1st Choice Door & Millwork, Inc.’s
Terms and Conditions
1. CONTRACT: The sale of the materials described on the customer’s invoice (the “Materials”) is made on the express condition that Buyer assents to the promises, terms, and conditions set forth below, whether or not they are additional to or different from any terms and conditions proposed by Buyer. 1st Choice Door & Millwork, LLC (“1st Choice”), objects to Buyer’s additional or different terms. 1st Choice reserves the right to change its terms and conditions without written notice. The Contract between Buyer and 1st Choice consists of the terms written on the face of the Invoice, these Terms and Conditions, the detailed specifications and drawings, if any, and if applicable, any appendices thereto. This Contract, as described above, contains the entire agreement between Buyer and 1st Choice, which agreement shall not be modified orally or by a failure of either party to enforce its rights hereunder. If any provision of this Contract is held to be illegal, invalid or unenforceable under present or future laws effective during the term of this Contract, the legality, validity and enforceability of the remaining provisions of this Contract shall not be affected thereby. This Contract constitutes all the terms of the agreement between 1st Choice and Buyer and is a complete and exclusive state of those terms. Any terms and/or conditions that differ from these terms and conditions shall not be binding on 1st Choice.
2. SHIPPING: In any case in which 1st Choice makes delivery, Buyer will pay 1st Choice’s customary shipping charges. Delivery will be made at the project site or other place of delivery adjacent to the closest public right of way. Title and risk of loss passes to Buyer upon delivery of the Materials. Should Buyer not be present to accept delivery, Buyer authorizes 1st Choice to unload the Materials and leave them at the delivery destination.
3. DEFECTIVE MATERIALS: Buyer has the right to inspect the Materials upon arrival. Buyer’s inspection rights expire three (3) days after the arrival of the Materials at the delivery destination. A rejection of the Materials by Buyer is not effective unless written notice of rejection is given to 1st Choice within three (3) days of delivery of the Materials. If all or any portion of the Materials delivered to Buyer are properly rejected by Buyer pursuant to this section, 1st Choice will, as the exclusive remedy available to Buyer, do one of the following, in 1st Choice’s sole discretion: (a) replace the applicable portion of the Materials; or (b) cancel the Contract as it applies to all or part the applicable portion of the Materials to be delivered and refund to Buyer any amounts already paid in connection with that applicable portion of the Materials.
4. LIABILITY: Buyer shall, and hereby does, indemnify and agree to pay, defend, and hold harmless 1st Choice, and each of its officers, directors, shareholders, employees, and agents from any liability, loss, damage, cost, expense (including attorneys’ fees) arising from or pertaining in any manner to the delivery, sale or use of the Materials, including actions concerning negligence or Materials liability. In the event that litigation, or other legal proceedings or arbitration, is filed against Buyer or 1st Choice which alleges harm due to defects in the Materials, Buyer agrees to indemnify and agrees to pay, defend, and hold harmless 1st Choice against all liability associated therewith.
5. NO WARRANTIES: In the case of Materials manufactured and sold by 1st Choice with a separate written warranty, that warranty will apply. Otherwise, 1st Choice warrants only that such Materials have been manufactured in accordance with 1st Choice’s specifications and are free from defects in material and workmanship at the time of sale. EXCEPT AS EXPRESSLY PROVIDED HEREIN, 1st CHOICE MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THERE IS NO WARRANTY THAT EXTENDS BEYOND THOSE GIVEN IN THIS
CONTRACT. Buyer acknowledges that lumber and other product dimension descriptions are made consistent with industry standards and do not necessarily represent exact or accurate dimensions. For example, lumber commonly called “2×4” is actually 1.5 inches deep by 3.5 inches wide.
