Last Revised: 05/25/17
I. SURFACE PROS STANDARD TERMS AND CONDITIONS
Please read these terms and conditions carefully. They contain important information concerning customer’s (“Customer”) legal rights, warranties, obligations and available dispute resolution remedies. They also provide that if Surface Pros is unable to resolve any matter to Customer’s satisfaction, Customer will exclusively use arbitration in Connecticut to decide the dispute and Customer will bring its claim solely on an individual basis and not in a class action or representative proceeding.
Except in those instances where Surface Pros and a business Customer (“Business Customer”) enter into a separate written contract for the purchase of products and/or services providing for separate terms of sale, the following terms and conditions will apply. For clarification, the term “Customer” includes Business Customers as well as individuals, and the term Business Customer includes, but is not limited to, government, institutional, and educational customers.
A. SALES POLICY FOR PRODUCTS
1. Wholesale And Retail.
Surface Pros, LLC (“Surface Pros”) sells its complete offering wholesale to Business Customers, while also serving individuals and retail customers.
Prices listed are wholesale or retail and do not include freight, handling fees, taxes, and/or duties, and are subject to correction or change without notice. Market sensitive commodity products will be priced according to current market conditions. Customer should check online at SurfaceProsOnline.com for current pricing. Export orders may be subject to other special pricing. Surface Pros reserves the right to accept or reject any order.
3. Sales Tax.
Customer is responsible for payment of all applicable state and local taxes, or for providing a valid sales tax exemption certificate. When placing an order, Customer shall indicate which products are tax exempt.
4. Payment and Credit Terms.
Surface Pros accepts cash, checks, money orders, Visa, MasterCard, and American Express. For Customers with established Surface Pros credit, payment terms are net thirty (30) days from the date of shipment or pick-up of products. Surface Pros’ preferred method for Business Customer’s payment is via Electronic Funds Transfer (“EFT”) utilizing CTX820 format. All credit extended by Surface Pros and the limits of such credit, is at Surface Pros’ sole discretion, and may be reduced or revoked by Surface Pros at any time, for any reason. As a condition for the continued extension of credit, Customer agrees to provide Surface Pros with current credit information and the latest annual financial statement within five (5) business days following request by Surface Pros. Surface Pros reserves the right to charge a convenience fee for late payments. Surface Pros further reserves the right to charge Customer a late payment fee at the rate of one and one-half percent (1-1/2%) of the amount due for each month or portion thereof that the amount due remains unpaid, or such amount as may be permitted under applicable law. Anticipation and cash discounts are not allowed. Export orders are subject to special export payment terms and conditions identified in Section III. All payments must be made in U.S. dollars. Surface Pros has the right of set-off and deduction for any sums owed by the Customer to Surface Pros.
If the Customer fails to make payment within thirty (30) days of shipment or pick-up, or fails to comply with Surface Pros’ credit terms, or fails to supply adequate assurance of full performance to Surface Pros within a reasonable time after requested by Surface Pros (such time as specified in Surface Pros’ request), Surface Pros may defer shipments until such payment or compliance is made, require cash in advance for any further shipments, demand immediate payment of all amounts then owed, elect to pursue collection action (including without limitation, attorneys’ fees and any and all other associated costs of collection), and/or may, at its option, cancel all or any part of an unshipped order. If Customer fails to comply with these payment terms, Surface Pros may, at its sole discretion, and without notice, immediately terminate any agreements it has with Customer. Upon such termination all amounts owed by Customer to Surface Pros shall become immediately due and payable.
Surface Pros has the right, at any time and in its sole discretion, to immediately change the terms of any credit extended to Customer if: (i) there is a material change in Customer’s financial capability or creditworthiness; (ii) Business Customer enters into or signs an agreement regarding any Change of Control; or (iii) a trustee, receiver or examiner is appointed for Business Customer or its affiliates or subsidiaries or Business Customer’s plan of reorganization is confirmed by a U.S. Bankruptcy Court. “Change of Control” means any (i) sale, lease, or other disposition of all or substantially all of Business Customer’s assets; (ii) transaction or series of related transactions (by stock sale or otherwise) in which any person or entity becomes the beneficial owner, directly or indirectly, of more than 50% of Business Customer’s voting control; or (iii) merger or consolidation involving Business Customer.
Additionally, Business Customer, and each of its subsidiaries and affiliates, agrees to provide to Surface Pros proper authorization necessary for Surface Pros to request any financial information from third parties.
Business Customer hereby unconditionally guarantees payment as a primary obligor of, as provided herein, all purchases made by Business Customer, its subsidiaries and affiliates. Each of Business Customer’s subsidiaries and affiliates purchasing from Surface Pros are jointly and severally liable for all purchases made by Business Customer and its subsidiaries, and Customer is also acting as agent for such subsidiaries and affiliates. Business Customer further agrees to defend, indemnify and hold harmless Surface Pros from any and all claims, injuries, damages, losses or suits, including, without limitation, attorneys’ fees and costs, arising out of, or in connection with any attempt to disgorge or recover payments to Surface Pros made on behalf of Business Customer by a subsidiary and affiliate on the grounds that such payment was improper, unauthorized, or constituted a fraudulent transfer.
