1. Contract for Sales of Goods on a Revolving Basis: All of Buyer’s orders for materials on account shall incorporate the following terms set forth herein. Buyer acknowledges that any purchase or order for materials made pursuant to this Contract for Materials (“Agreement”) on Account is expressly limited to the terms hereof submitted to Buyer evidencing delivery of or pick up of, materials and in the event that the purchase order from the Buyer states terms additional to or different from those set forth herein, this shall be deemed a notice of objection to such additional or different terms and rejection thereof. Any acknowledgment sent by the Seller to the Buyer subsequent to the Seller's receipt of a purchase order from the Buyer shall not be deemed to be an acceptance by the Seller of any offer by the Buyer and shall not alter the terms and conditions of this Agreement or the terms of the sale receipt submitted to Buyer. Buyer further agrees that all of Buyer’s orders will state specific quantities desired and Buyer agrees to pay Seller’s current established unit price for the materials supplied as indicated on the Seller’s invoice for such materials. Buyer clearly understands and acknowledges that there are no refunds on Special Orders. Buyer has read and understands these terms and conditions and agrees that Seller's shipment of any goods or performance of any service under this order shall constitute Buyer's acceptance of these terms and conditions.
2. Payment: Unless otherwise agreed, Buyer agrees to pay all invoices within 30 days from date of invoice (Net 30).
3. Time Price Differential: Buyer agrees that it will pay all invoices within thirty (30) days of the date of the invoice ("Due Date"). This represents the cash price ("Cash Price"). In the event, Buyer fails to pay the Cash Price on or before the Due Date, Seller, shall add a monthly finance charge or time price differential of 1.5% per month on any unpaid balance on all amounts unpaid after the Due Date. The Statement of your account provided to you monthly will detail these (Finance) Charges.
4. Delays: All agreements made, and orders taken are subject to the contingencies of and delays in production and delivery. Seller shall not be responsible, nor will allowances be made, for delays resulting from weather, fire, natural disasters, strikes, other labor troubles, accidents, delays in transportation, equipment failure, shortage of trucks, fuel or material, governmental interference or regulation, another party’s negligence or error, or any other contingencies or reasons beyond Seller’s control. In the event of inability to perform fully, Seller shall have the right to allocate shipments in any manner it deems fair and reasonable.
5. Material Standard: Seller warrants that products sold will conform to the applicable product specifications. Buyer is responsible to see that the material is handled in accordance with best construction practices. Seller has no control over the placing or handling of materials after material has left the yard and expressly disclaims any responsibility for the finished work in which it is used.
Defects/Limitation of Liability: Seller’s liability for defective or nonconforming materials shall be limited, under any theory of law, to their replacement or refund of the purchase price minus any applicable restocking fee. Seller shall have the right to inspect and satisfy itself as to the validity of any such claims. IN THE CASE OF ANY CLAIM MADE AGAINST SELLER, INCLUDING BUT NOT LIMITED TO CLAIMS FOR FAILURE OR DELAY IN DELIVERY, SELLER SHALL IN NO EVENT BE LIABLE FOR ANY LOSS PROFITS, SPECIAL OR CONSEQUENTIAL DAMAGES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY BUYER MORE THAN 60 DAYS AFTER THE MATERIALS SUPPLIED PURSUANT TO ANY ORDER UNDER THIS AGREEMENT HAVE BEEN SUPPLIED. SELLER WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RELATED TO DELAY, WHETHER BASED ON STATUTE, TORT, CONTRACT, OR OTHERWISE, AND WHETHER OR NOT ARISING FROM SELLER'S NEGLIGENCE, STRICT LIABILITY OR FAULT. IN NO EVENT WILL SELLER BE RESPONSIBLE FOR DAMAGES DUE TO THE ACTIONS OF OTHERS OR THE FAILURE OF BUYER TO COMPLY WITH ITS OBLIGATIONS. SELLER'S LIABILITY FOR ANY CLAIMS WILL BE LIMITED TO THE PURCHASE PRICE OF THE GOODS SOLD UNDER THIS CONTRACT. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY EXCLUDED. THE REMEDY SET FORTH IN THESE TERMS AND CONDITIONS WILL CONSTITUTE THE SOLE REMEDY OF BUYER UNDER THE LIMITED WARRANTY PROVIDED HEREIN. EXCEPT AS OTHERWISE PROVIDED UNLESS MADE SPECIFICALLY IN WRITING, SIGNED BY AN OFFICER OF SELLER, AND ATTACHED TO AND MADE PART OF THIS CONTRACT.
