Terms and Conditions of Sales and Purchase
For your guidance, Pendulum Consulting Inc., doing business as Skylight Depot, and any subsidiary or affiliate of ours, which shall hereinafter be referred to as (“Skylight Depot”), has set out in this document our basic terms and conditions (“Terms”) for the sale of our skylight products (“Products”) to you. If you provide us with any pre-printed terms and conditions that appear on any purchase order or other form document, they will be of no force or effect unless we agree expressly in writing to modify these Terms or to state these Terms will not apply. These Terms are deemed to be a part of all other documents exchanged between us relating to the sale and purchase of our Products, whether electronic or in writing, including without limitation all quotations, purchase orders, releases, acknowledgments, packing slips and invoices.
1. APPLICATION OF TERMS. Our acknowledgement and acceptance of your order for our Products are expressly limited to and made conditional upon your acceptance of these Terms and any quotation we previously furnished to you. We deem material, object to, and reject any of your terms and conditions additional to or different from these Terms that we have not expressly agreed to in a separate writing (except additional provisions specifying quantity, description of the products ordered and shipping instructions). We will deem you to have waived any objection to these Terms in respect to any order for Products once you check the ‘I Agree to Skylight Depot’s Terms and Conditions of Sale’ box upon completing your order. You will, in any event, be deemed to have agreed to these Terms if you accept any portion of the Products you order from us.
You acknowledge that the prices we charge are predicated on the enforceability of these Terms, that the prices would be substantially higher if these Terms did not apply, and that you accept these Terms in exchange for such lower prices.
2. DISCLAIMER OF WARRANTY.
a. SKYLIGHTS AND/OR REPLACEMENT DOMES ARE NOT INTENDED TO WITHSTAND HUMAN IMPACT OR FALLING OBJECTS AND SHOULD NOT BE WALKED ON.
b. DO NOT USE PRODUCTS THAT CONTAIN AMMONIA OR PETROLEUM TO CLEAN YOUR PRODUCTS, THEY WILL DAMAGE PLASTIC.
c. Less-Than-Truckload Shipments, which is also referred to as “less than load” and defined as relatively small freight that is less than a full truckload, on pallets, need to be inspected and, if damaged, marked “received damaged” at time of acceptance. As to all other orders, you must inspect our Products prior to installation for any failure to conform to the Product specifications and promptly notify us of any such nonconformance. YOUR FAILURE TO DISCOVER AND REPORT ANY NONCONFORMITY PRIOR TO INSTALLATION OF THE PRODUCTS WILL CONSTITUTE A FULL AND COMPLETE WAIVER OF ANY CLAIM BY YOU FOR NONCONFORMANCE. We may require a reasonable opportunity to inspect the Product and confirm the nonconformity.
d. We do not manufacture or control all of the Products offered on SkylightDepot.com (our “Site”). The availability of Products through our Site does not indicate an affiliation with or endorsement of any Product or manufacturer. Accordingly, WE DO NOT PROVIDE ANY WARRANTIES WITH RESPECT TO THE PRODUCTS OFFERED ON OUR SITE. However, the Products offered on our Site are covered by the manufacturer's warranty as summarized in the Product's description on our Site and included with the Product. To obtain warranty service for defective Products, please follow the instructions included in the manufacturer's warranty.
