The following Terms and Conditions apply to the various transactions between homeowners, property owners, property management companies, tenants, or any individual or entity purchasing products, (individually, “Customer” and collectively, “Customers”) and Seven Peaks Fence and Barn and parent company and affiliates (the “Company”). Customers agree to the following applicable Terms and Conditions including when incorporated by reference into a subcontract.
GENERAL TERMS AND CONDITIONS
(Applies to all transactions with the Company)
1.1. “Agreement”– includes bid and quote forms, estimates, invoices, scope of work agreements, authorization to work agreements, subcontract agreements, these Terms, and Conditions, any attachments, schedules, addenda, or exhibits, and all documents incorporated by reference.
1.2. “Customer”– means any individual, entity, or partnership that purchases any Product from the Company.
1.3. “Default”– includes, but is not limited to, failure to make timely payments, breach of an Agreement, or failure to abide by these Terms and Conditions.
1.4. “Issue”– means a dispute, controversy, or claim arising out of or related to an Agreement.
1.5. “Product”– includes, but is not limited to, horse panels, stall kits, round pens, continuous fence, gates, and hardware such as continuous fence clips, hex head self-drilling screws, panel clamps, plastic caps, and hinge sets.
1.6. “Parties”– includes Customer and the Company regarding dispute resolution procedures listed in Section 5 below.
2. Acceptance. The Company conditions its acceptance of any Customer request or agreement on Customer’s acceptance of these Terms and Conditions, which Terms and Conditions supersede additional or different terms contained in any Customer’s order, subcontract, other documents, or communication. Furthermore, the Company conditions its acceptance for orders upon credit approval, as discussed below. Customer’s acknowledgment of any of the Company’s estimate, or acceptance or payment for all or any Product delivered or installed, or any service is conclusive evidence of Customer’s assent to these Terms and Conditions.
2.1. Usage. All designs are copyrighted and are solely owned by the Company. No use, reconstruction, modification, or enhancement in whole or in part is permitted without written permission and consent from the Company. Any unauthorized usage, including, but not limited to, solicitation is strictly prohibited and subject to usage fees, damages, reasonable attorney fees, and costs, and accrue at an interest rate of 10% per annum.
2.2. Acknowledgment. The Customer acknowledges and understands what the Products are and their intended use.
2.3. Product Shortage. Any and all missing Product or shortage thereof must be reported prior to Customer removing Product from the Company’s premises or upon delivery of Product
2.4. Photography. The Company reserves the right to photograph installations upon reasonable notice to Customer. The Company is also permitted to feature the photographs of the installations for future marketing efforts.
3. Payment. Customer shall pay all invoices at the time of order.
4. Refund/Cancellation. Customer acknowledges and understands that all sales are final. However, Customer may cancel an order up to one (1) day prior to pick up or delivery. Proper cancellation of an order shall result in the reimbursement of the full invoice amount. No cancellations after one (1) day prior to pickup or delivery date shall be accepted.
5. Dispute Negotiation. Customer shall attempt in good faith to promptly negotiate and resolve any dispute arising out of, or relating to, these Terms and Conditions or any Agreement between Customer and the Company. This Dispute Negotiation clause shall not preclude any party from filing a statutory construction lien or any other lien appropriate under the law.
6. Warranties. The Company disclaims all warranties, whether express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. In no event will the Company be liable for incidental or consequential damages, whether based on breach of express or implied warranty, breach of contract, negligence, strict liability, or any other legal theory. Use of Products - Customer shall comply with the Product specifications for installation and use. The Company is not liable for personal injury, loss of life, or property damage due to Customer’s alterations or misuse. Customer acknowledges and accepts the risk with alterations or misuse of Product.
7. Integration. Bid, quote, estimate forms, invoices, scope of work agreements, subcontract agreements, these Terms and Conditions, any attachments, schedules, addenda, or exhibits, and all documents incorporated by reference are one agreement and form the entire agreement between the Company and Customer. The entire agreement supersedes any prior representations, whether oral or written, and all other communications between the Company and Customer.
8. Modification. These Terms and Conditions may not be added to, modified, superseded, or otherwise altered, except by a written instrument signed by an authorized representative of the Company that explicitly states, “This Agreement modifies the Company’s Terms and Conditions.”
9. Indemnification. Customer agrees to save and hold the Company harmless from any claims, demands, liabilities, costs, expenses or judgments arising in whole or in part, directly or indirectly, out of the negligence or lack of care by Customer or Customer’s customers, agents, employees, or invitees involving the use of the Product or Services supplied by the Company, including unsecured loads and incidents that may occur involving or pertaining to the Products. This indemnification shall include all costs, attorney fees, and other expenses paid or incurred by or imposed upon the Company in connection with the defense of any indemnity claim.
10. Governing Law and Jurisdiction. Arizona law governs these Terms and Conditions regardless of conflict of law rules, except where specifically stated otherwise. Customer agrees that in the event of litigation, jurisdiction and venue is proper in Maricopa County Superior Court or the United States District Court for the District of Arizona. Customer further agrees that in the event of a dispute, the prevailing party is entitled to its attorneys’ fees and recoverable costs.
11. Severability. If a court, mediator, or arbitrator holds a provision of these Terms and Conditions to be unenforceable, all other provisions remain in full force.
12. Changes to Terms and Conditions. These Terms and Conditions may change at any time and Customer is responsible any changes that are made.