1. Payment. Unless otherwise provided in writing on the ProForma Invoice or Invoice, fifty percent (50%) of the payment price for the DuChateau® Flooring is due when the DuChateau® Flooring is ordered by customer or when the invoice is issued, whichever is earlier. The remaining fifty percent (50%) of the purchase price is due upon receipt of the DuChateau® Flooring. If any amount of the purchase price is not paid to B&M Noble Co. when due, customer agrees to pay interest thereon at the rate of eighteen percent (18%) per annum from the date due until paid.
2. Shipping. Unless otherwise provided in writing on the ProForma Invoice or Invoice, delivery shall be made F.O.B. the place of business DuChateau® Flooring is manufactured. Customer is responsible for risk of loss after delivery. All claims by customer for loss or damage occurring after delivery must be brought against carrier and not B&M Noble Co. B&M Noble Co. shall not be liable or responsible for any failure or delay in delivering DuChateau® Flooring, including any consequential, special, or incidental damages customer may suffer as a result of such delay. Storage charges, based upon B&M Noble Co.’s current storage rates, will accrue for any goods not shipped, at the request of customer, when ready for delivery.
3. Inspection and Acceptance. Customer shall inspect the Products within 24 hours after receipt thereof. Customer shall within 48 hours of receipt give written notice to B&M Noble Co. specifying any defect in, dissatisfaction with, or other proper objection to the Products. Unless customer provides such notice within 48 hours of receiving the Products, customer agrees that it shall be conclusively presumed that customer has fully inspected and accepts the Products and that all of the Products are in good condition. Written notice must be made by sending an email to [email protected]
4. Return Policy. Except as provided in this paragraph and except for Products which are not accepted by customer and for which customer provided timely notice as provided in Paragraph 3, customer has no right to return or exchange any Products. For standard orders, customer may return any portion of the Products ordered; provided, however, that (1) customer pays B&M Noble Co. in advance a 10% restocking fee if within 30 days, 20% for 60 days, 30% for 90 days, no returns after 90 days (2) customer pays for all shipping, and (3) any Products returned must be in brand-new condition, and except for a single box opened for inspection purposes, unopened box(es), and properly secured for return shipment. Includes stock mouldings. In no event shall customer be entitled to return and B&M Noble Co. shall not be obligated to accept any custom ordered Products, any made to order Products, any discontinued Products, any Products for which customer received a discount or rebate of any nature, or any Products which have been installed. In exchange for any portion of the Products properly returned by customer and accepted by B&M Noble Co., customer shall be entitled to a store credit in an amount equal to the price paid (or pro rata portion thereof) of the returned and accepted Products. In no event shall B&M Noble Co. be responsible to provide, and customer shall not be entitled to receive, a cash refund.
5. Limited Warranty. Customer understands and agrees that Products are covered only by the limited warranty applicable to the products purchased (“Applicable Limited Warranty”). No other warranty is provided. Copies of the Applicable Limited Warranties are available to customer on our website and have been provided to customer. Other than the Applicable Limited Warranty, customer warrants and represents that it is not relying on any promise, warranty, or representation regarding the Products and that no promise, warranty, or representation constitutes the basis of the bargain for the purchase of Products .
6. LIMITATION OF LIABILITY. B&M NOBLE CO. SHALL HAVE NO LIABILITY UNDER ANY CIRCUMSTANCES FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF B&M NOBLE CO. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITY OF B&M NOBLE CO., REGARDLESS OF THE BASIS OF THE CLAIM, SHALL BE LIMITED TO THE CONSIDERATION ACTUALLY PAID HEREUNDER. THIS LIMIT OF LIABILITY IS A MATERIAL TERM OF THIS AGREEMENT AND B&M NOBLE CO.’S AGREEMENT TO PROVIDE DUCHATEAU® FLOORING TO CUSTOMER IS DEPENDENT UPON ITS INCLUSION.
7. Warranty and Indemnity. Customer warrants and represents that customer has provided (or will provide prior to making any sale) a copy of DuChateau® Flooring Limited Warranty to the end user of B&M Noble Co.’s products referenced in the Pro Forma Invoice or Invoice. Customer warrants and represents that customer has explained (or will explain prior to making any sale) to the end user that wood products may vary and the colors, pattern, or grain represented in any sample may differ from the flooring product actually delivered. Customer has been advised and represents and warrants that customer has advised (or will advise prior to making any sale) the end user that professional contractors should be used to install DuChateau® Flooring and improper installation may void any warranty. Customer agrees to indemnify and hold harmless B&M Noble Co. from and against any damage, liability, claim, expense, cost, or attorney’s fees arising out of or relating to any claim against B&M Noble Co. by end user of B&M Noble Co.’s products referenced in the Pro Forma Invoice or Invoice.
8. Governing Law. This agreement shall be interpreted in accordance with the laws of the State of California without regard to any conflict of laws.
9. Forum Selection. Customer hereby submits to the exclusive jurisdiction of the state of California. B&M Noble Co. and customer agree that the Superior Court of California shall have exclusive jurisdiction to adjudicate any claim or controversy arising out of or relating to this agreement or DuChateau® Flooring.
10. Entire Agreement. The Pro Forma Invoice, Invoice, these Terms and Conditions, and the DuChateau® Flooring Limited Warranty set forth all covenants, agreements, conditions, and understandings between the parties concerning the flooring provided and there are no other such covenants, agreements, conditions, or understandings between the parties, either oral or written. This agreement is intended solely for the benefit of the parties herein and is not intended to benefit any third person or party.
11. Severability. If any term, covenant, condition or provision of this agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall continue in full force and effect and shall in no way be affected, impaired or invalidated.
12. Venue. The parties acknowledge and agree that this agreement was entered into in San Diego, California, and all payments pursuant to this agreement shall be made in San Diego, California. The parties further agree that all actions or proceedings arising in connection with this agreement shall be tried and litigated exclusively in the County of San Diego, State of California.
13. Time Limit for Bringing Suit. Any action arising out of or relating to the Products or these Terms and Conditions must be commenced within one (1) year after the claim arises, but in no event more than two (2) years after customer purchased the Products .
14. Waiver. The failure of either party to enforce at any time any of the provisions of this agreement or to require at any time performance by the other party of any of such provisions, shall in no way be construed to be a waiver of such provisions, nor in any way to affect the validity of this agreement or any parts thereof, or the right of either party thereafter to enforce each and every provision.
15. No Authority to Bind. Customer has no authority and shall not hold itself out as having authority to bind B&M Noble Co. to any contract, term, provision, representation or warranty. Customer shall be solely responsible for any statements, representations, or warranties made by Customer or its agents, employees and representatives.
16. Modifications. These Terms and Conditions may be amended, modified, or otherwise changed by B&M Noble, in its sole and absolute discretion, at anytime. Changes to these Terms and Conditions will be published on B&M Noble Co.’s web site. Customer acknowledges and agrees that the Terms and Conditions published on B&M Noble Co.’s web site on the date the Pro Forma Invoice is signed by customer or the Products are shipped, whichever date is earlier, shall govern.
17. Holding Material. We will hold merchandise up to 60 days. After 30 days, credit terms will start. After 60 days, storage fees will be applied at a rate of $50 per pallet per month.