Terms & Conditions

  1. General

 

  1. These General Terms and Conditions of Sale (collectively, the “Agreement” or “Terms”) are an integral part of, and are incorporated by reference in, all offers and contracts for deliveries and services between Prehung Doors LLC (“PHD”) and its customer listed on the attached purchase order (“Customer”) for the purchase and sale of certain door components and hardware (the “Products”) detailed on the purchase order (the “PO”), and they are the exclusive contractual basis for all business transactions between PHD and Customer, regardless of whether the order was placed verbally or in writing. No additional or different terms or conditions, whether provided prior to or after this Agreement, will be binding upon PHD unless specifically agreed to in a writing signed by an authorized representative of PHD. Failure of PHD to object to conditions contained in any other writing or other communication from Customer shall not be construed as a waiver of this Agreement nor acceptance of any such other provisions. 

  2. PHD is not responsible for compliance with plans or specifications for the Products.  Customer is solely responsible for determining the appropriate type, quantity, size and detail of the Products required for Customer’s end user and to comply with local code requiremets.  PHD reserves the right to provide substitutions so long as such substitutions do not impact technical performance. 

  3. This Agreement serves as notice of PHD’s objection to and express rejection of any terms and conditions of purchase included in Customer’s order or any other document that are different from or additional to this Agreement. No past practice, industry standards, course-of-dealing or usage of trade shall constitute a modification of any term or condition contained herein, nor shall the same add any term not contained herein. These Terms form a part of and are integrated into each order. If these Terms conflict with those of a purchase order, these Terms will prevail unless an express term or condition in such purchase order is stated as an intended and express variation to these Terms.  PHD reserves the right to correct any clerical error in an Offer in writing.

  4. This Purchase Order shall be deemed accepted upon the earlier to occur of (i) Customer returning one copy, duly signed, or (ii) the shipment of the Products, which shall be construed as Customer‘s agreement to all conditions hereof and confirmation that the instructions contained herein are understood and observed. Quantities are approximate.

  5. PHD Field staff are not authorized to agree to any provisions that deviate from these Terms.

 

  1. Offers, Prices, Samples, Intellectual Property

 

  1. Prices are valid for one (1) week from the date of the quote from PHD.

  2. Any cost estimates are non-binding, unless otherwise agreed in writing. A proposal does not constitute a firm offer, but is rather an invitation to Customer to place an order.

  3. PHD is bound by its written offer, including any associated enclosures (together, “Offer”), for a period of one (1) week. Prices are subject to change after an Offer expires.  Verbal declarations and agreements, including verbal acceptances, are legally binding only and to the extent that PHD confirms such verbal agreement in writing signed by an authorized representative of PHD.

  4. The documents that are part of the Offer, including illustrations, drawings, specifications and dimensions, are approximate values unless they are expressly designated as binding.

  5. From time to time, Customer may provide PHD with estimates, forecasts or projections of its future volume or quantity requirements for Products ("Projections"). Such Projections are not binding on PHD, and PHD makes no representation, warranty, guaranty or commitment regarding any Projections. PHD shall issue releases to specify delivery dates or otherwise indicate firm quantities set forth in a Purchase Order.

  6. All cost estimates, drawings, plans and other documents which are part of the Offer are the intellectual property of PHD.  All prices must be set forth in writing.  All prices are quoted in US dollars, FOB or delivery warehouse, and do not include shipping, transport costs, customs duties or any other costs.  Prices quoted in an Offer do not include sales, use, excise, property or similar taxes arising out of or relating to the sale, purchase, ownership or use of Products, and all sales are made subject to applicable taxes, the entire amount of which Customer shall pay. 

  7. Samples are regarded as non-binding demonstration items, unless otherwise agreed in writing. Offers or samples (including with respect to size, quality, weight and color) are subject  to  deviations.

  8. Production takes place in batches. Different batches may result in characteristics, including surface and color, that are readily visible.  Customer is responsible for ordering sufficient quantity of the Products to take into account the buffer quantities required for a uniform design and a special visual impression when ordering. Differences in colour and quality may occur within a single batch. Different batches may exhibit different behaviour with respect to environmental conditions and weathering

 

  1. Delivery, Transfer of Risk, Acceptance and Delay, Custom-Made Products

 

  1. The place of performance is PHD’s place of business in Auburn, Maine or such other place as PHD may designate. Delivery is FOB, unless otherwise agreed in writing. If other agreements are made, such as collection of the goods from a warehouse from a different location, Maine remains the place of performance.