5. Security Interest.
Customer hereby grants to Surface Pros a first priority purchase money security interest and/or chattel mortgage in the products and any accounts receivable or cash from resale thereof until full payment is made to Surface Pros. Customer agrees to file, and it permits and authorizes Surface Pros to file, any financing statements or other appropriate documents with its governmental authorities to perfect the validity, priority, and enforceability of Surface Pros’ lien or security interest.
6. Credit Balance.
Customer agrees that any credit balance(s) issued by Surface Pros must be used within two (2) years from the date the credit was issued and may only be used for purchases of products. Any unused credit or portion thereof will automatically expire after two (2) years, or be processed pursuant to state law.
B. DISPUTE RESOLUTION – ARBITRATION
Any dispute of any sort that might arise between Surface Pros and Customer, including any matters or disputes relating to or arising from the purchase or use of any product, service, or information offered or made available through Surface Pros, or arising from or relating to any communication between Customer and Surface Pros or its agents, will be resolved by binding arbitration, rather than in court, and solely on an individual basis and not in a class, consolidated or representative action, except that Customer may assert claims in small claims court if Customer’s claims qualify. The choice of law is Connecticut and the venue for arbitration is Connecticut.
Customer acknowledges and agrees that it is waiving the right to sue or go to court to secure relief. The Federal Arbitration Act and federal arbitration law apply to all disputes between Surface Pros and Customer, including any disputes relating to or arising from any purchases made by Customer.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages).
To begin an arbitration proceeding, Customer must send a letter requesting arbitration and describing its claim to Surface Pros’ registered agent, L. Kay Wilson, WILSON LAW FIRM, 2389 Main Street, Glastonbury, CT 06033. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes if applicable. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879.
Payment for all filing, administration and arbitrator fees will be governed by the AAA’s rules. For claims totaling less than $10,000, Customer may choose to have the arbitration conducted by telephone, or based on written submissions. For all other claims, the proceeding will be conducted in person in Connecticut or at another mutually agreed upon location.
Under the terms of AAA Rule 7 of the AAA Rules, Customer and Surface Pros each agree that the arbitration panel has the power to rule on any objections to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim. If for any reason a claim proceeds in court rather than in arbitration Surface Pros and Customer each waive any right to a jury trial and further agree that any such court proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.
If any provision of this Section B, is held to be invalid or unenforceable, then that provision or portion notwithstanding, this Section B will remain in force and effect, and such provision or portion will be deemed omitted, and this Section B will be construed as if such provision had not been contained herein.
Surface Pros and Customer both agree that either party may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
C. FREIGHT POLICY
Prices stated are F.O.B. origin, freight prepaid to destination specified in the order. Surface Pros charges a shipping and handling fee, (which includes internal handling and related costs), on each order which is applied at time of order and reflected on Customer’s invoice. Separate receipts for shipping and handling charges will not be furnished. Orders over U.S. $1500 (including any backorders) are shipped freight free for standard parcel delivery. COD shipments are not permitted. Other terms and conditions may apply for other than standard ground delivery (“Other Freight Services”), including without limitation, expedited same day delivery, less than truckload (LTL) shipments, air freight, freight collect, export orders, hazardous materials, Customer’s carrier, shipments outside the contiguous U.S. or other special handling by the carrier. Any charges incurred for Other Freight Services must be paid by Customer. Fuel surcharges may be applied. Title and risk of loss pass to Customer upon tender of shipment to the carrier. If the product is damaged in transit, Customer’s only recourse is to file a claim with the carrier.
D. PRODUCT WARRANTY POLICY
1. SATISFACTION GUARANTEE TO ALL CUSTOMERS.
Customer should contact Surface Pros if not satisfied with a product for any reason. Surface Pros will promptly provide an exchange or refund if the product is returned within 30 days of delivery, in its original packaging and with proof of purchase from Surface Pros.
2. LIMITED WARRANTY FOR BUSINESS CUSTOMERS.
A. ALL PRODUCTS SOLD ARE WARRANTED BY SURFACE PROS ONLY TO BUSINESS CUSTOMERS FOR: (i) RESALE; OR (ii) USE IN BUSINESS, GOVERNMENT OR ORIGINAL EQUIPMENT MANUFACTURE.
