1. Parties. These Terms and Conditions of Sale (“Terms”) are between Future Glass (“Seller”), and the business or individual (“Buyer”) that purchases a Future Glass branded product (“Product”) from Seller for the purpose of re-selling the Product to an end user customer (“Customer”). By placing an order for a Product from Seller, Buyer agrees to comply with and be bound by these Terms.

2. Applicability. These Terms apply to and govern all orders placed by Buyer and all purchases made by Buyer from Seller. These Terms shall prevail over any additional or inconsistent terms of Buyer’s purchase order or any other Buyer documents or communications. Additional or different terms and conditions purporting to alter or modify these Terms are expressly rejected by Seller and shall not be binding upon Seller. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.

3. Orders. No order is binding on Seller unless and until the order is accepted by Seller as evidenced by an order confirmation or other acknowledgment from Seller stating that the order has been accepted or will be fulfilled.

4. Prices. The prices for Products shall be as set forth online at futureglass.us. Seller reserves the right to change prices at any time without notice. The new price will apply to all orders received after the change in price. Orders placed and accepted by Seller before the price change will receive the price in effect before the change. Any mathematical, publishing, clerical, or other errors are not binding on Seller. Prices shown do not include any sales, excise, or other governmental tax or charge. Any such applicable taxes and charges will be added to the purchase price and paid by Buyer unless Buyer has provided Seller with an acceptable tax exemption certificate.

5. Payments. Buyer shall pay the full amount of the purchase at the time of placing the order, unless Buyer has a credit account in good standing with Seller. If Buyer has a credit account in good standing with Seller, Seller shall issue Buyer an invoice for amounts due pursuant to the terms of the credit account extended by Seller. Buyer shall pay the amount of the invoice in full within the time period specified for payment in the invoice, or if no time period is specified on the invoice, within thirty (30) days from the date of the invoice. If Buyer fails to pay any amount when due or to comply with any other terms applicable to Buyer, Seller may, in its sole discretion and in addition to all other remedies available to Seller, suspend or cancel all of Buyer’s pending orders, terminate all credit privileges, discontinue shipping any jobs in progress, and declare the entire unpaid balance owed by Buyer to Seller to be immediately due and payable. Notwithstanding the foregoing, all credit orders are subject to Seller’s continuing approval of Buyer’s credit. Seller, in its sole discretion, may suspend or cancel performance, or require different payment terms, including, but not limited to, cash on delivery or in advance of shipment. In addition, Seller may, in its discretion, require an advance deposit of up to 100% of the sales price for any specially-manufactured Products ordered by Buyer. All payments by Buyer shall be made in United States Dollars and be made via the payment method specified by Seller.

6. Late Payments and Returned Checks. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Returned checks are subject to a service charge in an amount not to exceed applicable law. Buyer shall reimburse Seller for all costs incurred in collecting any late payments or unpaid amounts, including, without limitation, attorneys’ fees.

7. Shipment. Seller will ship Products to Buyer using the shipping method and carrier selected by Seller. Seller will use its own shipping account to arrange for and pay for shipping products to Buyer; provided that Seller may, in its discretion, agree to use Buyer’s shipping account and/or carrier. Buyer shall reimburse Seller for the costs of shipping paid by Seller which may be added to the invoice or otherwise billed by Seller. Title and risk of loss shall pass to Buyer at the delivery location for Products shipped on Seller’s account and at the FOB Point for Products shipped on Buyer’s account. If Products are damaged during shipment on Seller’s account, Buyer shall notify Seller in writing of such damage within five (5) business days of delivery of the damaged Products to Buyer, in which case Seller shall in its discretion (a) replace the damaged Product(s) or (b) refund or credit the price of the damaged Product(s). Seller may allow Products to be picked up by Buyer at Seller’s location in its discretion. Partial shipments are permitted at Seller’s discretion. Delivery dates are only estimates and are not guaranteed.

8. Inspection. Buyer shall inspect the Products within five (5) business days of delivery or Buyer’s pickup at Seller’s location, as applicable (“Inspection Period”). Buyer will be deemed to have accepted the Products unless it notifies Seller in writing during the Inspection Period of any (a) Products damaged during shipping on Seller’s account pursuant to Section 7 (Shipment) above or (b) Nonconforming Products and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Products” means only the following: the Products shipped are different than identified in Buyer’s order; or the Product’s label or packaging incorrectly identifies its contents. If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, replace such Nonconforming Products with conforming Products, or credit or refund the price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to the location specified by Seller. If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Buyer’s shipment of Nonconforming Products, ship to Buyer, at Seller’s expense, the replaced Products to Buyer’s delivery location. Buyer acknowledges and agrees that the remedies set forth in this paragraph are Buyer’s exclusive remedies for the delivery of Nonconforming Products.