e. ALL PRODUCTS OFFERED ON OUR SITE ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF FITNESS FOR A PARTICULAR USE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD-PARTY; WHETHER EXPRESS, IMPLIED OR STATUTORY, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
f. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU. SKYLIGHT DEPOT’S LIABILITY WITH RESPECT TO ANY CLAIM BY YOU OR ANY THIRD-PARTY ARISING OUT OF OR IN ANY WAY RELATING TO ANY PRODUCT SOLD BY SKYLIGHT DEPOT TO YOU (INCLUDING, WITHOUT LIMITATION SUCH PRODUCT’S SALE, USE, FITNESS FOR A PARTICULAR PURPOSE OR TRANSPORTATION) YOUR SOLE AND EXCLUSIVE REMEDY AGAINST US FOR NONCONFORMING PRODUCT WILL BE LIMITED, AT OUR OPTION, TO OUR REPAIR OR REPLACEMENT OF ANY NONCONFORMING PRODUCT FOR WHICH YOU MAKE A CLAIM OR OUR ISSUANCE TO YOU OF A CREDIT FOR THE NONCONFORMING PRODUCT IN ACCORDANCE WITH ANY INSTRUCTIONS WE HAVE GIVEN YOU FOR THE RETURN OF THE PRODUCT OR OTHERWISE AND SUCH CLAIM MUST BE SUBMITTED TO SKYLIGHT DEPOT WITHIN THREE (3) DAYS OF DELIVERY DATE OF SUCH PRODUCT. IN NO EVENT WILL WE BE RESPONSIBLE FOR LABOR OR COST OF LABOR FOR REMOVAL OR INSTALLATION OF ANY PRODUCT. THIS EXCLUSIVE REMEDY WILL NOT BE DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE SO LONG AS WE ARE WILLING AND ABLE TO REPAIR OR REPLACE THE NONCONFORMING PRODUCT, AND IN ANY EVENT, OUR LIABILITY FOR ANY DAMAGES DUE YOU WILL BE LIMITED TO THE PURCHASE PRICE OF THE NONCONFORMING PRODUCTS. SKYLIGHT DEPOT SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD-PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION LOST REVENUES AND PROFITS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR OTHER LOSSES OF YOURS OR ANY THIRD-PARTY ARISING OUT OF OR IN ANY WAY RELATING TO THE SALE, USE OR TRANSPORTATION OF SUCH PRODUCT. THE RIGHT TO RECOVER DAMAGES WITHIN THE LIMITATION SPECIFIED IS YOUR EXCLUSIVE REMEDY.
g. YOU AFFIRM THAT WE SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY BREACH OF WARRANTY CLAIMS OR FOR ANY DAMAGES ARISING OUT OF THE MANUFACTURER'S FAILURE TO HONOR ITS WARRANTY OBLIGATIONS TO YOU.
h. WE WILL NOT BE LIABLE FOR ANY LOSS, DAMAGE, OR INJURY RESULTING FROM DELAY IN DELIVERY OF THE PRODUCTS OR ANY FAILURE TO PERFORM DUE TO CIRCUMSTANCES BEYOND OUR CONTROL. OUR MAXIMUM LIABILITY, IF ANY, FOR ALL DAMAGES, INCLUDING WITHOUT LIMITATION CONTRACT DAMAGES AND DAMAGES FOR INJURIES TO PERSONS OR PROPERTY, WHETHER ARISING FROM OUR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT WITH RESPECT TO THE PRODUCTS IS LIMITED TO AN AMOUNT NOT TO EXCEED OUR PRICES CHARGED FOR THE PRODUCTS.
3. SUITABILITY AND INDEMNIFICATION. You are solely responsible for determining the specs, design and performance of Products purchased from Skylight Depot, including the suitability of Products for your intended use. You are responsible for determining any applicable building codes or other relevant local, state or federal ordinances or statutes. You agree that you have made your own independent determination of suitability of the Products for your intended use without reliance on Skylight Depot. You shall indemnify, defend and hold harmless Skylight Depot from and against all claims, losses, damages, attorneys’ fees, expert fees and costs and other expenses arising from any claim or contention that the Products specified, designed or selected by you and sold by Skylight Depot are defective or deficient in specification, design, performance or suitability for your intended use.
4. DEALER PRODUCT STATEMENTS. You have no authority to bind or assume any obligation on behalf of Skylight Depot in any way, including without limitation, any warranty, representation, advertising claim or promise related in any way to the Products. You shall defend, indemnify and hold harmless Skylight Depot from all claims, demands, damages, losses, expenses, costs, penalties, fines or attorneys’ fees, suits, proceedings or liabilities of any kind arising out of any warranty, representation, advertising claim or promise made by you or your agents to anyone relating in any way to the Products without our advance express written consent.
