Terms and Conditions of Sale
1. GENERAL
All orders for products and services (“Product(s)”) received by SiteOne Landscape Supply, LLC or any of its subsidiaries or affiliates (“SiteOne”) as submitted by the customer agreeing to these terms (the “Customer””), are subject to these Terms and Conditions of Sale (“Terms”), the terms and conditions on the SiteOne Order Acknowledgment (as defined herein), and any special terms and conditions specified on Product price sheets, each of the foregoing as provided in the unmodified form from SiteOne.
2. ACCEPTANCE AND SUBMISSION
Orders are deemed accepted by SiteOne when SiteOne provides an acknowledgement of such order after Customer has placed the respective order (the “Order Acknowledgement”). The Order Acknowledgement will be provided by SiteOne upon receipt of the Customer’s purchase order or response to SiteOne’s quote if SiteOne accepts the respective order. Customer will also receive an email order confirmation, receipt, and “ready for pick-up/delivery” email when the respective order is ready. Once an Order Acknowledgement has been provided by SiteOne, all such accepted orders are non-cancellable and non-refundable. Prices and delivery dates stated on any Order Acknowledgment shall prevail in the event of a discrepancy between it and the Customer’s written order; provided that, Customer acknowledges and agrees that any such delivery dates are estimates only and will not be binding upon SiteOne. Customer acknowledges and agrees that some orders may require a deposit or downpayment before SiteOne will process the order. The respective deposit amount will be collected at the time of order submission. If the Customer cancels the respective order, SiteOne may elect, in its sole discretion, to retain the deposit amount in its entirety, and Customer acknowledges and agrees that, if SiteOne elects to retain the deposit, the respective deposit amount will be forfeited and non-refundable. If SiteOne cancels the order, SiteOne will refund the deposit amount to Customer. SiteOne determines the amount of the deposit at the time of purchase, which may range from ten percent (10%) to one hundred percent (100%) of the respective order total. Orders may be placed through SiteOne’s customer account portal (the “Portal”), whereby Customer may be required to create a login and password to access such Portal and place orders therein. Customer represents and warrants that Customer will use a unique username and password to access the Portal. Customer is responsible for keeping its username and password confidential and is responsible for all uses of Customer’s account. To maintain account security, SiteOne recommends that Customer changes its password regularly and whenever Customer reasonably believes that its password may have been compromised. Customer must immediately notify SiteOne of any unauthorized access to Customer’s account, or if Customer suspects that its account has been compromised. SiteOne will not manage or have access to Customer’s password, so SiteOne is unable to retrieve the password if misplaced. Customer agrees that it is responsible for any misuse of its account, even if Customer is unaware of the misuse. Customer may also be liable to us or third parties for any misuse of the Portal through its account. Customer may not use anyone else’s account unless Customer has obtained such party or individual’s prior, written consent. For the sake of clarity, Customer may also place orders as a guest without creating an account.
3. PROMOTIONAL OFFERINGS
From time to time, SiteOne may offer certain promotional purchases, flash sales or holiday sales (the “Promotional Offerings”). Customer acknowledges and agrees that any such Promotional Offerings are orders only and are not considered a sale or completed transaction unless customer pays for such Promotional Offerings at the time the order is placed by using a valid credit card. Promotional Offerings are subject to a close-by date, to be selected by SiteOne in its sole discretion, which is the date by which the Promotional Offerings must be paid for in full by customer, otherwise customer will be responsible for remitting the full, non-discounted purchase price for the respective Products. For example, if a Black Friday sale offers a 25% discount and has a close-by date of December 15th, all Promotional Offerings must be paid for in full by customer by December 15th, or the customer will forfeit the respective 25% discount and customer will be responsible for the entire purchase price of the respective Products and the Promotional Offering will be removed and void. Promotional Offerings are available for online purchase only. SiteOne may discontinue or revise Promotional Offerings at any time without notice.
4. PRICES
The Customer shall pay the prices quoted by SiteOne or associated with the listed Product, all taxes (sales, use, excise, and/or others incurred through commercial transaction), other charges stated in any special terms and conditions for a specific Product, and where applicable, all charges for Customer-requested special packaging, design and specifications. Prices are subject to adjustment without notice to conform to prices in effect on the date of order shipment, and apply only to the specific Products ordered. All of the pricing provided in SiteOne’s quote and/or Order Acknowledgment is based on the assumption that SiteOne’s raw material (including compounds), energy, labor, and transportation costs (including tariffs/duties) will remain relatively stable for the duration of the shipments. SiteOne reserves the right to modify prices for accepted purchase orders upon a material increase in any of such costs and the parties agree to negotiate in good faith any such price increases.
