Robinia, LLC–TERMS AND CONDITIONS OF SALE

 

        1. Acceptance. Any quote (“Quote”) furnished by Robinia, LLC (“Seller” or “Robinia”) is not binding upon Seller until (a) actual receipt by Seller of a written purchase order (“Purchase Order”) from the buyer (“Buyer”) adopting the Quote and all the terms and conditions stated herein, without qualification within ten (10) days after the date hereof, and (b) Seller’s written acceptance of such Purchase Order.  A Quote is valid only for thirty (30) days from the date thereof.
        1. Agreement. The Quote, Buyer’s Purchase Order and these Robinia Terms and Conditions of Sale (“Terms and Conditions”) constitute the final, complete and exclusive expression of the parties’ agreement (“Agreement”).  Any provisions of Buyer’s Purchase Order, which are additional or contrary to the Quote or these Terms and Conditions, shall be deemed to be of no effect.  Even if Seller acknowledges or accepts Buyer’s Purchase Order, such modifications may only be made by a written instrument specifically referencing this Section 2 which is signed by the President of Robinia.
        1. Cancellation. After acceptance by Seller, Purchase Orders shall not be subject to cancellation by Buyer except with Seller’s express written consent and upon terms that will indemnify Seller against all direct, incidental and consequential losses or damage.
        1. Terms of Payment. The total sales price is due with Buyer’s Purchase Order including shipping, unless otherwise negotiated.  Orders will ship only once payment is received in full, unless otherwise negotiated.  Unless otherwise specified by Seller, all prices are F.O.B. Shipper’s factory or warehouse from which shipment is made.  Title to the lumber/goods sold hereunder (“Goods”) shall remain with Seller until the total sales price has been paid in full by Buyer.
        1. Taxes. Any tax imposed on the sale of Goods shall be added to the amount to be paid by Buyer; provided, however, that if Seller does not collect any such taxes and is later asked by or required to pay such to any taxing authority, Buyer will make such payment to Seller or, if requested by Seller, directly to such taxing authority.  At Seller’s option, prices may be adjusted to reflect any increase in the costs to Seller resulting from state, federal, or local legislation, or any change in the rate charge of classification of any carrier.
        1. Delivery Dates; Contingencies. All delivery dates are approximate and Seller shall not be responsible for any damage of any kind resulting from any delay. Seller shall not be liable for any default or delay in performance if caused directly or indirectly by acts of God; war; force of arms; fire; flood; the elements; riot; labor disputes; picketing or other labor controversies or shortages; sabotage; civil commotion; accidents; any governmental action, prohibition or regulation; delay or unavailability of transportation facilities or supply chains; shortage or breakdown of, or inability to obtain, or non-arrival of any labor, material, or equipment used in the manufacture or production of the Goods; failure of any party to perform any contract with Seller relative to the production of the Goods; or, from any cause whatsoever beyond Seller’s control, whether or not such cause is similar or dissimilar to those enumerated.

         

        1. Place of Delivery and Method of Tender. All prices are F.O.B. collect, Seller’s place of shipment.  Unless otherwise requested by Buyer, Seller shall arrange for transportation of the Goods by an appropriate means of transportation.  Buyer agrees to pay all transportation charges incurred after the Goods are delivered by the carrier, if any.  Where Buyer furnishes special transportation instructions, any special expense is to be borne by the Buyer, including special handling, packaging, and additional freight charges.  When “export packing” is required, any extra charges, such as export duties, licenses, fees and the like, shall be borne by Buyer.  Risk of loss of or damage to the equipment or any part of it shall pass to the Buyer upon delivery to carrier at the point of shipment.  All orders delivered via freight will be hand unloaded by the Buyer accepting the delivery in order to ensure all the delivered Goods are not damaged and are satisfactory.  In the event that damaged/defective Goods need to be returned to Seller, it is the Buyer’s sole responsibility for packaging and reloading the Goods for return.

         

        1. Pickup Orders. If Buyer elects to pick up the Goods from Seller, such Goods must be picked up within thirty (30) days of notice from Seller that such Goods are available for Buyer to pick up.  Any Goods not picked up within such timeframe shall be subject to liquidation, and any money paid towards the order will be forfeited.

         

        1. Claims; Inspection. Claims for loss or damage to any Goods must be submitted with a copy of the inspection report of the delivering carrier and countersigned by a representative of the shipping company.  Buyer shall promptly inspect all Goods upon delivery.  No claims against Seller (including claims for shortages) will be allowed unless asserted in writing within three (3) days after delivery.  Failure to comply with the provisions of this Section 9 shall release Seller from any liability relating to claims related to the Goods.  Additionally, any liability of Seller relating to the Goods shall arise only upon prompt return of the Goods claimed to be defective at Buyer’s expense and after notice to Seller of the claimed breach pursuant to the terms of this Section 9.

         

        1. Warranty. Seller warrants that Seller shall have and convey to Buyer good title to the Goods, free from all liens, encumbrances and claims of third parties, and that all Goods shall be new, unless otherwise specified in writing. Buyer acknowledges Seller is only a distributor of the Goods and is not a manufacturer or refurbished.  As a result, except for Seller’s warranty of title, the Goods are sold only with such warranties as may be extended to Seller by the manufacturer and/or Seller’s suppliers of the Goods.  Seller will provide all reasonable assistance to Buyer in obtaining the benefits of applicable warranties offered by manufacturer or Seller’s other suppliers.  The warranty stated herein is made in lieu of all other warranties, express or implied, including but not limited to the implied warranty of merchantability, OR the implied warranty of fitness for a particular purpose. all other warranties BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE, OR OTHERWISE, ARE EXCLUDED AND DISCLAIMED.