5. ORDERS. To confirm and place your order, you must read these Terms that will be linked to your order confirmation email, which you will receive from us, and by clicking through to the website using the link provided by us in your order confirmation email you acknowledge your acceptance of these Terms as well as confirm and place your order with Skylight Depot. You will accept responsibility for errors if you fail to notify us of any discrepancies immediately upon receipt of the order confirmation email from us, and in any event prior to commencement of production of your order.
6. PRICES, TERMS AND SHIPMENT. You will pay the prices for our Products in effect at the time of sale, unless we otherwise agree in writing. No cash discount is allowed unless we otherwise specify to you in writing. You will not be entitled to any set offs or counterclaims unless we agree in writing. In addition to the prices specified, you agree to pay any applicable taxes or duties assessed in connection with any sale and purchase of Products as well as charges for shipping and handling. Skylight Depot strives to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences. Prices are F.O.B. shipping point. Delivery of the Products shall occur and title and risk of loss of the Products will transfer to you at the F.O.B. point, to wit: (i) upon shipment of Products from the F.O.B. shipping point, or (ii) upon tender of the Products for unloading at your designated delivery destination, including without limitation your locations and third-party job sites. All prices, discounts, and promotions posted on this Site are subject to change without notice. All prices stated on this website are in US Dollars (USD). We reserve the right to impose a surcharge(s) from time to time upon thirty days notice when it is necessitated by fluctuating market prices for energy, which affect the price of our Products and delivery costs incurred by us to manufacture and deliver the Products. We shall retain, and you hereby grant to us a security interest in, any Products we ship to you until the full purchase price is paid by you. You agree that we may file a Uniform Commercial Code Financing Statement with respect to the Products we sell to you in order to protect our interest in such Products until you make payment in full.
7. SALES. All Sales are final at the agreed upon payment terms stated at the time of sale. Customers may choose to apply for special payment terms, but the approval of those terms are at the sole discretion of Skylight Depot. All necessary credit application paperwork and Arizona Department of Revenue Form 5000A State tax resale forms must be on file at Skylight Depot before orders ship or we will assess the current tax rate. We accept MasterCard, Visa Card, Discover and American Express. All online credit card orders are processed through a secure credit verification system and transactions are processed through a PCI compliant payment gateway.
8. QUOTATIONS, PURCHASE ORDERS, CONFIRMATION/ACKNOWLEDGEMENT OF ORDERS. Written quotes expire in fourteen (14) days unless otherwise specified. Verbal quotes expire on the day that it was made. Skylight Depot’s order confirmation/acknowledgement confirms that Skylight Depot has received your purchase order for Product, only, and is not acceptance of any terms.
9. LATE PAYMENTS/REBATES, ETC. All early payment discounts, allowances, rebates, and other programs (“Discounts”) are only applicable if your accounts (including those of your subsidiaries and affiliates) are current with Skylight Depot. If the accounts are not current, then any Discounts are considered not earned or applicable. Further, if at any time your account is not current with Skylight Depot (hereinafter a “Payment Default”), we shall, in addition to any and all other remedies available to us hereunder or otherwise, in our sole discretion, (i) terminate our dealer relationship with you upon written notice to you of such Payment Default and your failure to cure such Payment Default within ten (10) days from the date of such notice, and (ii) elect to not ship Products to you or accept any orders for additional Products. In addition, Discounts are not earned or applicable if the ratings issued by any agency, such as S&P, Moody's, or Fitch, relating to your company, parent, subsidiaries or affiliates are lower than investment grade quality, as determined by Skylight Depot in its sole discretion. Any money Skylight Depot owes to you, your subsidiaries and affiliates may be withheld or be used to satisfy any of the accounts or other obligations to Skylight Depot.
10. DELIVERY SCHEDULES. Shipment dates are estimates only. Skylight Depot shall have no liability if shipment is made after the estimated dates.
