Terms and Conditions of Offer
The following Terms and Conditions shall apply to transactions completed based upon an original offer made by CONSTRUCTION SPECIALTIES, INC. or its subsidiaries or affiliates (the "Company") to any entity identified in such offer as the Buyer (“Buyer”).
A – GENERAL
- OFFER: Company’s quotation (also referred to “offer”) is expressly limited to and made conditional upon Buyer’s acceptance of the terms and conditions contained herein and in the related quotation(s) that gave rise to the purchase transaction. Any of Buyer’s terms and conditions that are in addition to or different from those contained herein, and which are not separately agreed to in writing (except additional provisions specifying quantity, character of the goods ordered, and in shipping instructions) are herby objected to and rejected. Buyer will be deemed to have assented to these Terms and Conditions if any part of the materials described in a Company quotation is accepted.
- MANUFACTURERS REPRESENTATIVES: All purchase orders and/or subcontracts are subject to the Terms and Conditions contained herein. Purchase orders from Buyer must be issued to the Company. Independent manufacturers' representatives (“IMRs”) are not authorized to accept purchase orders on behalf of the Company without prior written consent from the Company. IMRs are not authorized to act as agents of the Company or to bind the Company in any manner whatsoever. The sole function of any IMRs is to promote and solicit orders. Any business transacted or orders obtained by IMRs are subject to rejection by the Company in its sole discretion.
- APPROVAL OF THE COMPANY: It is presumed that Buyer has obtained approval (from the Architect, Owner, or other approving authority as may be required) of the Company as a vendor and consequently, such contingency in Buyer's order, if existing, is deemed to have been satisfied.
B – MATERIAL
- DESIGN: The materials shall be in accordance with the Company's literature, unless modified in the interest of improvement in which event it shall be deemed in accord with such literature. The Company assumes no responsibility for designs prepared by others.
- CONFIDENTIALITY: Any and all of the Company’s confidential or proprietary information obtained by Buyer in the course of dealing with the Company shall be retained as confidential by Buyer and Buyer agrees that it will not use or disclose such information to any third party without the Company’s prior written consent. The Company retains the ownership and all rights in and to any and all invention, improvement, discovery, patent or other intellectual property rights in or relating to the goods delivered hereunder.
- PATENTS: If the materials sold hereunder are to be prepared for manufacture according to Buyer’s specifications, drawings, designs, or selections, Buyer shall defend, hold harmless, and indemnify the Company against any and all claims, liability, costs or attorney’s fees incurred, in relation to any claim for infringement of any patent, trademark, copyright or any other intellectual property rights of any third party.
- WARRANTY: The Company warrants to Buyer that all items manufactured by the Company and included in its offer shall be free of defective material or faulty workmanship in accordance with the Company’s standard warranties for those materials. The liability of the Company for any breach of the foregoing warranty shall not extend to dismantling, installing or reinstalling, but shall be limited to repairing or replacing said items at the Company's option, within a reasonable time after the Company receives from Buyer a detailed written notice describing the defective items sent immediately upon Buyer’s detection of said defects and received by the Company within the period provided herein; the foregoing is contingent upon the Company’s agreement that the items are defective. The Company makes no warranty with respect to items supplied to Buyer by the Company based on its offer, but manufactured by others, except to the extent of any warranty given to the Company by such others. Buyer further agrees that the Company is not responsible for any other conditions over which the Company has no control. In no case shall the Company be liable for incidental or consequential damages, or any other expenses, losses, or damages, arising from breach of any of the foregoing warranties or for breach of any contract or alleged contract entered into by Buyer and Company. THE COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY, BEYOND WHAT IS CONTAINED HEREIN. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION PROVIDED HEREIN.
C - CHANGES AND CANCELLATION
- CANCELLATION: After Buyer accepts this offer, the order cannot be cancelled by Buyer, except with the Company's written consent. Cancellation by Buyer shall be subject to conditions set forth by the Company at the time of breach, including but not limited to reimbursement of any and all of the Company’s losses. A cancellation charge of up to 15% of the price of the order in addition to all actual costs incurred by the Company will be invoiced. In contracts where the Company offer is for a Company specialty product, the term “loss” shall mean the entire order price. For purposes hereof, a specialty order is an order for a product not generally sold by the Company or manufactured for inventory in the ordinary course of the Company’s business. The determination of whether a product is a specialty product shall be made exclusively by the Company and shall be binding upon all parties.
- CHANGES AND RIGHT TO TERMINATE: Changes will be binding on the Company only if in writing and signed by an authorized representative of the Company. The Company shall have the right to terminate if any of the following occur: (i) Buyer becomes insolvent or is subject to bankruptcy proceedings; (ii) Buyer ceases to conduct operation in the normal course of business; (iii) Buyer is unable to meet its obligations as they mature, or admits in writing such inability; (iv) no change or termination shall relieve buyer and the Company of their obligations as to any material shipped prior to the Company’s receipt of the change, termination or suspension order.
- REORDERS: Reorders, at the Company’s option, may require a new written agreement. Any reorders accepted by the Company but not placed pursuant to a new written contract shall be governed by the terms and conditions stated herein.
