STANDARD PURCHASE TERMS AND CONDITIONS of Marks Furniture Company, Inc., an Alabama corporation sometimes doing business as “Spanish Fort La-Z-Boy Furniture Galleries” (“SFLFG,” which term shall include SFLFG’s officers, directors, agents, employees, contractors, and insurers).
1. Applicability. This Purchase Agreement by and between SFLFG and the individual or entity named therein (the “Buyer”) and the “Terms and Conditions” set forth herein or by reference shall govern the provision and sale of goods and services (the “Goods”) and shall merge together and hereafter be the “Contract” between SFLFG and the Buyer. This Contract shall comprise the entire agreement between the parties absent future amendments and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Buyer acknowledges that Buyer is not relying on any statement or representation of any kind that is not specifically set forth in this Contract. By executing this Contract and/or acceptance of the Goods, Buyer consents to SFLFG sending marketing communications to Buyer by post, phone, email, text and/or other electronic means, until such time as Buyer delivers written notice to SFLFG withdrawing such consent.
2. Parties and Purchase. SFLFG is not a subsidiary of La-Z-Boy, Incorporated (“La-Z-Boy®”). SFLFG is an independent licensee of La-Z-Boy®. SFLFG hereby agrees to sell, and Buyer hereby agrees to purchase, the Goods, in accordance with this Contract.
3. Receipt of Goods. Subject to availability, feasibility and Buyer's approval of this Contract, SFLFG agrees, at Buyer’s election, to allow for one of the following: (1) make the Goods available for pick up by Buyer from SFLFG’s retail location at 34000 Bass Pro Dr., Spanish Fort, AL 36527 (the “Store”), or (2) cause the Goods to be delivered from the Distribution Center located at 15408 Industrial Park Dr., Loxley, AL 36551 (the “Warehouse”) or (3) make the Goods available for pick up by Buyer from the Warehouse. In any of these three scenarios, Buyer agrees to take possession of the Goods within thirty (30) days of SFLFG’s notice that the Goods are available for delivery or pick up by Buyer at the agreed location.
4. Title and Risk of Loss. Except as may otherwise be provided for and agreed upon in writing in printed form and/or electronically with respect to this Contract, title and risk of loss to Goods received by Buyer at the Store or Warehouse shall pass simultaneously to Buyer upon receipt of the Goods at the place of receipt. With respect to Goods delivered by SFLFG, title shall pass to Buyer at the Warehouse the moment the Goods are loaded onto a SFLFG designated delivery truck, and risk of loss to these Goods shall pass to Buyer upon receipt of the Goods at the place of delivery. Buyer shall be responsible for, and indemnify SFLFG against any and all use tax, license fee, assessment, levy and/or sales tax liability in any form or fashion from or to any jurisdiction resulting from the sale, delivery and/or pickup of the Goods.
5. Price. Buyer shall purchase the Goods and/or services from SFLFG at the pricing and for amounts set forth in this Contract. These amounts are exclusive of sales, use and excise taxes, levies, fees, use and any other similar taxes, duties and/or charges of any kind imposed by any federal, state, county, district and/or local governmental entity or authority (the “Taxes”) on any taxable amounts payable by Buyer, and Buyer shall be solely responsible and liable for the payment of all such Taxes.