5. PAYMENT
Unless specific credit terms are approved by SiteOne, all payments must be made in advance of shipment of the Products. If credit is approved, unless otherwise specified in the Order Acknowledgment, payment shall be due thirty (30) days from the date of invoice. A FINANCE CHARGE OF THE LESSER OF 1.5% PER MONTH OR THAT WHICH IS PERMITTED BY APPLICABLE LAW WILL BE ADDED TO THE UNPAID BALANCE ON ALL ACCOUNTS NOT PAID IN FULL ON OR BEFORE THE DUE DATE. THE MAXIMUM FINANCE CHARGE IS EQUIVALENT TO AN ANNUAL PERCENTAGE RATE OF 18%. Accounts not paid in full according to established credit or payment terms shall be considered in default. SiteOne shall have and retain a purchase money security interest (“PMSI”) in all Products sold to Customer, and in all proceeds from the disposition thereof, to secure payment for the purchase price for such Products, and Customer shall cooperate with and assist SiteOne in perfecting such security interest. SiteOne may, at its discretion, reclaim the Products under PMSI, lien or take any other action that may be permitted under applicable law. Customer grants SiteOne the right to collect all accounts receivables that occur from Customer’s sale of such Products. Customer shall furnish, upon demand by SiteOne, copies of all invoices covering sales of such Products so that SiteOne may notify the purchaser thereof of this assignment. Credit approval is subject to revocation in SiteOne’s sole discretion, including upon discovery of changes in the Customer’s financial condition, previously undisclosed information, or other reasons which SiteOne, in good faith, feels adversely affect the credit agreement. Stoppage in transit is authorized. Upon revocation of credit, the terms of sale revert to payments made in advance.
6. DELIVERY AND SHIPMENT
Transportation terms and charges shall be according to the special terms and conditions stated on price sheets or SiteOne quotes provided in writing by SiteOne for each particular Product. Delivery dates specified on the Order Acknowledgment are approximate only. SiteOne’s responsibility for transportation shall be limited to shipping Products to Customer. All costs of delivery are the responsibility of Customer and are in addition to the fees due for the Product. Customer is responsible for making independent arrangements and for contacting Customer’s sales representative for a delivery quotation. Due to circumstances beyond SiteOne’s control, many jobsite deliveries are not able to be serviced directly by SiteOne, and LTL orders on fragile items may not be accepted. Any excess costs for transportation, including special handling costs, will be charged to the Customer, in addition to above-mentioned prices. Risk of loss, damage, and title transfers pursuant to the INCOTERMS (2010) or shipping terms applicable for each Product shipment, which may be set forth in the Order Acknowledgement; provided, if the foregoing are not determinable, then risk of loss, damage, and title transfer once tendered by SiteOne to the applicable carrier. Other than any express, limited warranty claims, where applicable and offered, Customer may have related to a Product, all Customer acceptance claims must be received by SiteOne in writing, within five (5) days from date of delivery. Delay or refusal to accept delivery without just cause is deemed a default by the Customer of these Terms.
7. QUANTITY TOLERANCE
Quantities shall be subject to standard industry shipping tolerances or other special terms and conditions of sale for that Product. The quantity stated on invoice will be final quantity shipped. Customer must state any shortage in writing on the carrier’s freight receipt at time of delivery. Customer claims for shipping shortages must be received by SiteOne in writing, within ten (10) business days from date of invoice.
8. CANCELLATION
Except as otherwise approved by SiteOne in its sole discretion, all orders for Products are non-cancelable, non-refundable. Customer shall pay a restocking and cancellation fee as a percentage of the order price for each Product. Products completed or in process at time of requested cancellation are subject to a cancellation charge of 100% minus the scrap value of the Products as solely determined by SiteOne.
9. RETURNS
SiteOne’s return policy is available at https://www.siteone.com/en/returns and is incorporated herein by reference. Please review the linked-to return policy for all information on in-store and online returns.
10. ERROR, CONTRADICTION OF TERMS, ADJUDICATION
SiteOne reserves the right to correct any clerical or stenographic error made in the preparation of Order Acknowledgments and/or invoices. In the event any of these Terms are declared invalid by a court of competent jurisdiction, all other terms and conditions contained herein shall remain in full force and effect.