D – INSTALLATION AND LABOR
- FIELD LABOR: The Company is a supplier only. Any and all references in Buyer’s purchase order to on-site labor, field verifying and/or measuring, installation, or any other job site related activities are hereby deemed inapplicable to this offer unless otherwise specifically agreed to by the Company in a written document signed by an authorized signatory of the Company.
- MEASUREMENTS: Prices quoted include preparation of drawings for approval if indicated in the offer. Field measurements and verification of dimensions shall be responsibility of Buyer.
E – PRICE AND PAYMENT
- PRICE: The prices stated in Company offers are firm against escalation for 90 days from the date of the offer, and for shipment within 6 months thereafter. Any orders shipped beyond 6 months after the date of the offer shall be subject to an escalation up to 1.5% for each month or partial month thereafter and invoiced at the time of shipment. If the offer is not accepted by return of a purchase order within 90 days from the date of the offer, the Company reserves the right to withdraw this offer. If there is a delay in completion of shipment of Buyer’s order, due to any change requested by Buyer, or as a result of any delay on Buyer’s part in furnishing information required for completion of the order, the price agreed upon at the time of acceptance of the Company’s offer is subject to change.
- TAXES: All federal, state and local taxes are excluded from the purchase price, or contract sum set forth in Company’s offer unless otherwise specifically noted, and all taxes of whatsoever kind or nature shall be paid by the Buyer unless otherwise agreed upon in writing. The Company shall add all required or assessed taxes to the invoice values billed, unless Buyer furnishes the Company an appropriate tax exemption certificate.
- PAYMENT: Payment of all invoices shall be made in full within 30 days of invoice. All payments must be in United States dollars unless otherwise specified in this offer. The Company may suspend the supply of materials to the Buyer where any amounts are overdue under any contract until all such amounts have been paid. Interest is payable on overdue accounts at the rate of 1.5%, compounded monthly, until paid in full. If either party seeks legal recourse to enforce rights under these Terms and Conditions or the offer, the prevailing party shall be entitled to recover its legal costs, including reasonable attorney’s fees. If, in the Company’s opinion, the Buyer’s credit worthiness deteriorates before delivery of the materials, the Company may cease delivery in its sole discretion and may require full or partial payment prior to delivery, or the Company may require the provision of security by the Buyer in a form acceptable to the Company.
- THE COMPANY’S OPTIONS: If Buyer fails to make payment on this or any other order in accordance with the Company's terms, or if the Company has any doubts as to Buyers responsibility, the Company may suspend performance. In such a case, the Company shall no longer be obligated to complete performance under the contract. If Buyer’s actions prevent the Company from completing performance within 12 months from date of Buyer’s acceptance, Buyer agrees to pay all collection and interest charges, including reasonable attorney's fees.
- ASSIGNMENTS: Neither party may assign any interest or duties created by this Agreement without the prior written consent of the other party. This Agreement may be assigned without such consent in the case of a sale, transfer, merger, or other assignment of all or a portion of Company’s business to a third party that assumes in writing the obligations of this Agreement.
F – DELIVERY, DELAYS AND CLAIMS
- DELIVERY: The promised delivery date is based on the best estimate possible of when the goods will be shipped. Time of delivery is NOT of the essence. The Company shall not be liable for any loss, damage, incidental or consequential damages due to delays. Buyer must present to the Company any claim for damaged materials within fifteen (15) days after receiving the materials, and the Company will work with Buyer to correct any defective or damaged material in a timely manner. The time and action required to comply with all corrective actions must be mutually agreed to by the parties in writing before any costs or damages are assessed. Carrying charges may be imposed on Buyer for shipments that are delayed upon Buyer’s request. If Buyer refuses or fails to take delivery of the goods tendered in accordance with the contract, the Company may terminate the contract, may dispose of the goods as it sees fit, and may recover from Buyer any loss and additional costs incurred as a result of such refusal or failure.
- DELAYS: The Company shall not be liable for any delay in manufacture, delivery or its performance hereunder due to fires, acts of God, labor related problems, delays in transportation, acts of any government or agency or subdivision thereof, accidents at manufacturing facilities, inability to procure supplies, raw materials and transportation facilities, or other contingencies beyond its control. If any contingency occurs, the Company may allocate production and delivery of materials among its customers. Buyer agrees to accept partial delivery of the goods in the Company’s possession.
- CLAIMS. Claims for errors, deficiencies, imperfections, material shortages, or delay covered by Section F.2 above will be waived by Buyer unless made in writing with reasonable promptness after receipt of materials, but in no event later than 30 days after arrival of materials at destination. Should Buyer fail to notify the Company within the prescribed time, all replacement materials shall be at Buyer's expense. Defective or improper materials will be replaced or the purchase price paid by Buyer will be refunded upon the materials’ return, but the Company shall not be liable for dismantling, installing or reinstalling. Regardless of the nature of any claims, the Company's liability shall be limited to purchase price paid by Buyer to the Company, and the Company shall not be liable for any claims for any incidental or consequential or punitive damages, or any other expenses, losses, or damages, directly or indirectly arising from the sale, remanufacture, handling or use of the goods or from any other cause relating thereto, whether founded in contract or in tort. The remedies to Buyer under these Terms and Conditions are exclusive.
