer is to install any Materials sold hereunder, Buyer is bound by the Agreement to have the specific item to be used in a given application tested both chemically and mechanically, and to have said specific item and the test results done thereon approved for the specific application for which it will be used by a building engineer who is licensed in the jurisdiction wherein the installation will take place; Buyer is further bound by the Agreement to have the installation plans for any installations to be installed by Buyer approved by a building engineer who is licensed in the jurisdiction wherein the installation will take place prior to installation, to acquire appropriate construction licenses and approvals from any and all entities which have jurisdiction over the construction, to insure the installation is International Building Code ("IBC") compliant prior to installation, and, if Buyer is not a licensed and bonded construction contractor in the jurisdiction wherein the installation will take place, to hire a construction contractor who is licensed and bonded in the jurisdiction wherein the installation will take place to install the materials in a safe manner consistent with all applicable regulations, statues, or codes, including but not limited to the IBC.
11. FORUM SELECTION. Both parties agree to bring suit only in the Ontario Provincial Courts.
12. BOTH PARTIES CONSENT TO THE JURISDICTION OF THE ONTARIO PROVINCIAL COURTS FOR ADJUDICATION OF DISPUTES ARISING OUT OF THIS AGREEMENT. Violation of this covenant will bar recovery by BUYER in any other court.
13. INVOICES & PAYMENT. Invoices for materials sold hereunder will be provided to Buyer as the material is fabricated. Payment is due upon receipt of invoice unless other terms are specifically agreed to in writing. Payment is due upon receipt of invoice date whether or NOT buyer has been paid by the owner or other Contractor. Failure of Buyer to pay Seller in accordance with the payment terms of this Agreement is a breach and relieves Seller of the obligation to ship material to Buyer, after such breach by Buyer; Seller may require full payment in advance for further delivery of materials to Buyer. If buyer, for any reason, does not pay the balance to seller upon receipt of material or 48 hours thereafter, buyer agrees to compensate seller for 5% of total value of shipment for every initiated calendar day thereafter until full payment is complete unless otherwise agreed to in writing.
14. No Alterations. Buyer should double check their purchase order prior to placement; Because certain materials may not be re-sellable by Seller in various markets or at certain price points, and because certain opportunities for profit may be lost by Seller by tying up the production facilities for a given purchase order, or for various other reasons, once a given purchase order has been placed, or deposit accepted by Seller, or production started on a given project or all of the above, NO ALTERATIONS, including but not limited to cancellation, are permitted to the purchase order. If Buyer wishes to alter a given purchase order after the fact, such an alteration will be deemed to be a new and separate purchase order, and Seller may, at its sole discretion, require Buyer to pay for a portion, up to and including 100%, of the original purchase order, in addition to paying in full for the new materials placed under the new/altered purchase order, prior to releasing any materials.
14. LIMITATION OF LIABILITY. Under no circumstances shall Seller, any of its subsidiaries, affiliates, franchisees, agents, employees, licensees, subcontractors, or any third party providers be liable to you for any direct, indirect, incidental, special, circumstantial or exemplary damages, including, but not limited to, damages for loss of profits, goodwill, or other intangible losses. The foregoing limitation applies regardless of the nature or theory of law upon which such any alleged liability is based. In the event a jurisdiction does not allow the exclusion or limitation of certain damages, Seller's liability in such jurisdiction shall be limited to the extent permitted by law.
15. PUBLIC PROJECTS. Upon request, Buyer will supply Seller with a copy of Buyer's Labor and Material Payment Bond prior to initial shipment of material on public projects.
16. SEVERABILITY. If any provision of this agreement is determined to be unenforceable or invalid, the unenforceable or invalid part shall be deemed severed from this agreement and the remaining portions of this agreement shall be carried out in the same force as if the severed portions had NOT been part of this agreement.
17. DELIVERY & LEAD TIME. Delivery times are an estimation only and subject to the responsibilities and capabilities of the shipping company. Once the shipment leaves Seller's warehouse, the Seller is not responsible for any costs incurred as a result of a delay in delivery.
18. FORCE MAJEURE. Seller shall not be liable for damages resulting from delays in shipment or inability to ship due to normal production and shipment delays or those resulting from acts of God, fires, floods, tsunamis, wars, sabotage, accidents, labor disputes or shortages, plant shutdown or equipment failure, voluntary or involuntary compliances with any law, order, rule or regulation of governmental agency or authority; or inability to obtain material (including power and fuel), equipment or transportation, or arising from any other contingency, circumstances or event beyond the control of the Seller.
19. SELLER'S QUALITY OBLIGATIONS. Stone is a natural product and as such has a wide degree of variance in color and texture from batch to batch, or even within the same batch. Every effort has been made to accurately represent the products that Seller and/or its vendors and assigns carry, however a wide degree of variance from pictures and control sample provided to buyer is inevitable and should be expected. Material ordered in two separate purchase orders SHOULD BE EXPECTED NOT TO MATCH, particularly if the orders are months apart. Seller warrants that the Materials provided will at such time as the Materials are released into Buyer's care, be at least 95% intact (allowing for 5% breakage), be it at the port or Seller's warehouses if the Materials are released to Buyer's freight hauler at port or from Seller's warehouses, or at Buyers' place of business or residence if Seller ships the material over land (DDP), and that at such time as the Materials are released into Buyer's care, they will be of Seller's standard quality, i.e. reasonably consistent in color with control sample and pictures provided by Seller to Buyer.
20. ADDITIONAL TERMS. Additional Terms may apply to a given purchase order at Seller's sole discretion on a case by case basis. These will be delineated as "Additional Terms" in the written proposal/invoice associated with the purchase order and will incorporate and where applicable amend these Terms and Conditions, and be subject to review, but not modification, by Buyer, prior any purchase orders being affected by the policy change being executed; such Additional Terms shall be binding on Buyer as part of this Agreement upon Buyer's execution of the given purchase order in question.
21. BREACH BY BUYER. In the event Buyer does not comply with any of the Terms and Conditions, Seller may at its discretion cancel sale, retain possession of materials sold hereunder, and if applicable pursuant to clauses 2 and 16 hereto, apply an applicable portion of monies received of Buyer to cover any applicable expenses, and return the remaining portion thereof, if any, to Buyer.
22. SUPERSEDING CLAUSE. This document contains the terms and conditions upon which Seller offers this sale for materials and/or services on the projects referred to herein. Buyer hereby acknowledges that the terms and conditions contained in this document supersede all conflicting or otherwise inconsistent terms and conditions contained elsewhere.