  2. Customer may contract with PHD to deliver the Products, in which case PHD will commission a freight forwarder/carrier in the name of, for the account of, and at the risk of Customer. Customer shall insure any transport risk and arrange for orderly access and unloading.

  3. Each delivery that PHD makes to Customer is allotted two (2) hours of unloading time at no charge. Any additional time will be charged a rate of $75 per hour or partial hour. Each delivery is based upon one stop. Any additional stops will be priced by PHD.

  4. If the Products are delivered to the Customer to a construction site or warehouse, the risk of accidental loss and accidental deterioration of the goods passes to the Customer upon the carrier/forwarder receiving the Products. If prices are agreed “inclusive of freight” or “free site”, then the costs for the transport are included in the agreed purchase price.

  5. Unless otherwise agreed in writing, delivery deadlines or completion dates are non-binding guide values and do not constitute binding or guaranteed fixed dates.

  6. Partial deliveries may be arranged upon written agreement of PHD.

  7. If the delivery/acceptance of ordered goods or partial deliveries is delayed beyond the completion date/acceptance date for reasons which are not related to section 4 of these Terms, PHD has the right to charge Customer for any additional costs incurred due to storage, transport, logistics and additional work.

  8. Agreed delivery periods commence at the earliest on the purchase order acceptance in accordance with Section 1.2 of these Terms.

  9. Customer undertakes to ensure that the delivery site can be accessed properly with the intended transport equipment. Customer is responsible for any damage and shall indemnify PHD from and against any such claims.  PHD has no obligation or liability for the off-loading of the Products.

  10. PHD shall not be in default with respect to its obligations under this Agreement, nor shall PHD be liable to Customer, for any failure or delay in performance of any of its obligations under this Agreement, or for any loss, damage or expense, if such default, failure, or delay is due to any force majeure event, including but not limited to acts of God, strikes, lock outs or other labor disturbances, official state measures or acts or omissions of any government or authority, blockade, insurrection or riots, fires, floods, earthquakes, storm, explosions, natural catastrophes, pandemics, embargoes, acts of war or terrorism, shipping disturbances or other circumstances not attributable to PHD, PHD is released from the obligation to render services for the duration of these events.

  11. Customer must accept all custom-made Products and cannot return custom-made Products to PHD. If the Customer fails to take delivery of custom-made goods after PHD notifies Customer that PHD has commenced production of the custom-made Product, the risk passes to the Customer immediately upon notification, and Customer shall have the immediate obligation to compensate PHD for all resulting damages, including loss of profit, consequential damages and indirect damages as well as storage costs, to the extent that Customer fails to take delivery of such Products. Subsequent changes with regard to quantity, execution and design of custom-made Products must be accepted in writing by PHD in order to be valid.

 

  1. Payments, Rights of Set-off and Cancellation

 

  1. Invoices are due immediately after receipt of the invoice or no later than on the agreed completion and acceptance date. Payment terms are as follows: 2/10 net 30.  PHD reserves the right to require payment in advance.  PHD is not responsible for the failure of Customer’s client to make payment to Customer, and Customer is solely responsible for making all payments due hereunder to PHD. 

  2. PHD in its discretion may refuse performance, including stopping shipments, unless the Customer makes payment for each delivery or provides PHD with security in the amount of the contract price. If the Customer fails to comply, PHD, without prejudice to any other rights, may cancel the Purchase Order and terminate its obligations to Customer.

  3. Any sum not paid by Customer when due will bear interest until paid at a rate of 1.5% per month (18% per annum) or the maximum rate permitted by law, whichever is less. If any amount is not paid when due hereunder, without prejudice to any other rights or remedies PHD may have, PHD may (i) suspend deliveries until it has received payment in full for all outstanding amounts and (ii) recover from Customer the costs and expenses incurred in connection with collecting the same (including without limitation, costs of investigation and reasonable attorneys' fees and costs). All rights granted to Customer under this Agreement with respect to Products are conditioned upon Customer‘s payment in full of all amounts due under each Purchase Order.

