This Credit Application is being submitted by Buyer for the purpose of obtaining credit from Lee-Wright, Inc. d/b/a Professional Flooring Supply Co. (“Seller”) for the purchase of goods and materials (collectively, the “Product(s)”) from Seller. Seller’s extension of credit to Purchaser is made expressly conditional on Buyer’s assent to the following Standard Terms and Conditions of Sale (these “Terms”):
1. Buyer certifies that the above information is true, accurate and complete, and that Buyer is solvent and able to pay within established payment terms. Buyer further understands that Seller will rely on this information in deciding whether to extend credit. Buyer understands that the submittal of this application does not constitute a credit account until approved by Seller. Buyer authorizes Seller from time to time to obtain Business and Consumer Credit Reports on Buyer, any principals or guarantors listed above or to obtain credit and funding information from any other persons or entities.
2. All sales of Products by Seller to Buyer shall be subject to these Terms. These Terms represent the full understanding of Seller and Buyer and supersede all other agreements, written or oral, regarding its subject matter. TERMS THAT ARE PRINTED ON OR CONTAINED IN A PURCHASE ORDER OR OTHER FORM PREPARED BY BUYER THAT ARE ADDITIONAL TO, IN CONFLICT WITH, OR INCONSISTENT WITH THESE TERMS ARE, UNLESS EXPRESSLY AGREED TO IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF SELLER, REJECTED BY SELLER AND SHALL HAVE NO FORCE OR EFFECT.
3. Except as otherwise agreed to by Seller in writing, these Terms, together with Seller’s quotation, order acknowledgement, or a separate written and signed agreement, as applicable, shall constitute the complete and final agreement between Seller and Buyer (this “Agreement”), superseding completely any prior oral or written communications. This Agreement may not be changed, modified, or amended, except in writing signed by an authorized representative of Seller.
4. Seller may stop the manufacture or supply of any Products when it, in its sole discretion, determines that Buyer is in breach of this Agreement or any other contract with Seller, or Seller has insecurity with respect to Buyer's creditworthiness, until payment is made, and any dispute or insecurity has been resolved to Seller’s satisfaction. Buyer further agrees that Seller shall not, in any event, be responsible for any damage due to delay in supply of any Products.
5. Payment terms are indicated on each invoice. Accounts not paid within terms become subject to credit hold and subject to collection. Seller may charge interest on any outstanding balance due and owing from Buyer at the highest rate allowed by law. Buyer further agrees to pay all cost incurred in collection, including attorney's fees, if this account is placed with an attorney for collection, whether suit is filed or not. Buyer expressly agrees to submit to personal jurisdiction in Tarrant County, Texas, and agrees that this Agreement is performable in Tarrant County, Texas, and the forum for any litigation arising out of or related to this Agreement shall be Tarrant County, Texas or in any other county at Seller’s discretion. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Texas.
6. Buyer will be responsible for payment on all amounts due under this agreement no matter what person or entity ordered the Products, until such time as the Seller receives written notice terminating this Agreement. Buyer shall notify Seller in writing of any agent or employee not authorized to purchase under this Agreement.
7. As to goods delivered by Seller's truck, title passes upon delivery at the place Buyer receives possession; and, thereafter, all risk of loss or damage shall be on the Buyer. Deliveries by common carrier are f.o.b. shipping point. On direct shipment from manufacturers, title passes to Buyer at point and time of delivery to carrier; and, thereafter, all risk of loss or damage shall be on the Buyer. Damage or shortage claims arising from direct shipment are to be made by Buyer against carrier. Seller assumes no responsibility beyond delivery to carrier in good order and is not responsible for loss, damage, or delay occurring thereafter. All items shown as freight allowed pertain to items and quantities. Any deviation after placement of order, such as changes in quantity or partial release, will be subject to the manufacturer's terms and conditions where applicable. Extra labor or mechanical facilities required to unload shall be provided by Buyer without any cost to Seller.
8. Seller assumes no responsibility for Products meeting any job specifications or requirements unless specifically so stated in its written quotation. Seller extends no warranties, written, oral, implied, or statutory, relating to the product sold. Further, SELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. BUYER AGREES TO LOOK SOLELY TO THE MANUFACTURER FOR ANY BREACH OF WARRANTY CLAIM.
9. Buyer agrees that any claims that charges reflected on invoices or statements are inaccurate are WAIVED if the charges are not contested within 30 days of the receipt of such statement or invoice. Normally stocked items in resalable condition will be accepted for credit subject to a 25% restock charge. Products will not be accepted for return after 30 days from date of delivery. All returned Products must be accompanied by the original invoice and/or cash receipt. Special order items will not be accepted for return until Seller has secured permission and terms of return from Seller's source of supply.
10. Buyer understands that it must notify Seller writing, of any change in ownership, name of the entity, or in the business structure of the entity under which credit is established, no later than 30 days after such change is effective. Notification should be sent to PFS Credit Department, PO Box 7558, Ft. Worth, TX 76111, or by email at Credit@ProfessionalFlooring.com.
11. SELLER’S MAXIMUM LIABILITY FOR ANY DAMAGES OF BUYER FOR ANY TRANSACTION ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE PURCHASE PRICE OF SELLER’S PRODUCTS THAT ARE THE SUBJECT OF THE DAMAGES BEING CLAIMED BY BUYER. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST REVENUES AND PROFITS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH CLAIM IS BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LAW OR EQUITY.
12. Buyer and Seller hereby knowingly, voluntarily WAIVE ANY RIGHT TO TRIAL BY JURY in any suit, action, proceeding, or counterclaim from any transaction which arises from or is related to this Agreement. Buyer and Seller agree that any such suit will be tried before a court and not before a jury. This provision is a material inducement for Seller to enter into this Agreement.
13. Buyer acknowledges receipt of the following notice: The Federal Equal Credit Opportunity Act prohibits creditors from discrimination against credit applicant based on race, color, religion, national origin, age, sex, or marital status, the fact that all or part of the applicant’s income is derived from a public assistance program, or the fact that the applicant has exercised any right under the consumer protection act. The federal agency that administers compliance with this law concerning this creditor is the Federal Trade Commission, Pennsylvania and 6th Street, N.W., Washington, DC 20580.
14. The undersigned hereby represents that he/she is authorized by Buyer to execute this legally binding Agreement.