TERMS AND CONDITIONS

 

 

1.         Terms and Conditions of Sale.  These Terms and Conditions (“Terms”) constitute the offer of Coexist Build, LLC (“Seller”) to sell to you, the customer on the face of Seller’s quote, order confirmation or contract (individually and together with all successors, assigns, heirs, parents, subsidiaries, and affiliate companies “Buyer”), the materials, equipment, and/or goods (collectively, and including, when the context so requires, all finished products incorporating all or part of the materials, equipment, and/or goods, the “Goods”) as set forth on the face of this quote, order confirmation, or contract (“Seller Document”) (the Terms and Seller Document are collectively referred to as the “Contract”). Acceptance by Buyer is expressly limited to the terms of the Seller Document and these Terms, and Buyer's assent to both shall be manifested by Buyer’s execution of the Seller Document or the acceptance by Buyer of any portion of the Goods. Any additional terms, conditions, or counteroffers are rejected, including those set forth in sales documents provided by Buyer. The Contract shall govern this transaction, notwithstanding any additional and/or differing terms and conditions set forth on any documentation of Buyer. Seller hereby objects to any different and/or additional terms and conditions and shall not be bound by any such different and/or additional terms and conditions.  Quotations, if any, are void unless these Terms are accepted and, in the meantime, are subject to change upon notice.

 

2.         Terms of Payment.  The minimum, non-refundable order amount for any Goods furnished on a single order shall be $4,200.  Unless otherwise set forth in the Seller Document, terms are net cash within ten (10) days from the date of invoice.  Seller reserves the right to issue multiple invoices for progress payments at milestones of Seller’s choosing.  If Buyer does not make timely payment, Buyer shall pay a delinquency charge at the periodic rate of one and one-half percent (1½ %) per month (annual percentage rate of eighteen percent (18%)).  Seller may withhold and delay delivery of the Goods due to Buyer’s nonpayment. When delivery is delayed by the Buyer due to nonpayment or otherwise, the Seller may require additional payment for increased or additional costs.  Goods and other material held for the Buyer will be at the risk and expense of the Buyer. If, in the opinion of the Seller, the financial condition of the Buyer is such that Seller concludes that payment to Seller may be at risk, the Seller may require Buyer before shipment of Goods to arrange terms of payment satisfactory to the Seller. In the event of the insolvency, bankruptcy, or default of the Buyer, the Seller shall be entitled to cancel any outstanding contract, to receive reimbursement for its reasonable and proper cancellation charges, and to retain possession of the Goods until the charges therefor are paid. If the charges are not paid by Buyer within thirty (30) days of invoicing, the Seller shall be entitled to cancel Buyer’s order and retain all funds previously paid by Buyer as liquidated damages for difficult-to-quantify costs and not a penalty.

 

3.         Cost Increase.  All modifications to Buyer’s order or to Seller’s base design are subject to a price increase as determined by Seller in Seller’s sole and absolute discretion.  Upon advance written notice to Buyer in each instance, Seller shall be entitled to an immediate adjustment to the unit price for the Goods by the amount of the increase in raw materials or supply cost where any increase in raw material or supply costs increase the total unit price for the Goods by five percent (5%) or more. Seller shall provide sufficient documentation to support any unit price adjustment in accordance with this Section.

 

4.         Government Charges.  Any increase in the Seller’s costs due to: (i) any tax, tariff, duty, or similar charge on any materials, goods, sales, use, or process connected with the Goods; (ii) any regulation or control of the Seller’s purchases, materials, labor costs, sales, or business; or (iii) any legislation, regulation, order, or similar source of authority affecting the Goods or the manufacturing, shipment, or packaging of the Goods; may be added to the price specified as to any undelivered portion of such order. Prices quoted are exclusive of any present or future federal, state, or local sales, use, or excise taxes, export and import tariffs, duties, and license fees, and all other governmental charges.  Where such costs apply, they will be added to the invoice as a separate item unless the Buyer has furnished an acceptable exemption certificate from such charges prior to shipment. Unless otherwise stated on the face hereof, prices quoted are FCA shipping point (Incoterms 2020).  Buyer may be required to obtain construction permits or similar governmental approvals (“Permits”) in order to own, manufacture, design, sell, deliver, resell, repair, install, construct, move, dismantle, demolish, store, or use the Goods.  Seller will not apply for or attempt to procure Permits and takes no responsibility for Buyer’s inability to use the Goods due to Buyer’s failure to obtain the proper Permits prior to receipt of the Goods.  Seller will not be responsible to pay any of Buyer’s permitting fees, compliance costs, expert reports, or similar costs arising from or in connection with the ownership, manufacture, design, sale, delivery, resale, repair, installation, construction, movement, dismantling, demolition, storage, or use of the Goods.  Payment will be due regardless of Buyer’s receipt of any required Permits. In the event that Seller incurs any costs, including reasonable attorney fees, arising from Seller’s legal compliance obligations that are specific to Buyer’s order, said costs will be passed through to Buyer. 