9. Changes and Returns. Any requested changes in Product, quantities, destination, shipping schedules, or any other aspect of the Products are not binding on Seller unless agreed to in writing by Seller in its discretion and may result in price, delivery, and other adjustments by Seller. Products that have not been used, that are in their original condition, and have their original packaging may be returned within sixty (60) days from the delivery date. Buyer shall pay for the cost of shipping returned Products back to Seller. Seller reserves the right to charge a re-stocking fee on returned Products in Seller’s discretion.

10. Security Interest. To secure payment and performance of all obligations, Buyer hereby grants to Seller a continuing purchase money security interest in all Products, whenever sold, consigned or delivered, directly or indirectly, to or for the benefit of Buyer by Seller, wherever located, and all proceeds from the sale thereof until Buyer pays Seller in full for such Products.  Seller’s purchase money security interest is explicitly limited to outstanding obligations between Buyer and Seller. Seller authorizes Buyer to file a financing statement for the Products in the filing office of any jurisdiction(s) Seller deems to be appropriate. Buyer waives its right to receive a verification statement evidencing the registration of a UCC financing statement or UCC change statement.

11. Limited Warranty.

(a)  Product Warranty. Seller warrants to Buyer that for a period of five (5) years from the date of shipment of the Products to Buyer (“Warranty Period”), that the glass and hardware components of such Products (excluding seals) will materially conform to Seller’s published specifications and will be free from material defects in material and workmanship. If a Product fails to conform to the foregoing warranty and Seller is given notice of such failure during the Warranty Period, Seller shall, in its sole discretion, either (i) repair or replace such Product (or the defective part) or (ii) refund the price paid for such Product. Seller may require that the Product be returned to Seller, at Seller’s expense.

(b)  Limitations. All warranty claims are subject to review and confirmation by Seller. The warranty provided in (a) above shall not apply if the Product (i) has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions, or use contrary to any instructions issued by Seller; (ii) has been altered, repaired, or reconstructed by anyone other than Seller; or (iii) has been used with any third-party hardware or product that has not been previously approved in writing by Seller.

(c)  Pass Through to Customers. Buyer may pass this warranty through to its own Customers. However, the warranty shall extend only to the original Customer who owned the property at the time of installation and will not apply to any subsequent owners of the property. Buyer may not modify the terms of this warranty and shall not give or otherwise make any other warranties to Customers on behalf of Seller.      

(d)  Disclaimer of Warranties. EXCEPT FOR THE PRECEDING WARRANTY IN THIS SECTION 11 (“LIMITED WARRANTY”), SELLER MAKES NO WARRANTY TO BUYER WHATSOEVER WITH RESPECT TO THE PRODUCTS AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY (I) WARRANTY OF MERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (III) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

(e)  Sole Remedy. THE REMEDIES SET FORTH IN THIS SECTION 11(“LIMITED WARRANTY”) SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION 11(“LIMITED WARRANTY”).

12. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID BY BUYER TO SELLER FOR THE PRODUCTS SOLD HEREUNDER DURING THE SIX (6) MONTHS PRECEDING THE EVENT WHICH GAVE RISE TO THE LIABILITY.

13. Indemnification. Buyer shall indemnify, defend, and hold Seller its officers, directors, employees and agents harmless from any and all costs (including attorneys’ fees and expenses), liabilities and damages resulting from or related to any third party (including Buyer’s employees) claim, complaint and/or judgment arising from Buyer’s transportation, installation, handling, or use of any Products furnished hereunder.

14. Force Majeure. Seller shall not be liable for any delay or default in the delivery of any Products or in the performance of any other obligations that arise or result from any cause beyond Seller’s reasonable control, including, but not limited to, governmental action, strikes or other labor troubles, fire, damage or destruction of Products, wars (declared or undeclared), acts of terrorism, pandemics, manufacturers’ shortages, availability or timeliness of transportation, materials, fuels or supplies, and acts of God.

15. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement (as defined below) shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

16. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction

17. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

18. Notices. All notices required or permitted hereunder shall be in writing and addressed to Buyer at the address specified in any order or purchase order and to Seller at 1319 Rocky Point Drive, Suite 200, Oceanside, California 92056 or to such other address that may be designated by a party in writing. All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid).

19. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.

20. Governing Law. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule. Except for any matter this is subject to arbitration as provided in these Terms, each of the parties irrevocably consents to the personal jurisdiction of the federal and state courts located in the County of San Diego, State of California, for any matter arising out of or relating to this Agreement.

21. At Seller’s sole discretion, it may require you to submit any disputes arising from these Terms, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, or from your purchase or use of Products to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying California law. Arbitration shall be conducted in the County of San Diego, State of California.

22. Entire Agreement. These Terms along with any invoices, order confirmations, and credit terms issued by Seller together with Seller’s website terms of use (collectively, this “Agreement”) comprise the entire agreement between the parties with respect to the subject matter herein and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. The terms of the Agreement shall not be canceled, modified, superseded, varied or affected by any purchase orders, documents, or other writings submitted by Buyer to Seller. In the event of any conflict between these Terms and any information on Seller’s website, including without limitation any website terms of use or frequently asked questions, these Terms shall prevail and be controlling.