E&K VINTAGE WOOD, INC.

TERMS AND CONDITIONS

PLEASE REVIEW THESE TERMS AND CONDITIONS (ALSO REFERRED TO AS “AGREEMENT” OR “T&Cs”) CAREFULLY.  THIS AGREEMENT IS A FUNDAMENTAL PART OF ALL ORDERS AND EXPLAINS CLIENT RIGHTS AND OBLIGATIONS,  AND YOUR PLACEMENT OF AN ORDER WITH E&K VINTAGE WOOD, MEANS CLIENT, HEREBY ACKNOWLEDGES, AGREES, AND UNDERSTANDS THAT THESE TERMS AND CONDITIONS ARE HEREBY MADE A PART OF ANY AND ALL AGREEMENTS AND ANY AND ALL INVOICES BETWEEN CLIENT AND E&K VINTAGE WOOD, INC (“E&K”).

1. PAYMENT

• E&K’s invoices are payable upon receipt; therefore, payment is due immediately.
• To initiate an order with E&K, Client must pay the full amount of the deposit listed in the estimate sent by E&K.
• Orders must be paid in full within 96 hours of notification that order is complete by E&K (“completion date”).
  • Orders will not be shipped until payment is made in full.
  • Any order that has not been paid in full past 96 hours of the completion date is subject to a service charge of 2% interest per month on the unpaid balance.
  • Any order not paid within 30 days of the completion date may result in a cancellation of the order and forfeit of deposit, at E&K’s sole discretion.
  • Any order not paid within 15 days of the completion date will incur storage fees of $100 per month per 1000 board feet.
  • Orders not in stock require an upfront deposit, to be tendered by Client to E&K, of fifty to seventy-five percent (50%-75%), with the exact amount depending on each case and to be quoted by E&K to Client, of the amount of the order as quoted by E&K to Client. The remaining balance owed to E&K by Client must be paid prior to delivery.
  • Orders that involve milling may, at E&K’s sole option, require a fifty percent (50%) upfront deposit, a twenty-five percent (25%) progress payment at a time to be determined by E&K, and the remaining balance paid prior to delivery.
• Client understands and agrees that once E&K begins work to fulfill a Client’s order, E&K is expending time and resources for which E&K cannot be compensated if the order does not proceed. Moreover, because of the custom nature of E&K’s products, goods, and services, E&K cannot repurpose items ordered for a Client.
  • Deposits referred to in this section, once paid to E&K by Client, are non-refundable and shall be deemed to be earned by E&K when paid by Client.
• All E&K products are SOLD AS IS with no warranties.
• If Client uses purchase orders, neither the existence of a Client’s Purchase Order nor any term thereof shall supersede these Terms and Conditions, which shall prevail over any term of such Purchase Order.

2. DELIVERY

• Client is responsible for arranging delivery of product. As a courtesy to Client, E&K may retrieve shipping quotes on a Client’s behalf.
  • Unless otherwise specified in writing on E&K’s invoice, delivery terms are FOB E&K’s facility and location. Once loaded for shipment by E&K, responsibility of the goods transfers from E&K to Client.
  • Delivery is CURBSIDE. Unless Client arranges otherwise, Client is responsible for getting Client’s order from the curbside of the location to its intended place of storage.
  • E&K will make every effort to work within quoted and estimated time for deliveries and pickups. However, due to many uncontrollable factors such as weather delays, availability of appropriate trucking companies, equipment failure, quality checks and other unforeseen possibilities, E&K makes no representation that delays will not occur, and E&K shall not be responsible for any delays beyond its control.
  • Deposits will not be refunded if the product is returned or not accepted or delivery is declined.
  • For additional delivery terms, please see below.3.         PRODUCT LIABILITY

1. Reclaimed Wood Characteristics

E&K’s products are manufactured from vintage, reclaimed, or rescued wood. All reclaimed wood varies in tone and texture, dependent on many conditions such as (but not limited to) wind and sun exposure, climate and weather conditions, and application of material. Although our samples represent typical coloring inherent in each particular barn or structure from which the sample was taken, organic variations in tone should be expected within the scope of a full order, and Client hereby acknowledges the potential for such variations. Further, unless otherwise specified, all reclaimed wood will have character marks such as nail-holes, knots and cracks. These features are part of the charm and aesthetic of reclaimed wood, are also hallmarks of its authenticity, and E&K makes no claim, representation or warranty that these features will not be present in any particular order. Measurements of milled reclaimed lumber are not exact due to the nature of the wood and dimensions may vary from the stated size.  The amount of variance will be listed on the quote..