 

5.         Delivery, Title, Risk of Loss.  Shipping and/or completion dates are approximate and are based on prompt receipt of all necessary information and approvals from the Buyer.  Unless the Buyer advises in writing prior to scheduled first delivery that an earlier shipment is not permissible, the Seller reserves the right to ship prior to the shipping date on the Seller Document. Buyer agrees to provide accurate shipping information.  Any clerical errors are subject to correction. All transportation costs, including the costs of delivery at Buyer’s premises, shall be for the account of the Buyer and shall be added to the invoice.  Materials furnished by the Seller shall be delivered to the Buyer FCA shipping point (Incoterms 2020).  Title to and risk of loss of or damage to any material furnished by the Seller under the contract shall pass to the Buyer FCA shipping point (Incoterms 2020).  Seller accepts no responsibility or liability of any nature whatsoever in connection with losses incurred by Buyer in connection with the shipment, transport, or delivery of the Goods.  Risk of loss or damage to the Buyer-supplied material shall be with the Buyer at all times.  Any material sent to the Seller by Buyer shall be delivered by Buyer DDP Seller’s receiving dock (Incoterms 2020).

 

6.         Acceptance of Goods; Construction.  Buyer’s acceptance of the Goods shall be deemed irrevocable within ten (10) days of Buyer’s receipt of the Goods.  Receipt of the Goods will be complete when the Goods are delivered to the address designated by Buyer in the Seller Document.  Buyer acknowledges and agrees that Buyer will be solely responsible for hiring all personnel necessary to install, construct, repair, dismantle, demolish, store, move, or otherwise use the Goods.  Seller will not be liable for any defects in workmanship, construction, or design provided by Buyer or any personnel retained by Buyer.  Seller will not provide any goods or services in connection with plumbing, heating, cooling, electrical, life safety, or other building system or subsystem used in connection with the Goods or incorporated into the Goods.

 

7.         Force Majeure. Seller shall not be liable for failure to perform or for delay in performance due to fire, flood, strike or other labor difficulty, act of God, act of any governmental authority or of the Buyer, riot, embargo, fuel or energy shortage, vehicle shortage, faulty castings or forgings, wrecks or delay in transportation, inability to obtain necessary labor, materials, or manufacturing facilities from usual sources, or due to any cause beyond its reasonable control. In the event of delay in performance due to any such cause, the date of delivery or time for completion will be extended by a period of time reasonably necessary to overcome the effect of such delay.

 

8.         Warranty; Limitation of Liability. Buyer’s exclusive remedies in the event of any material defect, deficiency, or nonconformity of the Goods, are, at the option of the Seller, the return of the nonconforming Goods by the method and at the place then designated by Seller and repayment of the purchase price, or the repair or replacement of the nonconforming Goods. Provided, however, that as an express condition precedent to Buyer’s exclusive remedies, Buyer shall notify Seller within ten (10) days of receipt of the Goods regarding any defect, deficiency, or nonconformity, and Seller shall have a reasonable time to cure such defect, deficiency, or nonconformity. If Buyer does not provide the ten (10) day notice prescribed in this section, then Seller will have no obligations or liabilities with respect to the Goods. Seller will assign any and all warranties it receives from its suppliers to the extent permissible under the terms of the individual manufacturer’s warranties. EXCEPT FOR THE FOREGOING OBLIGATION, SELLER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, OF THE MERCHANTABILITY, OR FITNESS, OR FITNESS FOR A PARTICULAR PURPOSE, OF THE GOODS.  SELLER MAKES NO WARRANTIES OF TITLE, OR WARRANTIES THAT THE GOODS ARE FREE FROM ANY SECURITY INTERESTS OR LIENS OR ENCUMBRANCES. SELLER MAKES NO WARRANTIES AGAINST THE CLAIM OF ANY PERSON BY WAY OF INFRINGEMENT OR THE LIKE. SELLER MAKES NO WARRANTIES REGARDING THE LEGAL REQUIREMENTS IN BUYER’S JURISDICTION WITH RESPECT TO THE GOODS OR THE BUYER’S USE THEREOF.   SELLER MAKES NO WARRANTY THAT THE GOODS, RAW MATERIALS, OR COMPONENTS THEREOF ARE PEST RESISTANT. SELLER MAKES NO WARRANTY REGARDING THE HEALTH OR ENVIRONMENTAL BENEFITS OF THE GOODS.  SELLER MAKES NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. 

