PRODUCTS.
These terms and conditions (“Terms and Conditions”) cover the products (the “Products”) being described in each order form delivered by Pineapple Contracts Inc. (“Pineapple”) to you, the client (“Client”) to evidence Products ordered by Client from time to time (each, an “Order”) and, if applicable, in any Change Orders (as hereinafter defined). These Terms and Conditions supersede all prior oral and written agreements between Pineapple and Client with respect to the Products covered by each Order. Except as specifically set forth herein or in the applicable Order, all terms and conditions contrary to these Terms and Conditions are expressly rejected by Pineapple and waived by Client. Unless Client promptly delivers to Pineapple written notice of any inaccuracy or misstatement set forth in any Order, Client shall be deemed to have accepted such Order upon Client’s receipt of such Order. Client hereby acknowledges and agrees that, although Client may not be requested to sign or execute any Order after the date hereof, these Terms and Conditions shall apply to each such Order made or entered into by Client after the date hereof, and Client shall be deemed to have reaffirmed these Terms and Conditions as of each such date.
COMPENSATION.
As compensation for the Products, Client shall pay to Pineapple the amount set forth in each Order, as increased or decreased pursuant to any fee adjustments set forth in any Change Orders (the “Fees”).
SCHEDULING.
Client understands that the Products to be delivered by Pineapple are unique, extremely complex and may involve a great degree of Client/Pineapple interaction and discussion. Client must appoint a sole representative (“Client’s Representative”) with full authority to provide or obtain any necessary information and approvals that may be required by Pineapple. Client’s Representative will be responsible for coordination of briefing, review, and the decision-making process with respect to the Products. The time actually required to deliver the Products or any portion thereof will be subject to Client availability, timely delivery of information by Client Representative to Pineapple, unforeseen issues, changes and modifications requested by Client pursuant to Change Orders (defined below) and other matters which generally effect the Products. Pineapple shall properly staff all projects and will use its reasonable efforts to meet all agreed upon schedules.
CHANGE ORDERS.
In the event that Client requests any modifications to the Products, Pineapple shall prepare and deliver to Client an additional Order with respect to such Products describing such modifications and the changes in the Products necessary to effectuate such modifications (a “Change Order”). Such Change Order(s) will also set forth the additional Fees, if any, and an estimate of the revised schedule for delivery of the Products as a result of such modifications to the Products. After receipt of a Client request, verbal or written, for modifications to the Products, Pineapple may elect not to deliver the Products until Pineapple receives a signed copy of the Change Order from Client or Client’s Representative and the schedule for delivery of the Products shall be extended by the number of days elapsed between the receipt of the modification request from Client and Pineapple’s receipt of the signed Change Order. The execution of the Change Order by Client shall constitute authorization from Client to Pineapple to proceed with delivery of the Products as modified by the Change Order and Client’s consent to the increase or decrease in the Fees and revised schedule set forth in the Change Order.
EXPENSES.
Client shall reimburse Pineapple for all direct out-of-pocket costs and expenses incurred by Pineapple in connection with the Products and these Terms and Conditions including, but not limited to, all shipping and delivery expenses (collectively, “Expenses”), subject to any qualification set forth on the applicable Order. The estimated Expenses in each Order are an estimate only; there may be additional Expenses (whether in type of expense or in actual cost), and Client shall pay any such reasonable overages to Pineapple despite the estimate provided in the applicable Order. Pineapple shall have the right to require Client to directly pay all Expenses.
INVOICES.
Unless otherwise provided in the applicable Order, Pineapple shall issue a final invoice to Client (an “Invoice”) upon delivery of the Products.
PAYMENTS/SECURITY INTEREST.
Client shall pay the final Invoice within 30 days of receipt of such Invoice. Any amount which is not paid when due shall bear interest at the rate of 1.5% per month (or the minimum rate allowed by law, whichever is less) or portion thereof from the date such amount became due through the date on which payment is received by Pineapple. All payments shall be made to Pineapple at Pineapple Contracts Inc.. As security for the amounts due to Pineapple in connection with the Products, Client hereby grants and conveys to Pineapple a security interest in and to and a lien on all of Client’s property that is or may hereafter be in the possession of Pineapple, including, without limitation, any project materials. The security interest and lien herein granted to Pineapple shall continue until and will be terminated only upon payment in full by Client of all amounts due to Pineapple following delivery of the Products. Title to the Products shall remain with Pineapple unless and until Pineapple has been paid in full for such Products in accordance with the terms of the applicable Order and these Terms and Conditions.
COLLECTION/ENFORCEMENT EXPENSES.
In addition to any other amounts due hereunder, Client shall reimburse Pineapple for all costs and expenses incurred by Pineapple (including reasonable attorneys’ and paralegals’ fees and expenses) in collecting any amount due to Pineapple or enforcing any provision of these Terms and Conditions.
