Experienced Brick & Stone, LLC is the “Seller” of certain “Goods,” namely different types of historical and used brick, street pavers, stone cobbles, curbing, sidewalk, building stones, stone and other materials. As used herein, parties purchasing the Goods are the “Buyer.” These “Terms and Conditions” and Seller’s “Invoice,” together with Buyer’s a written purchase order, to the extent it does not conflict with the Terms and Conditions and Invoice, are the “Agreement” between the Seller and Buyer. Any Agreement is for the provision of Goods only and is not for installation.
Seller’s acceptance of Buyer’s purchase order is expressly made conditional on Buyer’s acceptance of the Terms and Conditions. By accepting the Terms and Conditions, Buyer agrees that the Terms and Conditions supersede those of the Buyer, if any, and void any conflicting terms. Buyer’s assent and acceptance to the Terms and Conditions and Invoice shall be conclusively presumed from payment for all or any part of Goods, From Buyer’s purchase order, from Buyer’s acceptance of Goods, or from Buyer’s agreement to a deferred payment or deferred delivery plan. None of the Terms and Conditions may be added to, modified, superseded or altered, except by a written instrument signed by an authorized officer or agent of Seller.
Seller deals in reclaimed brick and stone and other used materials. They may be scratched, chipped, and/or have some foreign material attached from the environment in their previous life. The color of an individual piece or shipment will vary.
Seller specifically disclaims any warranty that the Goods will be uniform in appearance. No warranty is created by any affirmation of fact or promise made by Seller that is not explicitly stated in this Agreement. Any statement as to the geometric coverage area of the Goods is an estimate only based on previous projects and is not a warranty as to the actual coverage area.
Seller represents and warrants the Goods shall be free of defects in material except as disclaimed herein, for a limited warranty period of one (1) year after delivery. Seller’s complete responsibility for its warranty is limited to the furnishing of sufficient similar Goods to replace defective Goods. The foregoing express warranties are the only warranties given. Seller disclaims any implied warranty, including, but not limited to, any implied warranty of merchantability or fitness for a particular use.
A “Delivery Quote” will be given in the Invoice at the time of ordering. The Delivery Quote is for 1 hour of on-site delivery time by truck, and any additional time on-site is $1.25 per minute. The Delivery Quote may be estimated, depending on the delivery requirements of Buyer. The Delivery Quote and/or additional time charge may change if shipped more than 30 days after the Delivery Quote is given in the Invoice.
Seller shall have no liability or obligation to Buyer of any kind, beyond a refund of payment, to deliver Goods as a result of causes, conduct, or occurrences beyond Seller’s reasonable control, including but not limited to, commercial impracticability, fire, flood, act of war, terrorism, civil disorder or disobedience, act of public enemies, transportation problems and shortages, acts or failure to act of any state, federal or foreign governmental or regulatory authorities, labor disputes, strikes, or failure of suppliers to make timely deliveries of Goods or services to Seller.
If paying with a credit card a processing fee of 2% will be added to the transaction. There will be a processing fee of $50.00 for each returned check.
Buyer may request a deferral of delivery; which deferral Seller must approve. If Seller rejects the deferral of delivery, the purchase order and the Agreement are subject to cancellation by Buyer. If Buyer requests deferral of delivery, and Seller agrees, Buyer is not excused from its obligation to pay for the Goods at the same times and in the same quantities as the original delivery schedule. In addition to adhering to the original payment schedule, Buyer shall pay such storage, shipping, and handling charges as Seller may assess for storing the Goods awaiting delivery. If Buyer requests deferral prior to commencement of production, Seller may require progress payments in connection with expenses for Goods and services incurred by Seller in anticipation of production. Any delivery 60 days past the anticipated delivery date will be considered a deferred delivery.
Invoices must be paid in full before any shipping arrangements for delivery are made.
Deposits shall be made to Seller when requested. All deposits and progress payments are non-refundable. Deposit will be credited to the last shipment in multiple shipment orders.
If delivery is made by vehicles operating on Seller’s behalf, the Buyer shall ensure that: (a) the delivery location is configured in a way that the vehicles can enter and discharge unobstructed on a adequate surface without delay, in a manner suitable for the standards of the industry; and (b) at the time of delivery, an agent or employee of the Buyer will be available who is authorized and able to receive the shipping documents, to direct the vehicle to the unloading site, and to sign the bill of delivery.