6. Payment. Buyer shall pay all invoiced amounts due to SFLFG in full prior to any delivery and immediately upon receipt of a SFLFG invoice or statement. Buyer’s liability to SFLFG for Goods purchased remains in effect until paid in full. If any failure to pay a balance due continues for thirty (30) days following written notice thereof, Buyer shall pay interest on any balances due at a rate of 18% per annum, and SFLFG shall be entitled to declare said balances delinquent and take appropriate action to collect all balances due. In addition to all other remedies available under this Contract or at law, SFLFG shall be entitled to suspend the delivery or servicing of any Goods if Buyer fails to pay any amounts when due. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off or any claim or dispute with SFLFG, whether relating to this Contract or otherwise. SFLFG will issue Buyer a receipt in acknowledgement of any payments made to and accepted by SFLFG. Buyer agrees to be responsible for advising SFLFG in writing of any payment that is not acknowledged by a receipt within (3) weeks of tendering an unacknowledged payment. Buyer agrees to assist SFLFG in the payment verification process and promptly furnish SFLFG with any and all information that SFLFG, in its sole discretion, deems necessary to ascertain the validity and proper posting of any unacknowledged payment. Buyer further agrees that the failure to comply with the terms of this paragraph shall cause Buyer to automatically surrender all claims and defenses relating to unacknowledged payments and disputes. In order to facilitate the settlement of credit card charges, Buyer hereby authorizes SFLFG to utilize Buyer’s credit card information to process such charges and credits and settle, as needed, any balances due as they occur. In consideration of SFLFG processing Buyer’s balances by credit card, Buyer hereby agrees to forfeit any and all rights to file credit card chargebacks against SFLFG in any form or fashion with any credit card companies and/or processors. Buyer further agrees to settle any credit card related disputes (including the legitimacy of any charges) exclusively through the Dispute Resolution processes set forth herein. Buyer hereby authorizes SFLFG (without limitation and in SFLFG’s sole discretion) to solicit via phone or electronic mail, pull credit reports when and where needed, and report unpaid balances over 120 days old to any credit bureau/agency deemed appropriate by SFLFG.
7. Financing. SFLFG does not carry accounts or offer in-store financing. All financing is factored through an “Outside Finance Company” (“OFC”). Buyer’s credit worthiness will be determined solely by OFC. Buyer’s liability to SFLFG for any and all amounts remains in effect until an OFC purchases or fully funds Buyer’s charges with SFLFG (the “Funding”). Buyer is solely responsible for obtaining Funding. Buyer agrees to fully cooperate with SFLFG in the Funding process and appoints SFLFG as attorney-in-fact to facilitate and consummate the Funding process without liability to SFLFG. SFLFG may declare Buyer’s unpaid balance immediately due and payable in full after ten (10) days for lack of Funding by OFC. All payment terms in connection with Funding are governed by the contract between Buyer and the OFC. In consideration of SFLFG factoring Buyer’s balances through OFC, Buyer hereby agrees to forfeit all rights to file chargebacks against SFLFG in any form or fashion with OFC, and Buyer further agrees to resolve all disputes with SFLFG related to financing (including the legitimacy of any Funding or charges) exclusively through the Dispute Resolution processes as set forth herein.
8. Disclaimer of Warranties. SFLFG makes NO WARRANTIES OF MERCHANTIBILITY, OR FITNESS FOR A PARTICULAR PURPOSE or any other warranties of quality, product performance or Buyer satisfaction, WHETHER EXPRESSED OR IMPLIED. The sole warranty made by SFLFG is that of title. Any warranty extended to the Buyer is that of the Warranty Maker (e.g. La-Z-Boy®, Kincaid, etc.) and not that of SFLFG. A Current Limited Warranty Card comes attached to all La-Z-Boy® upholstery products. Notify us immediately if your Warranty Card is missing. Contact either SFLFG Customer Care @ 251-300-2020 for questions related to Service or La-Z-Boy® Customer Care @ (734) 242-1444 or refer to your Limited Warranty Card for current warranty information. Buyer shall be responsible for and prepay SFLFG for any costs not covered or reimbursable to SFLFG by Warranty Maker prior to the date on which SFLFG orders any materials and/or commences any warranty services. Buyer acknowledges that there shall be extra charges to repair or adjust cushioning, tailoring, seams or padding (the “Cushioning”) of the Goods at any time after delivery. Buyer’s individual satisfaction with respect to Cushioning is not guaranteed by the La-Z-Boy® limited warranty, if applicable, nor by SFLFG in any form or fashion.
9. Refunds. SFLFG will grant a refund or store credit if Buyer submits a refund request application (that is thereby approved) and returns the Goods in like new condition to SFLFG within four (4) days from the date of delivery. Custom orders are not subject to refund. If Buyer cancels a custom order, Buyer shall be liable to SFLFG for the greater of either the total deposit made by the Buyer on the custom order or 25% of the total purchase price. Stock or floor Goods may be returned for store credit only. Goods purchased by check will be refunded only after Buyer’s bank has honored the check. Credit card purchases will be refunded only to the card account number used for the purchase. SFLFG will review and process any valid claim for refund or store credit within fourteen (14) days of receipt of claim subject to the condition precedent that there are no outstanding chargebacks. Buyer waives and otherwise forfeits any right to claim a refund or store credit and/or other compensation without presenting a receipt verifying purchase of Goods.
