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STANDARD PURCHASE TERMS AND CONDITIONS
Marks Furniture Company, a Florida corporation doing business as “Pensacola La-Z-Boy Furniture Galleries” (“PLFG,” which term shall include PLFG’s officers, directors, agents, employees, contractors, and insurers).
- Applicability. The Purchase Agreement by and between PLFG and the individual or entity named therein (the “Purchaser”) 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 and be the “Contract” between PLFG and the Purchaser. 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. Purchaser acknowledges that Purchaser is not relying on any statement or representation of any kind that is not specifically set forth in this Contract.
- Parties and Purchase. PLFG is not a subsidiary of La-Z-Boy, Incorporated (“La-Z-Boy®”). PLFG is an independent licensee of La-Z-Boy®. PLFG hereby agrees to sell, and Purchaser hereby agrees to purchase, the Goods, in accordance with this Contract.
- Receipt of Goods. Following execution of the Purchase Agreement/Contract, subject to availability and feasibility, PLFG will, at Purchaser’s election, make the Goods available at the retail location: 5078 Bayou Blvd. Pensacola, FL 35203 (the “Store”) or the Distribution Center: 15408 Industrial Park Dr. Loxley, AL 36551 (the “Warehouse”). Purchaser agrees to take possession of the Goods within thirty (30) days of PLFG’s notice that Purchaser’s Goods are available at the Store or Warehouse, as elected.
- Title and Risk of Loss. Except as may be otherwise provided for and agreed upon in Purchase Agreement, title and risk of loss to Goods purchased from PLFG and delivered within the State of Florida (the “In-State Delivered Goods” or “ISDG”) will pass to Purchaser at the time and physical location of Purchaser’s acceptance of ISDG within the State of Florida. Otherwise and notwithstanding anything to the contrary herein or in prior Purchase Agreements, title to Goods purchased from PLFG and delivered outside State of Florida (the “Out-Of-State Delivered Goods” or “OSDG”) shall pass to Purchaser at said Warehouse in Loxley, Alabama at the moment the Goods are loaded onto a PLFG designated delivery truck, and risk of loss to OSDG shall pass to Purchaser upon receipt of the Goods at the time and place of delivery outside the State of Florida. Purchaser shall be responsible for, and shall indemnify PLFG against, all sales and use tax liability to any jurisdiction resulting from sale and delivery of ISDG or OSDG.
- Price. Purchaser shall purchase the Goods from PLFG at the pricing and for the amounts set forth in the Purchase Agreement. These amounts are exclusive of sales, use and excise taxes, levies 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 amounts payable by Purchaser, and Purchaser shall be solely responsible and liable for the payment of all such Taxes.
- Payment. Purchaser shall pay all invoiced amounts due to PLFG in full prior to any delivery and immediately upon receipt of a PLFG invoice or statement. Purchaser’s liability to PLFG 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, Purchaser shall pay interest on any balances due at a rate of 18% per annum, and PLFG 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, PLFG shall be entitled to suspend the delivery or service of any Goods if Purchaser fails to pay any amounts when due. Purchaser shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with PLFG, whether relating to this Contract or otherwise. PLFG will issue Purchaser a receipt in acknowledgement of any payments made to and accepted by PLFG. Purchaser agrees to be responsible for advising PLFG in writing of any payment that was not acknowledged by a receipt within (3) weeks of tendering an unacknowledged payment. Purchaser agrees to assist PLFG in the payment verification process and promptly furnish PLFG with any and all information that PLFG, in its sole discretion, deems necessary to ascertain the validity and proper posting of any unacknowledged payment. Purchaser further agrees that the failure to comply with the terms of this paragraph shall cause Purchaser to automatically surrender all claims and defenses relating to unacknowledged payments and disputes. In order to facilitate the settlement of credit card charges, Purchaser hereby authorizes PLFG to utilize Purchaser’s credit card information to process such charges and credits and settle, as needed, any balances due as they occur. In consideration of PLFG processing Purchaser’s balances by credit card, Purchaser hereby agrees to forfeit any and all rights to file credit card chargebacks against PLFG in any form or fashion with any credit card companies and/or processors. Purchaser further agrees to settle any credit card related disputes (including the legitimacy of any charges) exclusively through the Dispute Resolution processes set forth herein. Purchaser hereby authorizes PLFG (without limitation and in PLFG’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 PLFG.