11. DISCLAIMERS
(a) Customer understands and acknowledges that, except with respect to SiteOne private labeled products, SiteOne only sells third party manufactured Products and that SiteOne does not manufacture any of the Products provided hereunder. Any warranties offered by SiteOne with respect to the private labeled products will be included within the documentation for the respective private labeled products and such warranties are the sole and exclusive warranties offered by SiteOne with respect to such private labeled products. Accordingly, SiteOne does not make any warranties regarding, and shall have no obligation with respect to, any Products purchased by Customer hereunder, including without limitation, those Products that: (i) are not manufactured by SiteOne; (ii) have been repaired or altered by someone other than SiteOne; (iii) have been subject to misuse, abuse, neglect, intentional misconduct, accident, Customer or third party negligence, unauthorized modification or alteration, use beyond rated capacity, a force majeure event, or improper, or a lack of, maintenance; (iii) are comprised of materials provided by, or designed pursuant to instructions from, Customer; (iv) have failed due to ordinary wear and tear; or (v) have been exposed to adverse operating or environmental conditions. Third-party Products are warranted only to the extent of the original manufacturer’s warranty, if any, and to the extent such manufacturer permits SiteOne to pass any third-party warranty through to Customer.
(b) Customer is solely responsible for determining the fitness and suitability of Products for the use contemplated by Customer. Customer shall ensure that (i) the Products are used only for the purposes and in the manner for which they were designed and supplied, (ii) all persons likely to use or come into contact with the Products receive appropriate training and copies of applicable instructions and documentation supplied by SiteOne, (iii) all third parties who use or may be affected by or rely upon the Products are given full and clear warning of any hazards associated with them or limitations of their effectiveness and that safe working practices are adopted and complied with, (iv) any warning notices displayed on the Products are not removed or obscured, (v) any third party to whom the Products are supplied agrees not to remove or obscure such warning notices. Customer assumes all responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of Products, either alone or in combination with other Products or components.
(c) THE WARRANTIES OFFERED BY SITEONE FOR THE PRIVATE LABELED PRODUCTS AND THE WARRANTIES OFFERED BY THE APPLICABLE THIRD PARTY MANUFACTURER FOR ALL OTHER PRODUCTS, WHERE APPLICABLE, ARE THE SOLE AND EXCLUSIVE WARRANTIES WITH RESPECT TO PRODUCTS, AND ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AGAINST INFRINGEMENT, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, USAGE OF TRADE, AND FITNESS FOR A PARTICULAR PURPOSE. Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to Customer if prohibited by applicable law. THE REMEDIES PROVIDED IN THIS SECTION 11 ARE CUSTOMER’S SOLE REMEDIES FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO PRODUCTS AND MUST BE MADE BY CUSTOMER DIRECTLY WITH THE THIRD PARTY MANUFACTURER, AND NOT SITEONE.