- RISK OF LOSS: Risk of loss involving materials sold F.O.B. shipping point, even though transportation costs may be included in price, shall be borne by Buyer, and Buyer shall pursue claims with the carrier in the event of loss or damage in transit. Company may in its sole discretion choose to assist Buyer in pursuing claims with the carrier. Expense in connection with detention of carrier's equipment at destination shall be for the account of Buyer. Notwithstanding the above, title to the goods shall not pass from the Company to Buyer until Buyer pays to the Company the agreed price for the goods (together with accrued interest) and any other sums due from Buyer to the Company. Until title passes to the Buyer, Buyer shall hold the goods on a fiduciary basis and shall not part with the goods other than in the ordinary course of business, shall take care of the goods and take all reasonable steps to prevent damage to them, and keep the goods free from any charge, lien, or other encumbrance.
- INSURANCE: The Company is a material supplier only and shall not be required to supply, and shall not supply, a certificate of insurance. However, the Company shall supply its LTL carrier’s insurance when requested.
G – ADDITIONAL TERMS AND CONDITIONS
- COURSE OF PERFORMANCE: The Company’s decision to accept or acquiesce in a course of performance shall not impact the terms herein, though the Company knows the nature of the performance and has an opportunity to object to it. In no event shall any such action constitute or be deemed a waiver of any right, claim or defense against Buyer.
- WAIVER: The waiver or failure of any party to exercise any rights pursuant to this Agreement shall not be deemed a waiver or other limitation of any right or future right.
- SEVERABILITY: If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.
- STATUTE OF LIMITATIONS: A cause of action arising out of a breach of this agreement must be brought with one year of accrual.
- MUTUAL INDEMNIFICATION: In addition to Buyer’s obligations under Section B3, Buyer shall defend, indemnify, and hold Company free and harmless from any and all claims, damages or lawsuits (including reasonable attorneys’ fees) arising out of or connected in any way with the negligence or misconduct of Buyer. Subject to Sections F2 and F3, the Company shall indemnify and hold Buyer free and harmless from any and all claims, damages or lawsuits (including reasonable attorneys’ fees) arising out of material defects in the products which are caused by the Company, or for the failure of the Company to deliver, without reasonable excuse, any products to Buyer which were properly ordered by Buyer.
- ARBITRATION: Any controversy or claims arising out of or relating to this agreement, or the breach thereof, shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association at the New York Regional office and judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. This Agreement shall be construed and enforced in accordance with the laws of the State of California.
- ENTIRE AGREEMENT: This Agreement, including any schedules attached hereto, constitutes the entire Agreement and supersedes all prior agreements, negotiations, representations and proposals, written and oral, relating thereto.
- OFFICIAL LANGUAGE: This Agreement has been prepared in the English language which is the only official, legally binding version of this Agreement. Although unofficial translations of this Agreement into other languages may have been prepared, the English language version of this Agreement shall always prevail and be binding on all Buyers in any transaction whereby Buyer is purchasing from the Company.
- BUYERS CONTRARY TERMS: Any of the terms and conditions set forth in the Buyer's acceptance of this offer (i.e., the purchase order or General Conditions of Contract attached thereto) that are inconsistent with the Terms and Conditions of this offer shall not bind the Company and shall not be considered applicable or deemed applicable to the sale of materials under this offer. The Company has invested significant time and energy in the development and statement of its Terms and Conditions. The Company Terms and Conditions shall govern all Company product sales unless otherwise agreed to in writing by the Company’s authorized personnel. Only Company officers are authorized personnel. The term “Officer” refers exclusively to a Company or division executive having the title of President, Vice President, Secretary, or Associate or Assistant Vice President. Company employees and/or representatives who sign customer purchase orders are confirming the order under the Terms and Conditions of the Company Offer and Order Acknowledgement. No waiver, alteration or modification of any of the provisions set forth in these Terms and Conditions, in the Quotation/Offer, or Order Acknowledgement shall be binding on the Company unless made in writing and signed by an Officer of the Company.
H – INTERNATIONAL
The above terms and conditions apply to International orders in addition to the below unless otherwise noted.
- INTERNATIONAL ORDERS: For shipments outside the U.S., Company requires that all freight forwarders who handle Company product be C-TPAT certified. Please contact your representative or distributor for more information and a list of available C-TPAT carriers for your area. Buyer agrees that it shall comply with all relevant U.S. and foreign laws and regulations related to export of Company product from the U.S. Buyer agrees that Company shall be listed as the United States Principal Party in Interest (USPPI) on all hardcopy and/or electronic paperwork required by U.S. law or regulation, including but not limited to filings required by, or submitted to, U.S. Customs and Border Protection, including specifically the Advance Export Declaration. Buyer agrees that it shall not alter Company commercial invoices, bills of lading, or other documentation. Company reserves the right to immediately cancel any previously confirmed orders and/or immediately cancel product shipments to Buyer if Company discovers that Buyer, its employees, freight forwarders, agents, or representatives have violated this provision.