10. Costs and Fees. Buyer agrees to be liable for all expenses and costs of collection, including, without limitation, costs of court and attorneys’ fees, incurred by SFLFG in enforcing this Contract or collecting any sums due SFLFG by Buyer.
11. Limitation of Liability. Buyer agrees to hold SFLFG harmless for innocent and/or negligent mistakes, errors, and/or omissions in any way relating to this Contract or the Goods. In no event shall SFLFG be liable to Buyer or any third party (including any and all liability for service, warranty or repair work performed by SFLFG) for injury, special damages, or consequential damages, relating to or associated with the purchase of the Goods or this Contract, regardless of whether such damages were foreseeable and regardless of whether Buyer had been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose. Any remedy of Buyer shall be confined exclusively to the manufacturer and the manufacturer’s warranty, if warranty exists. The maximum total liability of SFLFG arising under, relating to, or in any way associated with the sale of the Goods or this Contract shall not exceed the retail value of the Goods actually purchased by Buyer. WARNING. ALL FURNITURE MAY ACCIDENTALLY TIP OVER, CLOSE, AND/OR BREAK CAUSING SERIOUS INJURY.
12. Waiver. No waiver by SFLFG of any of the provisions of this Contract is effective unless explicitly set forth in writing and approved by the President of SFLFG. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Contract operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
13. Amendment. SFLFG and Buyer hereby agree and acknowledge that this This Contract/Contract may be jointly amended by SFLFG and Buyer (electronically or otherwise) from time to time prior to Buyer’s acceptance of the Goods, or unilaterally by SFLFG wherein any such unilateral amendments shall be effective when posted on SFLFG’s website or when SFLFG notifies Buyer by other means.
14. Force Majeure. SFLFG shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Contract, for any failure or delay in fulfilling or performing any term of this Contract when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of SFLFG, including, without limitation, acts of God, flood, fire, natural disasters, governmental actions, war, terrorism, civil unrest, national emergency, labor disputes (whether or not relating to either party's workforce), viruses, epidemics, pandemics, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials or utilities.
15. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Contract without the prior written consent of SFLFG. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Buyer of any of its obligations under this Contract.
16. No Third Party Beneficiaries. This Contract is for the sole benefit of the parties hereto and their respective heirs, successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Contract.
17. Governing Law. All matters arising out of or relating to this Contract shall be governed by and construed in accordance with the internal laws of the State of Alabama without giving effect to any choice or conflict of law provision or rule (whether of the State of Alabama or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Alabama.
18. Dispute Resolution. THE PARTIES HEREBY AGREE TO WAIVE ANY RIGHT TO TRAIL BY JURY ON ANY ISSUE WHATSOEVER. All disputes or claims arising out of or relating to this Contract or the Goods (a “Dispute”) in which the amount-in-controversy, exclusive of interest and costs, is equal to or greater than $5,000, shall be resolved exclusively by arbitration conducted in Mobile, Alabama in accordance with the then-current rules of the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having proper jurisdiction thereof. Each party shall select and pay the cost, fees and expenses of an arbitrator of their own choosing, and those two arbitrators shall select a third arbitrator. If the two party-selected arbitrators are unable to agree upon a third arbitrator, then the AAA shall select the third arbitrator. All hearings in the arbitration shall be conducted in Mobile, Alabama. The cost, fees and expenses of the third arbitrator, as well as all other costs, fees and expenses associated with the arbitration shall be paid half by each party. All arbitration awards shall be final and binding on both parties. All Disputes in which the amount-in-controversy, exclusive of interest and costs, is less than $5,000, shall be resolved exclusively in the state or federal courts located in Mobile County, Alabama, and each party irrevocably consents and submits to the exclusive jurisdiction of such courts in any such action.
19. Notices. All notices and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of this Contract or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or certified mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Contract, a Notice is effective only (a) upon receipt of the receiving party and (b) in compliance with the requirements of this Section.
20. Severability. If any term or provision of this Contract is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Contract or invalidate or render unenforceable such term or provision in any other jurisdiction.