11. VARIATIONS IN QUANTITIES, SHORTAGES AND ALLOCATION. If deliveries are scheduled to be made by us over an extended number of shipments, each delivery may be separately invoiced and you shall pay each without regard to prior or subsequent deliveries. Delay in delivery will not relieve you of your obligation to accept and pay. You must make all claims for shortages within three (3) days of your receipt of shipment. We will not be responsible for any claim for shortage not reported within that period. In the event of a shortage or other contingency due to circumstances beyond our control or the control of our suppliers, we may allocate production and deliveries among our customers in such manner as we determine in our sole discretion. Delay in delivery of any Installment will not relieve you of your obligation to accept and pay for any Installment.
12. RETURNED GOODS. Unless otherwise agreed to by Skylight Depot on a case by case basis, you will need our approval, and issuance of a return authorization number (“RAN”), before returning any Products to us. All returns are subject to a twenty-five percent (25%) restocking charge, plus reconditioning and repacking costs if necessary. No specially-made, custom fabricated, non-“cataloged,” special-ordered, or cut-to-size item may be returned. If the Product has been altered by you in any way, it may not be returned, including that the protective film must be wholly attached and intact. Returns with our approval and RAN will not include a credit for any freight charges or your labor charges of any kind. If we supply a prepaid shipping label for return of merchandise we will deduct return shipping from any refund.
DO NOT USE PRODUCTS THAT CONTAIN AMMONIA OR PETROLEUM TO CLEAN YOUR PRODUCTS, THEY WILL DAMAGE PLASTIC. Any Product that has been exposed to ammonia or petroleum is not returnable.
13. PATENT OR TRADEMARK INFRINGEMENT. If the Products we sell to you are prepared for manufacture according to your specifications, you will defend, hold harmless and indemnify us and any subsidiary or affiliate of ours against any claims, liability, costs or attorneys’ fees incurred in relation to any claim for intellectual property infringement.
14. EXCUSE OF PERFORMANCE. We will not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond our control or the control of our suppliers, including but not limited to failure or delay in transportation, acts of any government, judicial action, labor disputes, fire, accident, acts of nature, shortage of labor, fuel, raw material or machinery or technical failure. If any contingency occurs, we may allocate production and deliveries among our customers in a manner we will determine in our sole discretion.
15. CONFIDENTIALITY. If your personnel visit our facilities or you otherwise receive any proprietary or confidential information from us, such information will be retained as confidential by you and not be used or disclosed to any third-party without our written consent.
16. CREDIT APPROVAL. You will furnish to us all financial information reasonably requested by us from time to time for the purpose of establishing or continuing your credit limit and terms. Shipment and delivery of Products will at all times be subject to the approval of our credit department and we may at any time decline to make any shipment or delivery except upon receipt of payment or upon terms and conditions or security satisfactory to us. You agree that we may file a Uniform Commercial Code Financing Statement with respect to the Products we sell to you in order to protect our interest in such Products until you make payment in full.
17. CANCELLATION. Our Products are manufactured to your order and so you may only cancel orders with our written approval and then only upon the conditions we impose on such cancellation. A twenty-five percent (25%) order cancellation fee shall be assessed. If Skylight Depot has already performed any function associated with the fulfillment of the order, Skylight Depot reserves the right to charge you for the full amount of the order.
18. DEFAULT. You may terminate an order for our default, wholly or in part, only if before we receive a written notice of termination, we have received notice in writing specifying such default, and such default is not excusable under any provision hereof, and we have not remedied such default within thirty (30) days after we received such notice of default. If we deliver nonconforming Products to you, you will have the rights set forth in these Terms, but such delivery will not be deemed a default for purposes of termination of the order.
If you are entitled to terminate an order for our default, you will be relieved of the obligation to pay for Product not delivered before the effective date of such termination. Our default will not subject us to liability, through payment by us, set off or otherwise, for any other damages, whether direct, consequential or incidental, and whether sought under theories of contract, tort, or any other theory under law or in equity.