The imperfections and variations in the wood make it unique giving our clients a tremendous advantage – our Clients will have a hard time finding new wood that comes close to matching E&K products’ uniqueness, character and overall quality. Additionally, some of the very characteristics that give reclaimed wood its appeal also have practical implications to be considered.

            b.         Products are sold “AS IS”

With the exception of the limited protection specifically provided herein, all E&K products are sold as-is, with no warranties or representations of any kind, express or implied.  E&K makes no warranties or representations relative to the fitness of its products for a particular use or in a particular location.  E&K also disclaims any role in the construction of any structure or element by Client, and Client hereby understands, agrees, and acknowledges that E&K is a supplier only and E&K does not and will not play any role in the evaluation of whether products sold to client by E&K are suitable for any particular use; that is exclusively up the Client and is not the responsibility of E&K in any way.  E&K further makes no representations about likely yield percentages or waste factors for Client’s use or application. It is the Client’s responsibility to verify the suitability of E&K products for the project and to determine appropriate quantities to order, accounting for yield/waste issues. E&K encourages Client to physically inspect products before ordering them whenever possible.

4.         FINISHED PRODUCTS

E&K’s finishing facility employs artisans that finish our antique, varied character, wood by hand. Our samples are intended only to represent a general tone palette of each of our custom finishes, and E&K neither warrants nor represents that the samples are a full representation of the product. Inherent variations in each finish such as streaks, color changes and other effects will occur from board to board and Client hereby agrees that such variations are acceptable to Client.

5.         ORDER INSPECTION BY CLIENT

1. Quantity

Although E&K products are visually inspected by E&K, Client MUST, and hereby agrees to, check for damages or missing items and let E&K know of any concerns immediately upon receipt of the product and prior to opening up the bundles and spreading the wood.  E&K will not provide any compensation for claims of missing material if the bundles have been cut open.

E&K’s label will list the number of boards, the average length, the total linear feet and the total square feet or board feet.

The wood is packaged by E&K so that the number of boards can be counted easily by Client and the boards are all flush on one side so that an estimated length can be determined. With the average length and width of the boards and the number of boards, Client can determine the total linear feet of the order. and calculate the square foot or board foot totals.

If Client believes that there is any shortfall, Client must take a picture of the bundle from the back end and send the picture to E&K within the time specified in these Terms and Conditions.  Client must make sure that the picture shows all the boards.   Client must also take a picture of a tape measure on the bundle showing the average length.

If E&K determines that E&K did ship Client less material than Client ordered, E&K will send Client additional material or refund Client for the material that was missing.

1. Quality

Client has 3 days from receipt of the material from E&K to inspect the material and notify E&K of any issues related to the quality of the material. Quality refers to the following characteristics in the material: damaged or broken items, incorrect size, incorrect milling, and incorrect color is substantially different from the description.

E&K will provide, at Client’s request, other sources of information about its products to communicate information about the physical characteristics of its products, e.g., wood samples, photos, and other secondary sources of product information. Clients should not rely upon unauthorized statements (verbal, written or online) which are inconsistent with or add information to product documentation, proposal terms or E&K policy documents (including this Product Liability and Return Policy), whether said statements are from employees, partners or affiliates.  E&K’s Terms and Conditions shall supersede any such statements.

6.         SPECIFICATIONS AND MEASUREMENTS

E&K’s product documentation and proposal terms focus on E&K’s products’ characteristics, and not on the practical implications of those characteristics for any project application including any use by Client. Where documentation or proposal terms mention specific possible practical implications of E&K’s products’ characteristics (and/or set forth possible approaches for addressing such implications,) such terms are intended to notify Clients to carefully consider when deciding how and where to use E&K products. Nothing in E&K’s product documentation or proposal terms shall be interpreted as in any way guaranteeing or warranting the result of a specific method of  addressing a practical implication of a product characteristic or installing or using E&K products.

E&K in no way represents that its product documentation and proposal terms capture any or all of the physical characteristics (or even all of the important physical characteristics) of its products, let alone all of the potential implications of those characteristics for application.

E&K is not an architect or engineer and makes no representations and accepts no liability for the suitability of its products in meeting local building codes, engineering requirements or structural uses of its products.

As a service to its Clients, E&K will sometimes make available information originating from others (research, articles, user feedback, etc.) which might be helpful in the process of deciding how to install or use E&K products. E&K makes no representations or warranties, and hereby disclaims any such representations and warranties, concerning the accuracy of this information or its applicability to Client-specific situations.