(d) CUSTOMER ACKNOWLEDGES AND AGREES THAT FOR HARDSCAPE SALES, INCLUDING WITHOUT LIMITATION, PRODUCTS CONTAINING NATURAL STONE, SUCH PRODUCTS VARY AND MAY BE DIFFERENT IN SIZE, SHAPE, COLOR AND OTHER AESTHETIC FEATURES, INCLUDING DEVIATING FROM THE PRODUCT IMAGE FEATURED. CUSTOMER ACKNOWLEDGES AND AGREES THAT SITEONE IS UNABLE TO CONTROL ANY DISCREPANCIES IN HARDSCAPE PRODUCTS AND THAT ALL SUCH PRODUCTS ARE PROVIDED AS-IS, AND MAY VARY FROM THE PRODUCT IMAGE FEATURED IN THE STORE AND/OR ON SITEONE’S WEBSITE. FURTHER, CUSTOMER ACKNOWLEDGES AND AGREES THAT NATURAL STONE IS A RELATIVELY HARD, NATURALLY FORMED MINERAL OR PETRIFIED MATTER, PRODUCED IN NATURE. THEREFORE, CONSIDERABLE VARIATIONS INCLUDING, BUT NOT LIMITED TO, COLOR, TEXTURE, SIZE, AND CLEFT WILL OCCUR IN NATURAL STONE. SAMPLES, SAMPLE PANELS, BROCHURES, PHOTOGRAPHS, COMPUTER-GENERATED PICTURES, AND ITEMS VIEWED ON THE INTERNET ARE PROVIDED FOR CONVENIENCE ONLY, AND MAY BE, IN SOME MEASURE, DIFFERENT FROM THE STONE THAT CUSTOMER ACTUALLY RECEIVES. LABORATORY TESTS, IF CONDUCTED, ARE PERFORMED ON SMALL SAMPLES AND CANNOT BE TOTALLY ACCURATE BECAUSE OF THE LIMITED SCALE OF THE TESTS. CUSTOMER MAY NOT RETURN THE HARDSCAPE PRODUCTS DUE TO ANY DEVIATION IN SIZE, COLOR AND/OR SHAPE. NATURAL STONE PRODUCTS ARE PROVIDED TO CUSTOMER “AS-IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL NATURAL STONE IS SOLD AS A RAW MATERIAL AND IS NOT SOLD AS AN INSTALLED PRODUCT. LICENSED INSTALLERS AND COMPANIES THAT DESIGN INSTALLATION SYSTEMS WILL WARRANTY INSTALLATIONS AS THEY SEE FIT AND CUSTOMER ACKNOWLEDGES AND AGREES THAT SITEONE DOES NOT MAKE ANY WARRANTIES REGARDING INSTALLATION OF SUCH PRODUCTS. SITEONE SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY LOSS RESULTING FROM OR ARISING OUT OF ANY THIRD PARTY INSTALLATION PROVIDERS. ACID AND/OR CHEMICAL SEALERS AND CLEANERS ARE NOT RECOMMENDED BECAUSE OF THE INABILITY OF THE CUSTOMER TO CONTROL USE. CUSTOMER ACCEPTS ALL RISKS RESULTING THEREFROM. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER WILL CONSULT THE APPLICABLE MANUFACTURER FOR DETAILS ON THE USE OF SUCH A PRODUCT. THIS DISCLAIMER INCLUDES WITHOUT LIMITATION, ALL ICE MELT PRODUCTS. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER WILL USE SAFETY GLASSES AND GLOVES TO PROTECT CUSTOMER’S EYES HANDS WHEN CUTTING AND TRIMMING STONE. CUSTOMER ACKNOWLEDGES AND AGREES THAT CLOTHING THAT COVERS ALL EXPOSED SKIN SHOULD BE WORN WHEN WORKING WITH SUCH PRODUCTS. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT DRY SAWING NATURAL STONE IS NOT RECOMMENDED SINCE THE DUST MAY CONTAIN CRYSTALLINE SILICA WHICH MAY BE A POTENTIAL HEALTH HAZARD AND THAT AS SUCH, USE OF A WET SAW IS RECOMMENDED.
12. INDEMNITY AND LIMITATION OF DAMAGES
(a) Customer shall defend, indemnify and hold harmless SiteOne, its third party suppliers, and their respective officers, directors, employees, subcontractors and agents (each individually, an "Indemnified Party") from and against any and all claims, suits, liabilities, damages, settlements, charges, taxes and any other losses or expenses (including reasonable attorneys’ fees) (collectively "Claims") for physical injury to, illness or death of, any third party regardless of status and damage to or destruction of any tangible property which the third party may sustain or incur, to the extent such Claims relate to or arise out of the Products; except for such Claims relating to or arising out of a final judgment of gross negligence or willful misconduct of the Indemnified Party. In any action, suit or proceeding brought against an Indemnified Party by reason of any such claim as specified above, Customer will defend such action, suit or proceeding by counsel of its choice, at the sole expense of Customer. Indemnified Party will provide Customer with written notice of the claim. Customer will not settle any Claims without Indemnified Party’s prior, written consent to settlement.
(B) TO THE FULLEST EXTENT PERMITTED BY LAW, SITEONE SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, DELAY/LIQUIDATED, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, THE LOSS OF PROFITS OR REVENUE, LOSS OF USE OF ANY EQUIPMENT, PRODUCT VARIATIONS, INABILITY TO INSTALL PRODUCTS AS INTENDED, DOWN TIME COSTS, LOSS OF OPPORTUNITY, LOSS OF GOODWILL, COST OF PURCHASED OR REPLACEMENT PRODUCTS, OR CLAIMS OF CUSTOMERS OF ANY THIRD PARTY FOR SUCH DAMAGES.