If Customer (i) becomes insolvent, files or has filed against it a petition in bankruptcy, makes any assignment for the benefit of creditors, or has a receiver or trustee appointed for it or its property, (ii) liquidates or otherwise ceases doing business as a going concern, (iii) undergoes a change in ownership, (iv) fails to provide adequate assurance or security for credit extended, or (v) takes any other action that PHD

  1. determines in its sole discretion adversely impacts the conditions under whichcredit was extended, then PHD may, at its election, (a) cancel all unfilled orders without notice without liability for damages from Customer, and Customer shall remain liable for all unpaid accounts including service charges; and/or (b) require that all amounts outstanding from Customer hereunder shall at PHD‘s option become immediately due and payable. Customer shall pay all undisputed invoices or portions thereof regardless of any dispute thatmay exist asto other delivered or undelivered Products. With respect to any disputed invoice, Customer shall pay all amounts not in dispute. Customer expressly waives the right to assert any offset or counterclaim with respect to amounts due under any invoice issued by PHD hereunder. Customer agrees to pay all costsof collection, including but not limited to, all court costs and reasonable attorneys‘ fees.  PHD reserves the right to apply any rebate, unapplied cash, or open credit to unpaid invoices if Customer’s account has a past due balance over 61 days from the due date.

  2. Except as otherwise expressly provided herein, all sales are final upon the acceptance of the PO and may not be canceled or changed without written approval of PHD,which PHD may grant, deny or condition at its sole discretion. Without limiting thegenerality of the foregoing, no Products may be returned to PHD without PHD‘s prior written authorization.  Credit for Products returned with PHD‘s authorization will be at the price set forth in the PO less a minimum restocking charge of at least twenty five percent (25%) set at PHD‘s sole discretion; provided however,that if the returned Products are damaged, discontinued, custom, or if the order is unusually large (as determined by PHD), then nocredit for returned Products will be given. All authorized returns shall sent to  PHD’s warehouse point of shipment or such other destination as PHD may specify.

 

  1. Warranty, Inspection and Defects

 

  1. PHD makes no warranty regarding the Products.  Customer’s sole warranty for the Products shall be the warranty given by the manufacturer of the Products which PHD assigns to Customer.

  2. Customer is responsible for inspecting the delivered goods immediately upon receipt.  The delivered Products are accepted (“Acceptance”), upon the first to occur of: (i) the date the Customer provides PHD written notice of acceptance or (ii) two (2) days after delivery, if Customer has not first provided PHD with written notice of rejection. Customer may reject delivered Products only in the event that the Products materially deviate from the purchase order and requirements in the accepted offer.  Any rejection must be in writing that sets forth the nature of such recognizable defects, deviations in quantities or incorrect deliveries, including photographs. In the event of rejection, PHD shall have the right to inspect the rejected Products.

  3. In the event of a justified and timely notification of rejection by the Customer pursuant to these Terms, PHD, in its sole discretion, shall remedy the defect or deliver replacement Products.

  4. Claiming an alleged defect does not relieve Customer of any of its payment obligations to PHD.

  5. PHD makes no representation, warranties or undertakings concerning the Products or any other matter. Accordingly, and except as stated herein, the Products and any services, and all other data, materials, and documentation provided in connection with this Agreement by PHD, including, without limitation, its distributors, representatives, employees, and suppliers, are provided "as is" and "as available," without representations, warranties or undertakings of any kind, and at Customer’s sole and entire risk. No oral or written information or advice given by PHD or PHD’s authorized representative shall create a warranty or in any way increase the scope of the warranty under this Agreement. PHD, TOGETHER WITH ITS DISTRIBUTORS, REPRESENTATIVES, EMPLOYEES AND SUPPLIERS, DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A SPECIFIC OR GENERAL PURPOSE AND THOSE ARISING BY STATUTE OR BY LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE.

  6. Customer shall maintain: (i) insurance coverage necessary to cover the liabilities arising out of any PO, including its indemnification obligations; (ii) commercial general liability insurance in amounts customary for and consistent with Customer‘s business; and (iii) professional liability insurance, including errors and omissions coverage.  In the event any of the foregoing policies of insurance are on a claims-made basis, Customer shall maintain them for at least five (5) years following the completion of each applicable Purchase Order.  Upon request, Customer shall provide a certificate of insurance evidencing such coverage to PHD.  The insurance policy shall include PHD as an additional named insured, state that such insurance is primary insurance, and include a waiver of subrogation in favor of PHD and the PHD Parties (as defined below).