E&K relies on the client to provide the specific measurements of all material.  Even if Client provides E&K with building plans and drawings, or even if E&K comes the site and takes measurements, it is still the responsibility of Client to do Client’s own measurements.  Client should check all measurements listed on the estimate and invoice.  E&K shall not be responsible for providing incorrect measurements.

              a.       Treatment / Mold or Fungus/ Insects / Nails

Products with (1) chemical treatments of which Clients are not informed or (2) mold/fungus issues of which Clients were not informed and were existing at the time of product shipment will be viewed as being a materially different product from that described on a relevant product specification sheet whether or not such a specification sheet actually exists. As with other nonconforming products, the Client must notify E&K of treatment or mold/fungus issues within ten (10) days of product shipment; failure to do so shall mean that Client has waived any rights against E&K stemming from the treatment or mold/fungus issues. E&K accepts no liability or responsibility for mold/fungus issues which arise after Client’s receipt of E&K products.

E&K does not warrant or represent its products to be free of metal, dirt, insects/bugs or other contaminants. Even when E&K removes metal from a product, Client is solely responsible for verifying that the material is fit for sawing or other processing. E&K may, at Client’s request, kiln dry the ordered material or apply borate, fumigants or other treatments in an attempt to reduce the potential for the presence of insects. These services do not create a guarantee or warranty that the material is or will be completely insect- free. E&K shall have no liability or responsibility to Client for any damage, injury or harm to persons and/or property resulting from the processing or use of E&K products.

E&K’s responsibility to Client for products which do not conform to applicable documentation (including the special cases of mold/fungus addressed above) is limited to the replacement of product or the refund of purchase price, and E&K shall have no responsibility at all if Client fails to notify E&K of any nonconformance or other issues with E&K product any later than ten (10) days of shipment of product by E&K to Client. E&K accepts no other liability or responsibility for rejected and/or defective products, and hereby disclaims the same.

 

7. ADDITIONAL DELIVERY/SHIPPING POLICIES

Client shall pay all shipping charges and any additional charges for special packaging requested unless otherwise specifically provided in writing in E&K’s invoice. E&K recommends that Client arrange to have the appropriate assistance and equipment available to move the order at the time of the delivery. Weather or other conditions could damage any product left at curbside, so it is important to have adequate storage available. E&K recommends that Client consider the accessibility of the street or driveway of the delivery address as orders are typically shipped on full-size semi-trucks. If the delivery destination cannot accommodate the delivery vehicle and a smaller truck is unavailable, Clients will be asked to pick up the order. If the Client does not pick up the order within 15 days, storage fees of $100 per month per each 1000 board feet will apply.

8.         TRANSFER OF TITLE – RISK OF LOSS – INSURANCE

DELIVERY TERMS ARE FOB E&K’S FACILITY. The delivery of the order by E&K to the freight carrier constitutes a legal transfer by E&K to Client of all title, ownership, and possession of the products ordered. The risk of loss for the products shall pass to Client upon delivery of the order by E&K to the freight carrier. Client may purchase shipping insurance directly from the freight carrier and upon request E&K will obtain a quote as a courtesy to Client, but Client is solely responsible for selection and purchase of any insurance. E&K will arrange for shipping the ordered products with a commercial freight carrier as a courtesy; Client is also welcome to make its own shipping arrangements at Client’s option.  If Clients arranges its own shipping, Client must pay for the shipment separately, and shall make payment to the freight carrier directly. As a courtesy E&K can retrieve shipping quotes on a Client’s behalf, however the Client shall be fully and solely responsible for the shipping payment.

Delivery times are estimated and are not guaranteed. Shipping is subject to unavoidable delays caused by material shortages, strikes, accidents, or other causes beyond the control of E&K.

9.         LIMITATION OF LIABILITY

In no case shall E&K Vintage Wood Inc.,, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the service or any products procured from E&K Vintage Wood Inc., or for any other claim related in any way to your use of the service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content (or product) posted, transmitted, or otherwise made available via the service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law or the value of the order placed by the client, whichever is less.

10. INDEMNIFACATION

INDEMNIFICATION

You agree to indemnify, defend and hold harmless E&K Vintage Wood Inc., and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.

11. MISCELLANEOUS

This Agreement shall be governed by the laws of the State of California, without regard to its conflict of laws principles, and any dispute regarding this Agreement, and any other dispute by and between E&K and Client, shall be brought in the courts in and for the County of Los Angeles, State of California, to the personal jurisdiction of which Client and E&K hereby agree to submit. The parties to this Agreement hereby represent, by their signatures below or the signatures of their representatives, that they have the authority to enter into this Agreement and be fully bound by its terms.  This Agreement may be executed in one or more counterparts, which taken together shall constitute one document.  An electronic signature on this Agreement shall be treated for all purposes as an original signature.

If any term of this Agreement is to any extent illegal, otherwise invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.

The prevailing party in any dispute arising from or relating to this Agreement shall be entitled to an award of its reasonable attorney fees, court costs, and disbursements.