Terms of Sale

As the sole and exclusive warranty on the Trimstone® Sheets You are purchasing, Manufacturer warrants that the Trimstone® Sheets will comply with the specifications and/or drawings, if any, accompanying Your purchase order and that all materials and workmanship used in the manufacturing of the Trimstone® Sheets will be free from defects for a period of ten (10) years from the date of Delivery (the “Limited Warranty” which term incorporates by reference the exclusions set forth in Paragraph 2 below and other limitations set forth in this Agreement).

Not withstanding the Limited Warranty or any other provision of this Agreement or any other agreement or principle of law or statute seemingly to the contrary, the Limited Warranty shall not be enforceable unless and until the entire purchase price of the Trimstone® Sheets has been paid to Manufacturer and the Limited Warranty does not include, and Manufacturer expressly disclaims any responsibility for the following:

• Abuse, misuse, failure to maintain or negligence of anyone other than the Manufacturer;
• Modifications or alteration of the Trimstone® Sheets without Manufacturer’s written consent, including penetrations, if any, in any part of the Trimstone® Sheets;
• Installation in any manner other than as specified by Manufacturer in writing; and
  Variations in color, grain, striation or texture of any stone (due to the fact they are naturally occurring, and Manufacturer has no control over same).

In addition to the Limited Warranty Exclusions contained in Paragraph 2 above, as a further limitation on the Limited Warranty, You acknowledge the following and agree not to make any claim for any matter described in the following:

• Natural Stone Disclaimer: Natural stone such as marble, limestone, travertine, and granite are products of nature. Their natural colors and veining will vary from one area to another within each piece. Shade variation, texture and markings are unique characteristics within each piece of natural stone. Certain natural stones contain and may develop additional hairline separations, which do not affect the quality or durability of the products. Some stone slabs are treated at the quarry with special resins, dyes and polishing techniques, of which Manufacturer may not have specific knowledge. When cut in half, a slab’s interior characteristics might be different than the exterior, as a result Manufacturer shall not be responsible for any variations in color, shade, veining, texture, markings, minor voids or hairline separations in the products. Trimstone® Sheets are a stone veneer product and is not recommended for use on floors which will be subject to heavy or concentrated loads or floors that might be ground and polished frequently. You agree that you will replace any material that You supplied and that was not able to be paneled successfully FOR ANY REASON whatsoever during the paneling process.

All Limited Warranty and other “Claims” (as defined below) must be submitted to Manufacturer in writing within thirty (30) days of the date any defect or other basis for a Claim is discovered or reasonably should have been discovered, or the Limited Warranty shall be void as to that Claim, it being understood that prompt notice is essential to Manufacturer’s ability to assess and potentially remedy any defect. Notice of Claims must be sent via nationally recognized overnight courier to Clement Zanzuri, President, Stoneworks, Inc., 6840 SW 81st Terrace, Miami, FL 33143.

Your rejection of Trimstone® Sheets delivered to You is only permitted for non-conforming goods. You accept all risk of damage and loss after the Trimstone® Sheets are delivered to the common carrier at Manufacturer’s warehouse or picked-up by You at that warehouse (“Delivery”). In order for You to reject non-conforming Trimstone® Sheets, You must give the Manufacturer written notice of same within ten (10) business days after Your receipt of the non-conforming Trimstone® Sheets, which time period is deemed by You to be commercially reasonable pursuant to Section 672.602, Florida Statutes.