B. SURFACE PROS WARRANTS PRODUCTS AGAINST DEFECTS IN MATERIALS AND WORKMANSHIP UNDER NORMAL USE FOR A PERIOD OF ONE (1) YEAR AFTER THE DATE OF PURCHASE FROM SURFACE PROS, UNLESS OTHERWISE STATED. PROVIDED THAT SURFACE PROS ACCEPTS THE PRODUCT FOR RETURN DURING THE LIMITED WARRANTY PERIOD, SURFACE PROS MAY, AT ITS OPTION: (i) REPAIR; (ii) REPLACE; OR (iii) REFUND THE AMOUNT PAID BY THE BUSINESS CUSTOMER. BUSINESS CUSTOMER MUST RETURN THE PRODUCT TO THE APPROPRIATE MANUFACTURER, AS DESIGNATED BY SURFACE PROS ON THE SHIPPING INVOICE, SHIPPING COSTS PREPAID. SURFACE PROS’S REPAIR, REPLACEMENT, OR REFUND OF AMOUNTS PAID BY BUSINESS CUSTOMER FOR THE PRODUCT, SHALL BE BUSINESS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY.
3. WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY.
A. FOR BUSINESS CUSTOMERS: EXCEPT AS SET FORTH HEREIN AND WHERE APPLICABLE, NO WARRANTY OR AFFIRMATION OF FACT OR DESCRIPTION, EXPRESS OR IMPLIED, IS MADE OR AUTHORIZED BY SURFACE PROS. SURFACE PROS DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. SURFACE PROS ALSO DISCLAIMS ANY LIABILITY FOR CLAIMS ARISING OUT OF PRODUCT MISUSE, IMPROPER PRODUCT SELECTION, IMPROPER INSTALLATION, PRODUCT MODIFICATION, MISREPAIR OR MISAPPLICATION. SURFACE PROS EXPRESSLY DISCLAIMS ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES TO THE EXTENT PERMISSIBLE. SURFACE PROS’ LIABILITY IN ALL EVENTS IS LIMITED TO THE PURCHASE PRICE PAID FOR THE PRODUCT THAT GIVES RISE TO ANY LIABILITY.
B. FOR ALL OTHER CUSTOMERS: EXCEPT AS SET FORTH HEREIN AND WHERE APPLICABLE, NO WARRANTY OR AFFIRMATION OF FACT OR DESCRIPTION, EXPRESS OR IMPLIED, IS MADE OR AUTHORIZED BY SURFACE PROS. SURFACE PROS DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. SURFACE PROS ALSO DISCLAIMS ANY LIABILITY FOR CLAIMS ARISING OUT OF PRODUCT MISUSE, IMPROPER PRODUCT SELECTION, IMPROPER INSTALLATION, PRODUCT MODIFICATION, MISREPAIR OR MISAPPLICATION. SURFACE PROS EXPRESSLY DISCLAIMS ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES TO THE EXTENT PERMISSIBLE.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY AND OTHER RIGHTS MAY BE AVAILABLE.
4. Warranty Product Return.
Before returning any product, Customer may contact Surface Pros either by emailing [email protected] or calling Surface Pros Customer Service at 888-822-1131. Proof of purchase is required in all cases.
5. Manufacturer’s Warranty.
For information on a specific manufacturer’s warranty, please contact Surface Pros Customer Service at 888-822-1131.
6. Product Compliance and Suitability.
Jurisdictions have varying laws, codes and regulations governing construction, installation, and/or use of products for a particular purpose. Certain products may not be available for sale in all areas. Surface Pros does not guarantee compliance or suitability of the products it sells with any laws, codes or regulations, nor does Surface Pros accept responsibility for construction, installation and/or use of a product. It is Customer’s responsibility to review the product application and all applicable laws, codes and regulations for each relevant jurisdiction to be sure that the construction, installation, and/or use involving the products are compliant.
7. Cross-Reference Information.
Product cross-reference comparisons or product alternatives that are presented do not imply that products are available or perfectly comparable. CROSS-REFERENCED PRODUCTS OR PRODUCT ALTERNATIVES ARE NOT REPRESENTED OR WARRANTED AS FUNCTIONAL OR PERFORMANCE EQUIVALENTS. Customer shall review all cross-referenced product or product alternative specifications prior to purchase and use to determine suitability of the product for Customer’s intended use.
E. PRODUCT INFORMATION
1. Catalog/Website Information.
Surface Pros is a distributor of products. Information about the products in the Surface Pros catalog or web site is provided by the manufacturers and/or suppliers. Product depictions in the catalogs and websites are for illustrative purposes only. Possession of, or access to, any Surface Pros catalog, literature or websites does not constitute the right to purchase products. Surface Pros reserves the right to revise publishing errors in its catalogs or any of its websites. Despite our efforts, occasional pricing errors may occur in the Surface Pros catalogs and websites. Surface Pros reserves the right to cancel any and all orders resulting from such pricing errors, even if Customer has received an order confirmation from Surface Pros.
2. Product Substitution.
Products and/or country of origin may be substituted and may not be identical to descriptions and/or images published in the catalog or on the website.