TERMINATION.
These Terms and Conditions shall commence on the date set forth below and, unless sooner terminated in accordance with these Terms and Conditions, shall continue until terminated as set forth herein. Either party may terminate these Terms and Conditions upon written notice to the other if the other party has breached a material provision of these Terms and Conditions and such breach is not cured (i) within 30 days following notice thereof if such breach is non-payment related, and (ii) within five days following notice thereof if such breach is for non-payment of an amount due. Upon termination of these Terms and Conditions, Client shall pay to Pineapple concurrently with the effective date of termination, all amounts owing to Pineapple for all previously delivered Products plus all irrevocable commitments and Expenses incurred hereunder by Pineapple prior to the effective date of termination; provided, further, in the event (a) that Pineapple is not able to deliver the Products for any reason or issue that is in the reasonable control of Client, and (b) such reason or issue is not cured by Client within 90 days of becoming aware of such reason or issue, then Pineapple may immediately terminate these Terms and Conditions, and Client will be immediately liable for the total sum set forth on the applicable Order as if the applicable Products had been delivered by Pineapple.
LIMITED WARRANTY.
Pineapple warrants that the Products shall be free of material defects in workmanship for a period of seven years from the date of purchase (the “Warranty Period”), and during the Warranty Period, Pineapple will, in its sole discretion, either repair, replace or cure any defective Products, or return the purchase price paid by Client to Pineapple for the applicable Product found by Pineapple, in its sole discretion, to be defective; provided, however, that: (i) the applicable Product is returned to Pineapple with evidence of the purchase date in accordance with the claims procedure outlined below; (ii) the applicable Product has been purchased directly by Client and was used under normal conditions for which it was designed and intended to be operated and maintained; (iii) the applicable Product has not been misused or handled carelessly; and (iv) repairs have not been made or attempted other than by Pineapple’s service staff. Notwithstanding the foregoing, the foregoing warranty shall not apply to the following Products: recliner mechanisms (manual and electric), fabrics showing “crisp-and-craze” effect or stickiness on vinyl fabrics, mattresses (spring interior), and bean bags (polystyrene filling), for which the Warranty Period related thereto shall be for two years after date of purchase of such Product and shall apply to material defects in workmanship subject to the same exclusions set forth above.
Pineapple’s foregoing warranty obligation shall be conditioned upon receipt by Pineapple of notice from Client as follows: (a) by telephone at 800.496.9324, (b) by e-mail to [email protected], or (c) by written notice to Customer Care Department, Pineapple Contracts Inc. at [email protected], in each case as soon as reasonably practical after the applicable damage had occurred. Pineapple will not be responsible or accept invoices for unauthorized repairs to any such Products, even if defective. Pineapple shall not be responsible for any Products which Pineapple has determined, in its sole discretion, to have been altered, abused, misused, or improperly repaired, or for any loss, damage, defect, claim or non-performance resulting from or attributable to Client’s specifications.
DISCLAIMERS/LIMITATION OF LIABILITY.
EXCEPT AS SET FORTH IN SECTION 10 ABOVE, PINEAPPLE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR TITLE AND, EXCEPT AS SET FORTH IN THESE TERMS AND CONDITIONS, THE PRODUCTS ARE PROVIDED “AS IS”. Pineapple shall not be liable to Client with respect to any indirect, special, punitive, or consequential losses or damages, including, without limitation, loss of business or lost profits, regardless of the form of action, whether in contract, tort or otherwise, and regardless of whether the cause of action arises from the Products or any component thereof, or from performance by Pineapple under any Order or any action or failure to act by Pineapple; provided further, in no event shall Pineapple’s liability to Client under any Order or these Terms and Conditions exceed the amount of Fees paid by Client to Pineapple pursuant to the applicable Order. Client must bring any claims against Pineapple under the applicable Order within one year after the date Client knew or should have known of the facts giving rise to such claim under such Order.
RELEASE/INDEMNIFICATION.
Client hereby releases and forever discharges Pineapple and shall indemnify, protect, defend and hold Pineapple and its members, managers, officers, employees and agents harmless from and against any and all claims, actions, suits, proceedings, obligations, liabilities, orders, damages (including, without limitation, adjustments, loss of income or other direct or indirect, incidental or consequential damages), costs and expenses (including attorneys’ and paralegals’ fees and expenses) resulting from, arising out of, related to or in connection with (i) any materials provided by Client to Pineapple in connection with the Products; (ii) any additions, alterations or modification to the Products by Client; (iii) any alleged or actual breach by Client of any provision of any Order or these Terms and Conditions; (iv) any violation or infringement upon the rights or patents, trademarks, trade designs, copyrights or any other intellectual property rights of any individual or entity; (v) risks about which Pineapple has informed Client in advance and that Client has assumed by authorizing Pineapple to proceed subsequent to receipt of such information; or (vi) the negligent or intentional acts or omissions of Client or its affiliates, or any of their shareholders, directors, members, managers, employees or agents.