EXCEPT AS SPECIFICALLY SET FORTH IN THE LIMITED WARRANTY, MANUFACTURER AND ALL OF ITS AFFILIATES HEREBY DISCLAIM AND YOU HEREBY WAIVE (FOR YOU AND ALL OF YOUR “BENEFICIARIES”) ANY AND ALL EXPRESS AND IMPLIED WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR USE AND OF MERCHANTABILITY. WITHOUT LIMITING THE SCOPE OF THE FOREGOING SENTENCE, THAT SENTENCE SHALL ALSO BE EFFECTIVE TO NEGATE ANY EXPRESS WARRANTIES CONTAINED IN ANY OTHER WRITTEN DOCUMENT OF ANY KIND, REGARDLESS OF THE PARTIES THERETO AND REGARDLESS WHETHER SUCH DOCUMENT WAS EXECUTED BEFORE, SIMULTANEOUSLY WITH OR AFTER THE DELIVERY OF THIS AGREEMENT, IT BEING SPECIFICALLY UNDERSTOOD THAT THE TERMS HEREOF MAY ONLY BE MODIFIED BY A WRITTEN DOCUMENT THAT EXPRESSLY AND SPECIFICALLY STATES THAT (I) IT IS INTENDED TO MODIFY THIS AGREEMENT, (II) IT WAS PREPARED PURSUANT TO THIS PARAGRPAH, AND (III) IS SIGNED BY THE PRESIDENT OF MANUFACTURER (AS NO OTHER OFFICER OR REPRESENTATIVE OF MANUFACTURE HAS THE AUTHORITY TO MODIFY THIS DISLAIMER). WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS PARAGRAPH BUT AS ADDITIONAL DISCLAIMERS AND WAIVERS BY YOU (FOR YOU AND YOUR BENEFICIARIES): (A) THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE FACE OF THIS AGREEMENT AND THE TRIMSTONE® SHEETS ARE BEING SOLD “AS IS” EXCEPT TO THE EXTENT OF THE LIMITED WARRANTY, AND (B) NEITHER MANUFACTURER NOR ANY OF ITS AFFILIATES SHALL BE LIABLE TO YOU OR YOUR BENEFICIARIES FOR ANY MATTERS RELATED TO OR ARISING OUT OF THIS AGREEMENT OR YOUR PURCHASE OF TRIMSTONE® SHEETS BASED ON ANY TORT OR OTHER EXTRA-CONTRACTUAL REMEDY OR THEORY (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND GROSS NEGLIGENCE, BUT EXCLUDING INTENTIONAL TORTS), IT BEING AGREED THAT THE LIMITED WARRANTY EXPRESSLY SET FORTH IN THIS AGREEMENT IS THE ONLY AVAILAIBLE REMEDY FOR ANY SUCH MATTERS.

MANUFACTURER HEREBY DISCLAIMS AND YOU (FOR YOU AND YOUR BENEFICIARIES) HEREBY WAIVE ANY RIGHT TO CLAIM OR RECOVER FROM MANUFACTURER OR ANY OF ITS AFFILIATES FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LIABILITY FOR PERSONAL INJURY, IT BEING SPECIFICALLY AGREED THAT THE SOLE OBLIGATION UNDER THE LIMITED WARRANTY OR OTHERWISE SHALL BE FOR THE MANUFACTURER TO REPLACE OR REPAIR THE TRIMSTONE® SHEETS AT THE MANUFACTURER’S SOLE ELECTION.

WITHOUT IN ANY WAY LIMITING THE EFFECT OF THE TWO PRECEDING PARAGRAPHS, YOU FURTHER AGREE THAT ANY DAMAGES FOR WHICH MANUFACTURER OR ANY OF ITS AFFILIATES SHALL BE FOUND LIABLE IN CONNECTION WITH OR ARISING OUT OF YOUR PURCHASE OR USE OF THE TRIMSTONE® SHEETS SHALL BE LIMITED TO THE PRICE ACTUALLY PAID BY YOU TO MANUFACTURE THE TRIMSTONE® SHEETS OUT OF WHICH THE CLAIM AROSE.

This Agreement and all matters regarding the Trimstone® Sheets shall be governed by the substantive laws of the State of Florida, conflict of law provisions notwithstanding. All disputes and claims arising out of or related to the Trimstone® Sheets, this Agreement, the Limited Warranty, any purchase order or proposal, payment due to Manufacturer, or any alleged failure of, defect in or deficiency of the Trimstone® Sheets (each a “Claim”) shall be governed exclusively by and subject to the following terms:

• All Claims are deemed forever barred and waived if the notice provisions contained in Paragraphs 4 and 5 above are not complied with, time being of the essence;
• No Claim may be pursued via litigation until You and Manufacturer have made a good faith effort to resolve the Claim via non-binding mediation before a mediator certified under Florida law, which mediation shall take place in Miami, Florida;
• Other than through mediation in accordance with the preceding paragraph, all Claims are to be resolved only by litigation in the courts of the State of Florida sitting in Miami-Dade County, Florida, it being agreed that all objections to venue in such forum are waived and all parties consent to personal jurisdiction in such courts;
• You and Manufacturer hereby waive any right they may have had to trial by jury;
• The prevailing party in any litigation involving a Claim is entitled to an award of attorneys’ fees and costs in all courts; and
• All Claims are deemed forever barred and waived if litigation thereon is not commenced within twelve (12) months of the date any defect or other basis for a Claim is discovered or reasonably should have been discovered, time being of the essence.