 

            The Seller, its contractors, and suppliers of any tier, shall not be liable in contract, in tort (including negligence, breach of warranty, strict liability, default, or any other reason arising out of the use or handling of its product or its performance on this contract), or otherwise for: (i) damage or loss of, including but not necessarily limited to, other property or equipment; (ii) loss of business, profits, or revenue; (iii) promotional or manufacturing expenses; (iv) injury to reputation; (v) loss of customers; (vi) loss of use of equipment; (vii) cost of capital; (viii) cost of purchased or replacement material, goods, or services; (ix) claims of customers of the Buyer; to the extent that such liabilities extend Seller’s obligations beyond the price paid to Seller for the item(s) on which such claim is based. Seller shall not be liable for any special, indirect, incidental, consequential, or punitive damages whatsoever.

 

            Seller accepts no liability whatsoever, in contract, tort, or otherwise for: (i) any customizations, specifications, designs, or other instructions provided by Buyer (“Buyer Specs”); or (ii) personal injury or property damage (including the Goods) arising from or connected to Buyer’s or Buyer’s household members’, licensees’, guests’, agents’, contractors’, or employees’, ownership, manufacture, design, sale, delivery, resale, repair, installation, construction, movement, dismantling, demolition, storage, or use of any Goods or other materials covered by or furnished under the Contract.  Buyer expressly waives any claims it may have against Seller in connection with the foregoing matters and expressly assumes all risk thereof.

 

In addition, as all drawings have been prepared to meet generally accepted professional standards and the

international building code, they have been prepared without any knowledge of, or reference to, the

Buyer's specific site or geographical location. Specific geographic location conditions vary and include, but

are not limited to such things as: frost depth, soil bearing capacity, seismic and wind zones, snow loads, etc.

In addition, local code requirements may vary for issues focusing on life safety, and light and air

requirements, including, but not limited to stair rise and run, egress windows and smoke detectors, etc. It is

the Buyer's responsibility to consult with his or her chosen builder, local building department and a

structural engineer to determine that these documents meet all current federal, state/provincial and local

codes, ordinance/bylaws and regulations, etc. and are appropriate to specific site conditions. Compliance

with such requirements shall take precedence over these documents.

Any use of these drawings and other documents without adaptation to changes in code, standards, site

conditions and other factors is at the Buyer's sole risk. Seller assumes no responsibility for changes made

to these plans by others and makes no warranties, either expressed or implied, in the use of these plans. The

Buyer agrees to defend and indemnify Seller for all claims, costs, loses or damages resulting from the use

of these documents.

As the Seller has not been engaged for construction supervision of any kind, Seller therefore assumes no

responsibility to ensure that construction conforms to these plans. Seller disclaims any liability for

negligence by builders, misuse or misunderstanding of the plan by builders, or defective materials used by

builders (other than those provided by Seller).

Buyer is granted the right to make copies as needed for the construction of one (1) structure per plan

purchase, unless additional licenses are purchased.

 

            The liability of the Seller with respect to the Contract, or anything done in connection therewith, such as the performance or breach thereof, or from the ownership, manufacture, design, sale, delivery, resale, repair, installation, construction, movement, dismantling, demolition, storage, or use of any Goods or other materials covered by or furnished under the Contract, whether in contract, in tort (including negligence) or otherwise, shall not exceed the purchase price for the Goods set forth in the Seller Document. 