19. ASSIGNMENT. You cannot assign any order or any claim against us arising directly or indirectly out of or in connection with an order without our prior written consent. We may assign, without consent, any order and these Terms to any subsidiary or affiliate of ours or to an entity or person that requires all or substantially all of the business to which the order and these Terms relate.
20. PATENTS, INVENTIONS, TECHNICAL DATA. You do not and will not acquire ownership or any rights in our patents, inventions, technical data and/or other intellectual property (such as brands, trade names and copyrights) under these Terms and any order, regardless of when such patents, inventions, technical data and/or other intellectual property has been issued, conceived, generated or produced. We reserve all of our intellectual property and you will not reproduce or use it for any purpose whatsoever without our prior written permission.
21. INSTALLATION INDEMNIFICATION. Technical assistance and information, if any, we furnish to you in connection with the sale of our Products are furnished for your accommodation. You assume all liability for the proper application of such information, using your own technical expertise and know-how. You shall indemnify and hold us harmless from and against all liabilities, losses, claims, costs and expenses (including reasonable attorneys’ fees) related to any claim, investigation, litigation or proceeding (whether or not we are a party) arising out of your installation (or those providing installation on your behalf) of the Products or your selection of Products to meet any project specifications.
22. REMEDIES. Our rights and remedies set out in these Terms are cumulative and in addition to all other remedies provided by law or equity. We will be entitled to recover costs and attorneys’ fees in the enforcement or defense of any rights under these Terms or with respect to any transaction.
23. LATE CHARGES. We will be entitled to assess a late charge on all past due invoices or accounts, which shall include your dispute of Skylight Depot’s credit card charge, equal to 1.5% per month (18% per year); however, if a law that applies to such late charge only allows a lesser charge, the late charge will automatically be reduced to the maximum rate allowed by such law.
24. SETOFF. In addition to any right of setoff provided by law, all amounts due to you will be considered net of indebtedness and other obligations of you and your subsidiaries and affiliates to us. We may deduct such amounts without any other prior notice.
25. GOVERNING LAW AND FORUM. These Terms shall be construed, governed and enforced in accordance with the laws of the State of Arizona.
a. Except as otherwise provided herein and for Skylight Depot’s suits for non-payment, which are not subject to the binding mandatory arbitration clause, these Terms require that in the event that you and Skylight Depot cannot resolve a conflict, the matter shall be submitted to binding arbitration utilizing the following procedure:
i. You or Skylight Depot shall notify the other of its request for arbitration (“Notice of Arbitration”).
ii. You and Skylight Depot (individually as a “Party” or jointly as “Parties”) shall attempt, in good faith, to appoint a sole Arbitrator with offices in Tucson, Arizona. The Arbitrator so appointed shall be required to make his/her decision within thirty (30) days of appointment, and the decision of the Arbitrator shall be binding upon the Parties.
iii. In the event the Parties are unable to reach agreement on a sole Arbitrator within thirty (30) days following the Notice of Arbitration, then Skylight Depot shall appoint an Arbitrator with offices in Tucson, Arizona, and you shall appoint an Arbitrator with offices in Tucson, Arizona. The appointment of the Arbitrators shall occur within seven (7) days after the expiration of the thirty (30) day period to select an Arbitrator, or the Party failing to select an Arbitrator shall have waived its right to make such selection, and the Arbitrator selected by the other Party shall be the sole Arbitrator. Notice of selection of an Arbitrator shall be given pursuant to Section 29 of these Terms.
iv. The two Arbitrators so appointed shall attempt to agree on a resolution of the matter. In the event the two Arbitrators are unable to agree upon a resolution of the matter, a third Arbitrator from Tucson, Arizona, shall be appointed by a Court in accordance with A.R.S. § 12-3000, et. seq., and the decision of two of the three Arbitrators shall be the “decision” of the Arbitrators.
v. The Arbitrators so appointed shall be required to make their decision within thirty (30) days of appointment, and the decision of the Arbitrators shall be binding upon the Parties.