(C) TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SITEONE’S TOTAL, AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND/OR PRODUCTS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNT PAID BY CUSTOMER FOR THE APPLICABLE PRODUCTS UNDER THE APPLICABLE ORDER SUBJECT TO THE CLAIM AND PURCHASED IN THREE (3) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
13. CHOICE OF LAW; VENUE
These Terms and the sale of Products are governed and interpreted by the laws and regulations of the State of Georgia, U.S.A. Each party hereby (a) submits to personal jurisdiction in the State of Georgia for the enforcement of these Terms, and (b) waives any and all personal rights under the law of any state to object to jurisdiction within the State of Georgia, for the purposes of litigation to enforce these Terms. The Superior Court of Fulton County, Georgia, or the nearest federal court located thereto, shall have the exclusive jurisdiction and venue over all disputes arising under these Terms. The application of the United Nations Convention on Contracts for the International Sale of Goods does not apply.
14. CALIFORNIA PURCHASES
The following is a notice to residents of California regarding Proposition 65: California’s Proposition 65 entitles California consumers to special warnings for products that contain chemicals known to the State of California to cause cancer and birth defects or other reproductive harm if those products expose consumers to such chemicals above certain threshold levels. WARNING: Some Products offered by SiteOne from time to time may contain chemicals that are known to the State of California to cause cancer and birth defects or other reproductive harm and may be included on the Prop 65 chemical list. If Customer needs additional information to make purchase of Products, please contact SiteOne at 1-800-SITEONE and SiteOne will respond as soon as possible to provide Customer with the information we possess about the materials within the Products, or will direct Customer to the applicable third party manufacturer. For more information on Proposition 65, please visit http://oehha.ca.gov/prop65/background/p65plain.html. To learn more on lead-related FAQs, visit http://www.atsdr.cdc.gov/toxfaqs/tf.asp?id=93&tid=22. The California Transparency in Supply Chains Act of 2010 requires retailers and manufacturers doing business in California with sales of a certain amount to disclose measures used to track possible slavery and human trafficking in their supply chains.
15. MISCELLANEOUS
(a) SiteOne shall not be liable for failure to meet its obligations set forth in the Terms if such failure is a result of circumstances beyond SiteOne’s control.
(b) Any designs, manufacturing drawings or other information submitted to Customer remain the exclusive property of SiteOne or the applicable third party manufacturer. Customer shall not, without SiteOne’s prior written consent, copy such information or disclose such information to a third party.
(c) These Terms and the Order Acknowledgement constitute the entire agreement between the parties and supersede all other communications between the parties relating to the subject matter of these Terms. SiteOne’s quotations are offers that may only be accepted in full. No conditions, usage or trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, reject, or supplement these Terms or Order Acknowledgement shall be binding unless made in writing and signed by both parties, expressly and specifically referencing these Terms, and no modification or objection shall be caused by SiteOne’s receipt, acknowledgment, or acceptance of purchase orders, shipping instruction forms, or other documentation containing different or additional terms to those set forth herein.
(d) Customer shall comply with applicable laws and regulations relating to anti-corruption, including, without limitation, (i) the United States Foreign Corrupt Practices Act (FCPA) (15 U.S.C. §§78dd-1, et. seq.) irrespective of the place of performance, and (ii) laws and regulations implementing the Organization for Economic Cooperation and Development’s Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the U.N. Convention Against Corruption, and the Inter-American Convention Against Corruption in Customer’s country or any country where delivery of Products will occur.
(e) Customer acknowledges that this order and the performance thereof are subject to compliance with any and all applicable United States laws, regulations, or orders. Customer agrees to comply with all such laws, regulations, and orders, including, if applicable, all requirements of the International Traffic in Arms Regulations and/or the Export Administration Act, as may be amended. Customer further agrees that if the export laws are applicable, it will not disclose or re-export any technical data received under this order to any countries for which the United States government requires an export license or other supporting documentation at the time of export or transfer, unless Customer has obtained prior written authorization from the United States Office of Export Control or other authority responsible for such matters.
(f) No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver is expressed in a writing signed by both parties, specifically referencing these Terms.
(g) Nothing in these Terms confers upon any person other than SiteOne and Customer any right or remedy under or by reason of these Terms. Nothing in these Terms shall be deemed to convey to Customer any title to or ownership in any of the intellectual property contained within Products and/or the Portal, in whole or in part, which are reserved and retained exclusively by SiteOne and its licensors.
(h) Customer acknowledges and agrees that these Terms may be executed electronically. Accordingly, Customer agrees that by signing these Terms electronically, all electronic signatures are the legal equivalent of Customer’s manual/handwritten signature and Customer consents to be legally bound to these Terms, pursuant to the Uniform Electronic Transactions Act (UETA) and the ESIGN Act, which provide that electronic signatures the same legal status as handwritten signatures.