WAIVER.
Any waiver by any party of its rights under any Order or these Terms and Conditions shall be in writing and signed by the party waiving such right. The failure of either party to enforce any of the provisions of any Order or these Terms and Conditions, or any rights in respect thereto or hereto, shall not waive such provisions, rights or elections or subsequent breaches thereof.
FORCE MAJEURE.
Pineapple shall not be liable for delays in delivery of the Products as a result of strikes, lockouts, fires, war conditions, accidents, foreign or domestic governmental controls or other actions, embargoes, acts of God, or other causes beyond Pineapple’s reasonable control.
RELATIONSHIP OF PARTIES.
The relationship of the parties shall be that of independent contractors and not as partners or joint venturers. Each party is, and is intended to be, engaged in its own and entirely separate business.
ASSIGNMENT/BENEFIT.
Neither the applicable Order nor the rights and obligations in connection therewith and under these Terms and Conditions may be assigned by Client without the prior written consent of Pineapple. Any assignment in contravention hereof shall be null and void. Each Order and these Terms and Conditions shall be binding upon and inure to the benefit of the parties and their permitted representatives, successors and assigns.
NOTICES.
All notices and other communications given hereunder shall be in writing and deemed to have been given when (i) personally delivered, (ii) one business day after delivery to a nationally recognized overnight courier service, (iii) upon the written confirmation of receipt following the transmission of a telecopy or e-mail, or (iv) three days after being mailed by certified mail, postage prepaid, to the addresses of Pineapple or Client as set forth in the applicable Order or to such other addresses as either party hereto may request by notice given as aforesaid.
SEVERABILITY.
In the event that any provision of these Terms and Conditions (or portion thereof) are determined by a court of competent jurisdiction to be void, invalid or otherwise unenforceable, such provision (or part thereof) shall be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, shall be deemed to be deleted from the applicable Order or these Terms and Conditions, as the case may be, while the remainder of the applicable Order and these Terms and Conditions shall continue in full force and remain in effect according to their stated terms and conditions.
TAXES.
Client will pay any sales, use, or other transfer taxes that may be applicable to the Products provided under each Order.
SOLE OBLIGOR.
It is agreed that only Pineapple and none of its parents, subsidiaries or affiliates, or any of the foregoing’s’ investors, officers, members, managers, employees, agents or representatives shall have any obligation or liability for any amounts due or that may become due by Pineapple, for any reason, under or in any way related to any Order or these Terms and Conditions. This Section is intended to and shall preclude the Client from alleging or pursuing any claim that depends on or is based in the doctrine of “alter ego”, “piercing the corporate veil” or any other argument or law seeking to hold any person or entity other than Pineapple responsible for any obligation that may arise as a result of the applicable Order or these Terms and Conditions.
ENTIRE AGREEMENT/CONFLICT; AMENDMENT.
Each Order and these Terms and Conditions constitute the entire agreement and understanding between the parties with respect to the Products and supersede all previous negotiations, agreements and representations between the parties, written or oral, all of which shall be deemed to be merged into the applicable Order and these Terms and Conditions. In the event of any conflict between the terms of these Terms and Conditions and any Order, the terms of these Terms and Conditions shall govern. The Terms and Conditions may not be amended or modified except in writing signed by both Pineapple and Client.
GOVERNING LAW.
Each Order and these Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Michigan. In the event of any dispute, action or proceeding in connection with any Order and/or these Terms and Conditions, the Products or any documents, instruments or transactions in connection therewith, the non-prevailing party shall pay all costs and expenses (including reasonable attorneys’ and paralegals’ fees and expenses) incurred by the prevailing party in connection with such dispute, action or proceeding.
JURISDICTION AND VENUE.
PINEAPPLE AND CLIENT IRREVOCABLY AGREE THAT ALL ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR RESPECT, ARISING OUT OF OR FROM OR RELATED TO ANY ORDER AND/OR THESE TERMS AND CONDITIONS, THE PRODUCTS OR ANY DOCUMENT, INSTRUMENT OR TRANSACTION IN CONNECTION HEREWITH OR THEREWITH SHALL BE HEARD OR LITIGATED EXCLUSIVELY IN COURTS HAVING SITUS WITHIN THE COUNTY OF OAKLAND, STATE OF MICHIGAN. PINEAPPLE AND CLIENT CONSENT AND SUBMIT TO THE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN SAID CITY, COUNTY AND STATE AND IRREVOCABLY WAIVE ANY RIGHT TO TRANSFER OR CHANGE VENUE OF ANY SUCH ACTION OR PROCEEDING OR OBJECT TO THE JURISDICTION OF ANY SUCH COURT OVER THE PARTIES HERETO.
