1. Complete Terms. Sales by Sierra Padre Doors & Windows (“Sierra Padre”) are governed by these terms and conditions. All sales quotes and proposals are offers conditioned on Buyer’s acceptance of all, and only, these terms and conditions, and Sierra Padre objects to any different or additional terms. By signing and returning a quote or proposal to Sierra Padre, Buyer is acknowledging that Buyer has accepted these terms and conditions of sale and agrees to be bound thereby. These terms and conditions can only be modified, waived, or amended by
writing signed by both Buyer and an authorized Sierra Padre representative.
2. Payment. Payment is due according to the terms set forth on the invoice. If Buyer fails to pay any sum owed when due, interest shall accrue on such sum at the rate of 18% per annum or the highest rate allowed by law, whichever is less. A $45 fee shall be charged for any returned check or stop payment. In addition to any other sums owed hereunder, Sierra Padre is entitled to recover its reasonable attorney’s fees and/or collection agency fees and the costs associated with any of its collections efforts.
3. Taxes. All sales, excise, use, or other forms of taxes, levied against this transaction (collectively, “Taxes”), shall be paid by Buyer over and above all other sums Buyer may be or may become obligated to pay hereunder. Taxes shall at all times be the responsibility of Buyer, whether calculated at the time of Buyer’s purchase or upon delivery. Buyer acknowledges and agrees to pay all such Taxes passed through to Buyer.
4. Estimate Disclaimer. Any estimate given to Buyer by Sierra Padre personnel is designed solely to provide Buyer with an estimate of the amounts, types, or sizes of materials and/or products for a given project. All estimates are based upon calculations or data provided by the Buyer and such estimates assume, among other things, normal and typical building and construction techniques. It is the responsibility of the Buyer to confirm the accuracy of all quantities, sizes, and types of materials and/or products being ordered and that each is correct for the project and Buyer’s intended purpose and fit. Consequently, Sierra Padre makes no representation or warranty that the sizes, quantities or types of materials and/or products being ordered are appropriate for Buyer’s intended purpose or that the same is in compliance with any or all building codes, ordinances, or regulations, that may apply to the project or the materials/products intended use.
5. Deliveries. Prices stated “F.O.B. delivered” include costs of transportation to the “ship to” location specified in Sierra Padre’s invoice or bill of lading. The costs of labor for unloading deliveries at the delivery location has not been included in the invoice price, and Sierra Padre is not responsible for unloading at delivery locations. Any increase in delivery costs resulting from Buyer’s instructions to the carrier and any extra costs of utilizing substitute methods of delivery or additional labor shall be for Buyer’s account.
6. Title/Risk. Irrespective of any provisions concerning freight or price, title and risk of loss or damage shall pass to Buyer as follows: (a) if the shipment of goods originates at the manufacturer’s place of business, then upon delivery to the location or carrier specified by such manufacturer’s conditions of sale/delivery; (b) if the shipment of goods originates from a Sierra Padre facility, then upon delivery of such goods to the shipping destination; or
(c) if the goods are picked up by the Buyer or Buyer’s agent from a Sierra Padre’s place of business, then upon granting Buyer access to the order for pick up.
7. Inspection and Notification of Damage or Non-Conforming Products. It is Buyer’s responsibility to inspect all products for possible damage upon receipt. Within 24 hours after the delivery (or within the time specified by the manufacturer, whichever is shorter) Buyer must give notice to Sierra Padre of any claim for damages or deficiencies (including claims based on condition, quantity, quality, or grade of the products). Buyer must specify in detail the basis of such claim and hold the products in question for Sierra Padre and/or the manufacturer’s inspection. The failure of Buyer to comply with these conditions shall constitute irrevocable acceptance of the
goods by Buyer.
8. Storage Charges. If Buyer fails to pick up or accept delivery for orders being held by the manufacturer, Buyer shall be responsible for any fees and costs incurred by Sierra Padre for Buyer’s failure or refusal. Orders that are not picked up or delivered (at Buyer’s direction) within 90 days of receipt by Sierra Padre will incur a storage charge of $65 per storage rack per month. If Buyer fails to pick up or accept delivery within 180 days of receipt by Sierra Padre, Sierra Padre at its sole option may declare Buyer in default and seek any all available remedies pursuant to the default provisions contained herein.
9. Delays. Sierra Padre will not be liable or responsible to Buyer for any failure or delays when such failure or delay is caused by or results from acts or circumstances beyond its reasonable control, including, without limitation, acts of God, flood, fire, earthquake, governmental actions, war, invasion or hostilities, terrorist threats or acts, riot or other civil unrest, national emergency, lockouts, strikes or other labor disputes, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
10. Limited Warranty. Many of the products sold by Sierra Padre come with a manufacturer’s warranty. Notwithstanding such manufacturer warranties, THE PRODUCTS SIERRA PADRE SELLS ARE SOLD “AS IS” AND SIERRA PADRE HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. THE
FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED
UNDER APPLICABLE LAW. To obtain warranty service for defective products, please follow the instructions included in the manufacturer’s warranty.
11. Limitation of Liability. IN NO EVENT SHALL SIERRA PADRE BE LIABLE TO BUYER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE
OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT
SIERRA PADRE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
BUYER’S SOLE AND EXCLUSIVE REMEDY AGAINST SIERRA PADRE FOR ANY CAUSE
WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY BUYER FOR THE
PRODUCTS AND SERVICES BUYER HAS PURCHASED. Buyer agrees to indemnify and hold Sierra Padre harmless from all claims, judgments, liabilities, expenses, or costs arising from Buyer’s breach of these terms and conditions of sale and/or acts of omissions.
12. Default. On default by Buyer (which includes but is not limited to: Buyer’s failure to accept delivery, failure to make payments when due, failure to fulfill the terms and condition of this agreement, Buyer’s insolvency or filing of bankruptcy proceedings), Sierra Padre shall be under no obligation to make further shipments, and may elect at any time to cancel all or any part of the unfulfilled specifications of Buyer, and proceed for the collection of the amount unpaid on shipments previously made. The remedies set forth herein are cumulative of any and all rights or remedies of Sierra Padre as provided by law. The rights and remedies of Sierra Padre may be enforced successively or cumulatively and the adoption of one of more rights or remedies shall not operate to prevent Sierra Padre from exercising any other or further rights or remedies.
13. Applicable Law/Severability. These terms and conditions and any transaction or dispute arising here under shall be governed by the laws of state of California. Should any provision of these terms and conditions be declared void, invalid or unconscionable, for any reason, by any court or other tribunal, the remaining provisions of the agreement shall not be affected thereby and shall remain in full force and effect.
Sierra Padre Doors & Window 1611 S. Rancho Santa Fe Rd. # F2 San Marcos CA 92078