         

        1. Grading Rules. Lumber grades for the rough sawn lumber the Goods are generated from by Seller shall be determined in accordance with the rules of National Hardwood Lumber Association (“NHLA”).
        1. Grading Rules for Decking. The following rules will apply for Select & Better decking:
        • Three percent of worm holes are allowed in one (1) face of a board only; on clear face holes are only allowed on the edge (within the extra one inch).
        • Sapwood and “stained sapwood” are allowed only on edges of one face; the other face of the board needs to be free of sapwood or stains. Sapwood is not allowed in the middle of the board, and sapwood with pin holes are not allowed.
        • Milling defects are only accepted in one face of the board if it has been planned and does not change the width or thickness of the board. Milling defects that change the structure of the board are not accepted in either face, only on the extra 1” of the board.
        • Grain tear out is acceptable as long the boards are smooth, but it will be considered within the 3%-5% of total defect’s tolerance.
        • Knots are only accepted as they do not exceed the 3% of defects within the board.
        • Some slight variation in thickness and width are allowed.
        • Slight burn marks are allowed in either face.
        • The end seal of each board has to be a thick wax or paraffin; liquid gel is not permitted.
        • Wrap, bow, crook, cup or any variation of shall not exceed 1/8″ per foot.
        1. Risk of Loss. Regardless of the manner of shipment, and regardless of when title to the Goods passes, risk of loss or damage to the Goods shall pass to Buyer upon tender to the carrier at the factory or warehouse of Seller.  No deferment of shipment at Buyer’s request beyond the dates indicated in the Quote will be made except on terms that will indemnify  Seller against all loss and additional expense, including, but not limited to, demurrage, handling, storage and insurance charges.

         

        1. Limitation of Seller’s Liability. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR AS A RESULT OF, THE SALE, DELIVERY, NON-DELIVERY, SERVICING, USE OR LOSS OF USE OF THE GOODS OR ANY PART THEREOF, OR FOR ANY CHARGES OR EXPENSES OF ANY NATURE INCURRED WITHOUT SELLER’S WRITTEN CONSENT, EVEN THOUGH SELLER HAS BEEN NEGLIGENT, AND BUYER INDEMNIFIES AND HOLDS SELLER HARMLESS FROM ANY AND ALL SUCH CLAIMS OF DAMAGE BY BUYER OF OTHERS.  IN NO EVENT SHALL SELLER’S LIABILITY UNDER ANY CLAIM MADE BY BUYER UNDER THIS AGREEMENT OR OTHERWISE EXCEED THE PURCHASE PRICE OF THE GOODS IN RESPECT TO WHICH DAMAGES ARE  The Seller’s liability for loss or damages on any claim is limited by the previous provisions hereof and shall in no event be more than an amount equal to the sum paid Seller by Buyer for the specific Goods.  Seller shall not be liable for any indirect, special, secondary, incidental or consequential damages, howsoever or whenever the same may arise.

         

        1. Buyer’s Insolvency. Upon the occurrence of any Act of Insolvency (as defined below), Seller shall be entitled to any remedy made available to it at law or in equity including (without limitation) the following:
        • To refuse delivery except for cash, including full payment for all equipment previously delivered.
        • To recover possession from or stop delivery by carrier or bailee.
        • To suspend further delivery of Goods or require payment in advance of satisfactory security or assurance that all invoices will be promptly paid when due before making further deliveries.

        In this Section 15 “Act of Insolvency” means any of the following: (i) any default by Buyer in the performance or observance of any obligation or condition of the Agreement; (ii) the Buyer’s insolvency; (iii) commission by Buyer of any act of bankruptcy (either voluntary or involuntary); (iv) the appointment of a receiver, trustee, or liquidator for or in respect of Buyer or its property; (v) an assignment by Buyer for the benefit of its creditors; (vi) the filing of any petition or answer by or against Buyer asking for reorganization or any other relief under any state insolvency law or under any chapter of the Bankruptcy Act, as may be amended from time to time; or (vii) or Buyer’s failure to make full payment when due for any Goods.

        1. Limitations. Any suit or other action based upon breach of the Agreement or upon any other claim arising out of this sale (other than an action by Seller for any amount due to Seller by Buyer) must be commenced within two (2) months from the date of tender of delivery by Seller.

         

        1. Governing Law. This agreement and the sale of all Goods shall be governed by and construed in accordance with the laws of the State of Georgia.  Whenever there is a conflict of laws, the laws of the State of Georgia shall prevail.  Any claim arising out of, or in any way related to, this Agreement shall be instituted and adjudicated in either the State or Federal District Court in Atlanta, GA.  The parties consent to and agree not to contest the personal jurisdiction of and venue in such courts, acknowledge that these forums are convenient, AND HEREBY WAIVE THEIR RIGHTS TO DEMAND A JURY TRIAL.

         

        1. Delay. Seller is not liable for loss, damage, detention, or delay due to causes beyond its reasonable control, such as acts of God, acts of the Buyer, acts of civil or military authority, fires, strikes, floods, epidemics, war, riot, delays in transportation, limited supplies of the Goods or issues with its suppliers, government restrictions, or embargoes or difficulties in obtaining necessary labor, materials, manufacturing facilities, or transportation due to such causes.
        1. Entire Agreement. The Agreement constitutes the entire agreement between the parties, there being no other promise, terms, conditions, or obligations, referring to the subject matter not contained herein.  All modifications shall be in writing, including email, and acknowledged by both parties.