The terms, provisions, conditions and disclaimers contained in this Agreement are intended to inure to the benefit of, restrict and be binding upon You and any other person or entity in privity of contract with You or who uses or relies upon the use of the Trimstone® Sheets in any building, structure or project, including, but not limited to Your Affiliates, prime contractors, installers, general contractors, construction managers, design professionals and the owner(s) and tenant(s) of the building on or in which the Trimstone® Sheets are installed (each a “Beneficiary”).Without limiting anything in this Agreement, any Beneficiary or other person or entity that attempts to enforce the Limited Warranty against the Manufacturer necessarily, by making a demand on or Claim with regard to such Limited Warranty, adopts and agrees to all other terms of this Agreement. In order to advise all Beneficiaries of the existence of the Limited Warranty, their rights (if any) thereunder and the terms and restrictions of this Agreement, You agree to provide all such Beneficiaries with a copy of this Agreement prior to Your receipt of the Trimstone® Sheets. The words “You” and “Your” as used in this Agreement shall include all Beneficiaries. Notwithstanding the foregoing, after the Trimstone® Sheets are installed in or on a building, if that building is thereafter sold, the Limited Warranty shall automatically terminate as it is not intended to be transferable to subsequent owners of such building. Use of the word “sold” in the preceding sentence shall include a transfer of fee simple title to the building or land or to the sale of a controlling equity interest in the holder of such title.

This Agreement is intended to be posted on Manufacturer’s website and available to You and all other customers of Manufacturer. If posted on such website or physically incorporated into an actual written document signed by You and Manufacturer, then by purchasing any Trimstone® Sheets from Manufacturer and by Manufacturer’s sale to You of such product, You automatically agree to all terms and provisions of this Agreement just as if such terms and provisions had been incorporated into a printed contract that was signed by You and Manufacturer. This Agreement supersedes, controls over and replaces any conflicting terms in any purchase order, proposal, memorandum of understanding, agreement or contract of any kind between You and Manufacturer. The terms and provisions of this Agreement can only be voided, modified or superseded by a written agreement that (i) specifically references this Agreement, (ii) expressly states that it is intended to modified or supersede a specific term or provision of this Agreement, and (iii) is actually signed by Clement Zanzuri, as President of Manufacturer (no one else being authorized to do so). Under no circumstances shall any oral agreement (or modification of this Agreement) be deemed to exist or recognized between You and Manufacturer, nor shall any agreement or modification hereof arise by acquiescence, silence, custom and practice or course of dealing.

The reference to “affiliates” of Manufacturer includes its officers, directors, shareholders, employees, subsidiaries and other companies under common control with Manufacturer. Use of the word “affiliates” is not intended to imply that any such affiliates have any responsibility, liability or obligations related to the Trimstone® Sheets or the Limited Warranty. All orders of Trimstone® Sheets must be paid in full before shipment from Manufacturer’s facility in Miami, Florida, and are F.O.B. at such facility, with risk of losing passing upon delivery to the carrier at that location. You have the right to and are encouraged to inspect the Trimstone® Sheets prior to payment in full and its departure from Manufacturer’s facility. If any provision of this Agreement is deemed unenforceable, it shall not affect any other provision hereof. All time frames and deadlines (other than those solely for the payment of money) shall be extended to the extent delay is reasonably caused by circumstances, incidents, conditions or occurrences generally considered to be force majeure. Because Trimstone® Sheets are special order, Manufacturer has no obligation to mitigate damages upon Your failure to pay or other breach of contract.

As used in this paragraph, “Storage Fees” refers to One Hundred Dollars ($100.00) per crate of Trimstone® Sheets for each calendar month or portion thereof for which storage is provided by Manufacturer, all applicable to the following, without further notice or consent:

• If the Trimstone® Sheets You purchase are to be picked up by or for You (and not shipped), and are not picked up within thirty (30) days of the scheduled pick-up date, Manufacturer will charge and You agree to pay Storage Fees to the Manufacturer.
• If the Trimstone® Sheets You purchase are to be shipped, and You instruct the Manufacturer not to ship for more than thirty (30) days after You are first notified by the Manufacturer that Your Trimstone® Sheets are ready to be shipped, Manufacturer will charge and You agree to pay Storage Fees to the Manufacturer.
• If the Trimstone® Sheets You purchase are stored by the Manufacture pursuant to sections (a) or (b) of this paragraph for more than one hundred eighty (180) days, then Manufacturer shall have the right (but not the obligation) to dispose of the product and pursue collection of all sums due from You in full.