vi. All costs of Arbitration, including attorneys’ fees, shall be allocated against the Parties in the manner determined by the Arbitrator(s), in his/her/their decision. The decision of the Arbitrator(s) shall be binding and non-appealable and in the event a Party should subsequently initiate legal proceedings relating to the same on substantially similar issues, in whole or in part, the Arbitrator(s) decision shall be submitted to the Court and shall be the Judgment of the Court as to same or substantially similar issues.
b. In the event arbitration is not applicable, the venue of any legal proceedings shall be the courts of Pima County, Arizona. In the event any party shall commence any civil action in connection with this agreement, the substantially prevailing party in said civil action shall be awarded reasonable attorneys’ fees, court costs and other costs and expenses incidental thereto, in addition to all other relief, all of which shall be set by the judge and not by jury to which the substantially prevailing party may be entitled.
26. ENTIRE AGREEMENT. These Terms contain our entire agreement relating to the transaction covered by these Terms. These Terms may not be waived, changed, modified, extended or discharged orally but only by agreement in writing and signed by the authorized representative of the party against whom enforcement of any such waiver, change, modification, extension or discharge is sought.
27. SUCCESSORS AND ASSIGNS; ASSIGNMENT. The Terms shall be binding upon Skylight Depot and you and your successors and assigns; provided, however, that you shall not assign any of your rights hereunder without Skylight Depot’s prior written consent, which consent may be withheld in Skylight Depot’s sole discretion, and in the event of assignment, you shall remain responsible of for full performance of your obligations.
28. CAPTIONS. The captions of paragraphs contained in these Terms are for convenience of reference only, and they neither form a part of these Terms nor are they to be used in the construction or interpretation thereof.
29. NOTICES. Except as otherwise specified herein, notices required or permitted to be given hereunder shall be in writing and may be given in person or by United States mail, by local or nationwide delivery/courier service. Such notices and other communications shall be deemed to be given and received as follows: (i) upon actual receipt, if delivered personally; (ii) on the next business day, if delivered by overnight courier; or (iii) three (3) days following deposit in the mail, if delivered by mail postage prepaid, addressed to that party at his/her/their/its designated address. The designated address of a party shall be the address of that party shown below or such other address within the United States of America that any party from time to time may specify by written notice to the other parties at least fifteen (15) days prior to the effective date of such change, but no such notice of change shall be effective unless and until received by the other parties. Rejection or refusal to accept, or inability to deliver because of changed address or because no notice of changed address is given, shall be deemed to be receipt of any such notice.
To Skylight Depot: Address: PO Box 91017, Tucson, AZ 85752
30. THIRD-PARTY BENEFICIARIES. These Terms are for the sole benefit of you and Skylight Depot and no other person or entity shall be considered a third-party beneficiary hereof, nor shall any third-party have any right to enforce the provisions contained herein or utilize same as a defense in any legal proceeding which may presently exist or which may hereafter be brought.
31. SEVERABILITY. If any provision of these Terms is declared void or unenforceable, such provisions shall be deemed severed from these Terms and these Terms shall otherwise remain in full force and effect.
32. WAIVER. Failure of any party to exercise any right or remedy arising out of a breach of these Terms shall not be deemed a waiver of any right or remedy with respect to any subsequent or different breach or the continuance of any existing breach.
33. TIME IS OF THE ESSENCE. Time is of the essence of these Terms and each and every provision hereof.
34. CONFLICT. If any provision of these Terms conflicts with the laws of the State of Arizona, you unconditionally waive your right to the benefits of those laws, however, if the laws of the State of Arizona prevent you from waiving your rights, then the laws of the State of Arizona applies.
35. COMPLIANCE. Skylight Depot complies with applicable federal and other civil rights laws and does not discriminate, exclude people or treat them differently based on race, color, religion (creed), sex, gender identity or expression, sexual orientation, national origin (ancestry), age, disability, or any other status protected by applicable federal, state or local law.