 

  1. Limitation of Liability

 

  1. PHD’s liability arising from, in connection with, or relating to this Agreement shall not exceed the total amount paid by the Customer for the Products that gave rise to such liability (excluding, without limitation, service fees, investigation costs, handling costs, expenses, attorneys’ fees and other third party costs).

  2. In no event shall PHD be liable to Customer for any consequential, indirect, special, incidental, exemplary, or punitive damages (including, but not limited to, damages for loss of business, loss of profits, loss of use, schedule delay, loss of interruption, loss of information) arising from, in connection with, or relating to this Agreement, even if warned of the possibility thereof. The liabilities limited by these Terms apply to liability for negligence, regardless of the form of action or theory of recovery (including contract, warranty, negligence, tort and strict liability, products liability, or otherwise) or any service of PHD or Customer’s use, modification, production, delivery, misuse or inability to use the Products or related documentation, or any portion thereof, even if PHD is advised in advance of the possibility of the damages in question and notwithstanding the failure of essential purpose of any remedy and even if such damages were foreseeable, even if Customer’s remedies fail of their essential purpose. If applicable law limits the application this provision, PHD’s liability shall be limited to the maximum extent permissible.

 

  1. Indemnification

 

Customer indemnifies, defends, and holds harmless PHD and its parent, affiliates, suppliers, subcontractors, agents, sponsors, directors, officers, employees, and other representatives (collectively, the “PHD Parties“) from and against any loss, costs (including reasonable attorneys’ fees) damages, injury, liability arising from any third party claims, demands, or causes of action (each, a “Claim”) resulting from or in connection with: (a) any breach by Customers of these Terms or any Purchase Order; (b) the negligent or willful misconduct of Customer or Customer’s affiliates, subcontractors, contractors and representatives, (c) any and all damages and claims arising out of, in connection with, or relating to the improper use misuse, alteration, modification, or  repair to the Products, or any defect occurring after delivery. 

 

  1. Retention of Title, Security of Claims

 

  1. Until all amounts due have been paid in full, Customer grants PHD a security interest in the goods sold and authorizes PHD to file a financing statement in the appropriate state filing office to evidence such security interest.  PHD shall have all rights of a secured party under the applicable state’s Uniform Commercial Code provisions including, without limitation, the right to take possession of the goods without legal process and the right to require Customer to assemble the goods and make them available to PHD at a place reasonably designated by PHD.  Customer appoints PHD as its agent, to take all such action and to execute and file all such documents and instruments as may be necessary or reasonably requested by PHD to perfect and continue PHD’s security interest hereunder.

  2. Title to the goods passes when PHD makes the goods available to the carrier at PHD’s warehouse. Customer bears the risk of loss for the goods from the point of PHD’s warehouse, and Customer shall insure the goods while in transit and from and after delivery to Customer’s location.

 

  1. Miscellaneous

 

  1. All drawings, designs, specifications, manuals, programs and prices that PHD provides to Customer shall remain the confidential and proprietary property of PHD. All such information, except as may be found in the public domain, shall be held in strict confidence by Customer and shall not be disclosed by Customer to any third parties.

  2. PHD, in its sole and absolute discretion, may revise and update the Terms at any time and from time to time by posting such Terms on its website at  www.prehungdoorsmaine.com.  All changes are effective immediately when posted on the Website and apply to all access to and use of the Website thereafter. Customer‘s continued use of the Website following the posting of revised Terms constitutes Customer‘s acceptance of and agreement to the revised Terms. The Terms as in effect at the time of Customer‘s Acceptance shall govern the terms of sale of the Products contemplated by the Purchase Order so accepted.

  3. If any provision(s) of the Terms are held by any court of competent jurisdiction to be unenforceable or invalid, the remaining provisions of the Terms shall not be rendered invalid or unenforceable as a result thereof.

  4. The Terms are governed by, and shall be construed in accordance with, the law of the State of Maine without reference to the conflict of laws principles thereof.