6. TERMINATION: This Contract may be terminated by 1st Choice at any time and with written notice of termination effective on the date that such notice was received by Buyer, upon the occurrence of any of the following events: (a) Any breach of Buyer’s obligations unrelated to payment under this Contract; (b) Buyer’s failure to pay any sum due hereunder within seven (7) days after the amount is due; (c) Upon the insolvency or bankruptcy of Buyer, the inability of Buyer to pay its debts as they fall due or upon the appointment of a trustee or receiver or the equivalent for Buyer, the making of any assignment for benefit of creditors, the admission in writing of Buyer’s inability to pay debts when they come due, or upon the institution of proceedings relating to dissolution, liquidation, winding up, bankruptcy, insolvency or the relief of creditors, if such proceedings are not terminated or discharged within thirty (30) days; (d) Buyer’s engaging in any practice with respect to the Materials which is determined to be illegal or unfair trade practice in violation of any applicable laws; (e) Any lien, levy against, or foreclosure or seizure of a material part of Buyer’s assets or any of the Materials which have been shipped to Buyer by any creditor, lien holder, or lessor.
7. LIMITATION OF LIABILITY: 1st CHOICE SHALL NOT IN ANY EVENT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE MATERIALS. Buyer assumes all risk and liability for loss, damage or injury to persons or property of Buyer or others arising out of the use or possession of any Materials sold hereunder. IT IS UNDERSTOOD AND AGREED THAT 1st CHOICE’S LIABILITY WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE SHALL NOT EXCEED THE RETURN OF THE AMOUNT OF THE PURCHASE PRICE PAID BY BUYER. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS OF THIS CONTRACT MAY BE BROUGHT BY THE BUYER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED. The remedies provided to Buyer in this Contract shall constitute the exclusive remedies available to Buyer and all other remedies that might otherwise be available to Buyer under the law of any jurisdiction are hereby waived by Buyer. Nothing contained herein shall prohibit 1st Choice, however, from recovering incidental, indirect, or consequential damages from Buyer, in addition to other damages and equitable relief to which 1st Choice may be entitled under applicable law, and, without limitation.
8. ATTORNEYS’ FEES: Should any proceeding, arbitration, or litigation be commenced by 1st Choice to enforce the terms of this Contract, 1st Choice shall be entitled, in addition to such other relief as may be granted, to its attorneys’ fees and litigation costs.
9. GOVERNING LAW: This Contract and the rights and obligation of the parties hereunder shall in all respects be governed by and construed in accordance with the internal laws of the State of Florida. Buyer (i) consents to the exclusive jurisdiction and venue of the state courts situated in Orange County, Florida, and (ii) waives any objection to improper venue and forum non conveniens. If any provision of this Contract shall contravene or be invalid under applicable law or regulation, such contravention or invalidity shall not affect the entire Contract, the provisions held to be invalid to be deemed deleted or modified and this Contract interpreted and construed as though such invalid provision or provisions were not part hereof or conformed thereto.
10. ASSIGNMENT: Buyer may not assign any of its rights, duties or obligations under this Agreement without 1st Choice’s prior written consent. Any attempted assignment without 1st Choice’s consent, even if by operation of law, will be void. 1st Choice may assign this Agreement. If 1st Choice so assigns, Buyer releases 1st Choice from all liability under this Agreement and agrees to hold the assignee solely responsible for performance of all obligations.
11. WAIVER: The failure of 1st Choice to insist upon a strict performance of any of these terms shall not be considered as a continuing waiver of any such term or condition, or any other term or condition, or any of 1st Choice’s rights. In addition, if any of the terms of this Agreement are held by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination shall not affect the remainder of this Agreement and such remainder shall remain in full force and effect. The termination of this Agreement shall not terminate any payment, indemnification or confidentiality obligation of Buyer hereunder.
12. INDEPENDENT CONTRACTORS: The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
13. FORCE MAJEURE. 1st Choice shall not be liable for any delay in manufacture or delivery or non-delivery due to fire, flood, strikes, lock-outs, or other labor difficulties, war, civil commotion, plague, pandemics (including the COVID-19 pandemic), epidemics, outbreaks of infectious diseases or any other public health crisis, accidents, delays of carriers, inability to procure carriers, shortages of cars, shortage of fuel, market or other economic hardship including unavailability of energy, supplies, or raw materials or any other causes beyond the reasonable control of 1st Choice (“Force Majeure”) and the existence of such causes or delay shall justify the suspension of manufacture or delivery or non-delivery of the Materials, as the case may be, and shall extend the time of performance on the part of 1st Choice to such extent as may be necessary to enable it to make shipments of the Materials in the exercise of reasonable diligence after the causes of delay have been removed.