If Buyer fails to fulfill these obligations, Seller shall be entitled to act in its sole discretion, on the Buyer’s account and at the Buyer’s risk without the Buyer being able to claim damages, to deliver at an alternative location, to wait in order to deliver safely, to not deliver Goods transported, to invoice freight and/or waiting time, and/or to take other appropriate action. If Seller’s products are delivered by vehicles operating on Seller’s behalf, the risk inherent in such products shall pass with delivery at the delivery location.
If the Buyer, its agent, or a third party assigned by the Buyer collects the Goods from Seller, said party collecting the Goods shall solely be responsible for the Goods’ safe and secure loading and transport. Said party shall solely be responsible for compliance with statutory regulations regarding permissible maximum weight and proper load securing. If Goods are picked up by vehicles operating on Buyer’s behalf, the risk inherent in the Goods and their transport shall pass to Buyer at the time the products leave Seller’s loading facilities. Seller is not liable for damages or losses to its products during transport. Seller is not liable for damages caused by soiled or unsuitable vehicles and transport containers. Seller reserves the right to refuse a request for Buyer pick-up and to cancel any such Agreement. If Buyer collects and transports the Goods, Buyer waives all claims against Seller associated with the transport of the Goods.
Buyer shall make an examination as to quantity and quality of any Goods delivered hereunder immediately upon receipt and failure of Buyer to give notice of any claims within 3 days after receipt of such Goods shall be an unqualified acceptance of such Goods and a waiver of Buyer of all claims with respect thereto. Any claim for failure of performance or breach of the Agreement relating to the delivery of the Goods, must be made on written notice to Seller within 10 days to cure such performance failure or breach. Seller shall be permitted to replace or refund any Goods, at its discretion. No claim of any kind, whether as to Goods delivered or for non-delivery of Goods, shall be greater in amount than the purchase price of the Goods in respect of which such claim is made.
No Goods will be accepted for credit when returned without written permission from Seller. All Goods accepted for credit are subject to Seller's normal restocking charge fee of 25% plus freight cost. If Buyer repudiates conforming Goods, Seller can refuse to accept return, or accept and refund, or sell and charge difference. A minimum restocking fee of 10% will apply to orders cancelled after production but before shipment.
Buyer shall have no right of deduction or set off against sums due Seller for Goods which have either been delivered or which Seller has undertaken to deliver.
Seller shall have the right to rescind all or part of any offer, order or this Agreement if Buyer breaches or fails to perform any of its obligations under this Agreement; Buyer becomes insolvent; proceedings are instituted by or against Buyer under any federal or state bankruptcy of insolvency laws; Buyer ceases operations; or as otherwise provided in this Agreement.
This Agreement shall be deemed to be separable. If any part thereof is held to be invalid for any reason, the other terms and conditions hereunder shall remain in full force and effect. Seller’s waiver of any breach, or failure to enforce any of this Agreement, shall not be deemed to affect, limit or waive Seller’s right thereafter to require compliance with this Agreement.
Buyer agrees to save, defend and hold Seller harmless from any claims, demands, liabilities, expenses or judgments arising in whole or in part, directly or indirectly, out of the use of the Goods by Buyer or Buyer’s customers, agents, employees or invitees involving the use of the Goods supplied by Seller. This indemnification shall include all costs, attorney’s fees and other expenses paid or incurred by or imposed upon Seller in connection with the defense of any such claim.
The parties agree that this Agreement and all course of business between the parties shall be governed by the laws of the State of New York without regard to conflicts of interest laws. Buyer and Seller hereby submit to the exclusive jurisdiction for the resolution of any disputes hereunder to a court of competent jurisdiction located in Buffalo, New York, and both parties hereby waive any objections to the jurisdiction of such court and waive any defense based upon inconvenient forum.
If an event of default shall occur by Buyer, and if thereafter payment is collected in whole or in part through legal proceedings of any nature, then and in any such case Buyer promises to pay all costs of collection, including, but not limited to, reasonable attorneys' fees incurred by the Seller because of such collection, whether or not suit is filed