 

9.         Indemnification.  Buyer shall indemnify, defend, and hold harmless Seller, its members, officers, managers, employees, agents, servants, successors, suppliers, subcontractors, and assigns from and against all claims, demands, suits, investigations, proceedings, losses, damages, injuries, and expenses, including reasonable attorneys’ fees, expert witness fees, and other costs of suit (collectively, “Claims and Losses”), arising or resulting from claims by third parties alleging any: (i) breach of any provision of these Terms or the Seller Document; (ii)  nonfulfillment or breach of any covenant or other obligation of Buyer under these Terms; (iii)  noncompliance with any law by Buyer, its agents, subcontractors, affiliates, employees, or assigns; (iv)  infringement or violation of any foreign or domestic intellectual property rights of any person by reason of the manufacture, sale, or use of the Goods if such Goods were manufactured, designed, customized, or otherwise altered, in whole or in part, in accordance with specifications provided by Buyer, its agents, subcontractors, affiliates, employees, or assigns; (v)  personal injury, death, or damage to property allegedly arising from (1) negligence or willful misconduct of Buyer, its agents, subcontractors, affiliates, employees, or assigns, or (2) any Buyer-supplied materials or Buyer Specs; (vi) failure to procure the Permits needed to install and use the Goods; (vii) use of the Goods not in conformity with Seller’s or the manufacturer’s specifications, instructions, and building plans; (viii) installation, maintenance, repair, reconstruction, movement, construction, and alteration of the Goods and any fully constructed building utilizing the Goods; (ix)  allegation that the distribution, marketing, sale, or use of the Goods in any jurisdiction is prohibited or restricted by laws, regulations, or decrees, or is in violation of the rights of any third person.  This indemnity will survive the termination of the Contract.

 

10.       Returned Goods.  No Goods shall be returned to Seller without having secured approval and terms for return from the Seller, said approval to be in Seller’s sole and absolute discretion. Goods returned without complete identification in accordance with the Seller’s instructions or without charges prepaid will not be accepted.  The Seller reserves the right to refuse any Goods returned for credit. Goods returned and accepted will be subject to a minimum 20% restocking charge.

 

11.       Termination. The Contract shall not be terminated, in whole or in part, by the Buyer except by agreement in writing from the Seller, and any such agreement will be contingent upon payment of reasonable charges based upon expenses already incurred and commitments made by the Seller plus a charge of 20% of the Contract price to compensate for indirect costs resulting from the termination. The Contract may be terminated at any time by the mutual agreement of the parties, which agreement shall specify their respective remaining rights and duties. The Contract may be unilaterally terminated by Seller for default by Buyer. The Contract or, at the option of the Seller, individual orders placed hereunder (and obligations hereunder) may be terminated by the Seller in the event Seller determines in the exercise of its sole discretion that continued efforts to perform hereunder have been rendered contractually impossible.  In such event, the parties will negotiate in good faith and agree upon their respective rights and duties, but the Seller’s obligations shall never extend beyond those assumed by it under the Article entitled “Limitation of Liability.”

 

12.       Default/Breach. Buyer shall be liable to the Seller for any costs and reasonable attorney’s fees to enforce these Terms and/or the Seller Document, including the costs of executing and collecting on any judgments and the costs of appeal.

 

13.       Merger, Modification, and Waiver. The Contract sets forth the entire agreement between the parties with respect to the subject matter hereof, there being no prior or contemporaneous written or oral promises or representations not incorporated herein.  No amendment, modification, or waiver of the terms of these Terms or the Seller Document shall be binding on either party unless reduced to writing and signed by an authorized officer of the party to be bound and, in the case of a waiver, shall be effective only in the specific instance, and for the specific purpose for which given, and shall not be construed as a waiver of any subsequent breach.  The failure of either party to enforce at any time or for any period of time any of these provisions shall not be construed as a waiver of such provisions or of the right of such party thereafter to enforce each and every such provision.

 

14.       Construction and Interpretation.

The captions in these Terms have been inserted for convenience of reference only and do not constitute a part of, and shall not be considered in construing, this contract. If any portion of these Terms is held by a court of competent jurisdiction to be invalid for any reason, the remainder of these Terms shall not be deemed invalid but shall remain in full force and effect.  No course of dealing, usage of trade, or course of performance shall supplement, explain or amend any term, condition or instruction of these Terms.

 

15.       Applicable Law and Venue.  This Agreement is governed by the laws of the Commonwealth of Pennsylvania and the parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there.

 

16.       Media.  Seller holds rights to use photos of projects containing products sold by Seller to use for personal and professional use in social media for marketing purposes.

 

Seller owns copyrights to all drawings as its “instrument of service”. Drawings are sold on a per-license basis, where a number of licenses is purchased to authorize a number of units built.

 

17. Goods substitute. Seller reserves the right to substitute materials for equal or better value/quality without prior notification of Buyer.

 

 

These terms and conditions apply to all products and drawings supplied by Seller.