- Financing. PLFG does not carry accounts or offer in-store financing. All financing is factored through an “Outside Finance Company” (“OFC”). Purchaser’s credit worthiness will be determined solely by OFC. Purchaser’s liability to PLFG for any and all amounts remains in effect until an OFC purchases or fully funds Purchaser’s charges with PLFG (“Funding”). Purchaser is solely responsible for obtaining Funding. Purchaser agrees to fully cooperate with PLFG in the Funding process and appoints PLFG as attorney-in-fact to facilitate and consummate the Funding process without liability to PLFG. PLFG may declare Purchaser’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 Purchaser and the OFC. In consideration of PLFG factoring Purchaser’s balances through OFC, Purchaser hereby agrees to forfeit all rights to file chargebacks against PLFG in any form or fashion with OFC, and Purchaser further agrees to resolve all disputes with PLFG related to financing (including the legitimacy of any Funding or charges) exclusively through the Dispute Resolution processes as set forth herein.
- Disclaimer of Warranties. PLFG makes NO WARRANTIES OF MERCHANTIBILITY, OR FITNESS FOR A PARTICULAR PURPOSE or any other warranties of quality, product performance or Purchaser satisfaction, WHETHER EXPRESSED OR IMPLIED. The sole warranty made by PLFG is that of title. Any warranty extended to the Purchaser is that of the Warranty Maker (e.g. La-Z-Boy®, Kincaid, etc.) and not that of PLFG. 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 PLFG Customer Care @ 850-479-9800 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. Purchaser shall be responsible for and prepay PLFG for any costs not covered or reimbursable to PLFG by Warranty Maker prior to the date on which PLFG orders any materials and commences any warranty services. Purchaser acknowledges that there shall be additional charges to repair or adjust cushioning, tailoring, seams or padding (collectively, the “Cushioning”) of the Goods at any time after delivery. Purchaser’s individual satisfaction with respect to Cushioning is not guaranteed by the La-Z-Boy® limited warranty, if applicable, nor by PLFG in any form or fashion.
- Refunds. PLFG will grant a refund or store credit if Purchaser submits a refund request application (that is thereby approved) and returns the Goods in like new condition to PLFG within four (4) days from the date of delivery. Custom orders are not subject to refund. If Purchaser cancels a custom order, Purchaser shall be liable to PLFG for the greater of either the total deposit made by the Purchaser 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 Purchaser’s bank has honored the check. Credit card purchases will be refunded only to the card account used for the purchase. PLFG 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. Purchaser 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.
- Costs and Fees. Purchaser agrees to be liable for all expenses and costs of collection, including, without limitation, costs of court and attorneys’ fees, incurred by PLFG in enforcing this Contract or collecting any sums due PLFG by Purchaser.
- Limitation of Liability. Purchaser agrees to hold PLFG harmless for innocent and/or negligent mistakes, errors, and/or omissions in any way relating to this Purchase Agreement/Contract or the Goods. In no event shall PLFG be liable to Purchaser or any third party (including any and all liability for service, warranty or repair work performed by PLFG) 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 Purchaser 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 Purchaser shall be confined exclusively to the manufacturer and the manufacturer’s warranty, if warranty exists. The maximum total liability of PLFG 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 Purchaser. WARNING. ALL FURNITURE MAY ACCIDENTALLY TIP OVER, CLOSE, AND/OR BREAK CAUSING SERIOUS INJURY.
- Waiver. No waiver by PLFG of any of the provisions of this Contract is effective unless explicitly set forth in writing and signed by the President of PLFG. 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.
- Amendment. PLFG and Purchaser hereby agree and acknowledge that this Purchase Agreement/Contract may be jointly amended by PLFG and Purchaser (electronically or otherwise) from time to time prior to Purchaser’s acceptance of the Goods, or unilaterally by PLFG wherein any such unilateral amendments shall be effective when posted on PLFG’s website or when PLFG notifies Purchaser by other means.
- Force Majeure. PLFG shall not be liable or responsible to Purchaser, 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 PLFG, 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), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials or utilities.
- Assignment. Purchaser shall not assign any of its rights or delegate any of its obligations under this Contract without the prior written consent of PLFG. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Purchaser of any of its obligations under this Contract.
- 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.
- 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 Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Florida.
- 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 $10,000, shall be resolved exclusively by arbitration conducted in Pensacola, Florida 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 Pensacola, Florida. 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 $10,000, shall be resolved exclusively in the state or federal courts located in Escambia County, Florida, and each party irrevocably consents and submits to the exclusive jurisdiction of such courts in any such action.
- 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 the Purchase Agreement 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) compliance with the requirements of this Section.
- 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.