6. Seller shall not be responsible for any delays, postponements, or failures to deliver resulting from weather, fires, natural disasters, failure of transportation equipment or facilities, strikes, accidents, other parties’ negligence or error, or any reason or cause beyond the control of Seller. Buyer agrees to protect Seller and hold Seller harmless from any loss or claim arising out of the negligence of Buyer, Buyer's agents, employees, or representatives in the installation of any of Seller’s materials.
7. Seller is Supplier: Buyer acknowledges and agrees that Seller is a supplier of materials within the meaning of applicable laws and regulations and is not to be deemed a subcontractor.
8. Waiver: No waiver of the Seller’s rights shall be valid unless in writing and signed by an officer of Seller.
9. Past Due Accounts/Costs of Collection: Accounts that are past due will be taken off open account status and placed on C.O.D. until such time as the account is brought back to current status. If all or part of this account should become overdue and placed in the hands of an attorney for collection, any attorney fees, cost and other expenses which may be incurred in the collection of monies due under this contract, will be paid for by the Buyer, including attorney’s fees in connection with placing or foreclosure of construction liens or actions on payment bonds filed by the Seller.
10. Personal Guaranty: If the purchaser is a Corporation or Limited Liability Company, than those signing this Contract, a personal guaranty by a responsible individual is required. The individual who signs below as Personal Guarantor, acknowledges that they are a responsible individual as required and hereby personally guarantees payment for any and all obligations of Buyer to Seller arising under this Contract; such guaranty is absolute and unconditional. Seller would not enter into this Contract for Materials on Open Account, extend credit to buyer or provide materials on account without the Personal Guaranty, which is an express inducement to Seller to supply the materials to be supplied hereunder.”
11. No Third-Party Beneficiary. This Agreement is not intended to confer in or on behalf of any Person not a Party to this Agreement (and their successors and assigns) any rights, benefits, causes of action, or remedies with respect to the subject matter or any provision of this Agreement. No provision of this Agreement shall in any way inure to the benefit of any third person (including the public at large) so as to constitute any such person a third-party beneficiary of the Contract or of any one or more of the terms hereof, or otherwise give rise to any cause of action in any person not a party hereto.
12. Construction with Terms on Contract for Materials on Account. The parties agree that the terms and conditions of this Contract for Materials on Account, the terms of the Sale Receipt(s) submitted to the Buyer, or in any quotation submitted by Seller to Buyer, shall be read together, harmonized and construed to supplement each other whenever possible; provided, however, in the event of a conflict between the terms on the Contract for Materials on Account and the terms on Sale Receipt(s) submitted to the Buyer, or in any quotation submitted by Seller to Buyer, the provisions contained in this Contract for Materials on Account shall prevail.
13. Entire Agreement. The terms of this Contract for Materials on Open Account, the Sale Receipt(s) submitted to the Buyer, or in any quotation submitted by Seller to Buyer, or otherwise provided by a supplementary written agreement between the Parties executed by both Seller and the Buyers comprise the entire agreement between the parties respecting the Seller’s sale of materials to the Buyer and supersede all other agreements, written or oral, regarding the subject matter of this Agreement, and no prior or subsequent understanding, agreement, term, condition or trade custom that conflicts with or is supplementary to these terms and conditions is binding on Seller
