Terms of Sale
PURCHASE AGREEMENT TERMS AND CONDITIONS OF SALE
The following terms and conditions of sale apply to all sales made by American Builders & Contractors Supply Co., Inc., its subsidiaries and divisions, to include but not be limited to L&W Supply Corporation, Mule-Hide Products Co., Inc., Mule-Hide Manufacturing Co., Inc., American Construction Metals, Norandex and American Construction Metals (collectively, the “Seller”). Seller objects to any terms introduced by Buyer and rejects them in their entirety; no terms of Buyer will be of any force or effect.
- If Buyer is purchasing on credit, Buyer must have on file with Seller an approved Credit Application, which can be found at https://lwsupply.com/services/credit/. For any purchase on credit, Buyer consents to Seller’s Credit Agreement, the terms and conditions of which Buyer acknowledges having read and understood and are incorporated by reference herein. All accounts past due are subject to a monthly late payment charge, not to exceed the maximum allowed by applicable state and federal law. By purchasing from Seller, Buyer represents and warrants that Buyer is not a “consumer” as that term is defined in any applicable state and federal consumer protection laws and Buyer agrees to indemnify and hold harmless Seller against any legal matter based on a claim or finding that Buyer is a “consumer.”
- Seller’s acknowledgement and acceptance of Buyer’s order is expressly conditioned upon Buyer’s acceptance of these terms and conditions. No terms or conditions, and no written or oral agreement that purports to vary these terms and conditions, is binding upon Seller unless set forth in writing, signed by an officer of Seller. All negotiations, proposals and representations are merged herein, and this writing constitutes the complete and exclusive statement of the terms and conditions of the Purchase Agreement between Buyer and Seller. BUYER ACKNOWLEDGES THAT BUYER IS NOT RELYING ON ANY REPRESENTATION OR PROMISE OF SELLER THAT IS NOT EXPRESSLY SET FORTH IN THIS PURCHASE AGREEMENT. In the event Buyer fails to accept this Purchase Agreement in writing, Buyer’s consent to the terms and conditions herein is conclusively presumed, either from Buyer’s failure to object within five calendar days in writing or from Buyer’s acceptance or use of the material delivered hereunder. Unless Buyer notifies Seller in writing to the contrary prior to making a purchase, Buyer represents and warrants that any employee or agent action on Buyer’s behalf is authorized by Buyer to do so and Seller may rely upon such representation.
- In any case in which Seller makes delivery, Buyer will pay Seller’s customary shipping charges. Delivery will be made at the project site or other place of delivery adjacent to the closest public right of way. Title and risk of loss passes to Buyer upon delivery of the goods. Should Buyer not be present to accept delivery, Buyer authorizes Seller to unload the goods and leave them at the delivery destination. Buyer releases Seller and will indemnify and hold harmless Seller from and against any and all claims demands, actions, causes of action, cost, expenses, and attorneys’ fees arising out of or in connection with any and all injury including death, to any person or persons (whether third parties or agents, servants, or employees of Buyer), any and all damages to or loss of any property (whether belonging to Buyer or a third party), and any and all other damages recognized at law or in equity caused in whole or in part by or in any way related to the delivery of goods onto (or adjacent to) the project site by Seller, whenever such delivery is made in accordance with or pursuant to Buyer’s instruction or authorization.
- Buyer has the right to inspect the goods upon arrival. Buyer’s inspection rights expire three (3) days after the arrival of the goods at the delivery destination. A failure to make inspection within that time waives notice of any defect that a reasonable inspection would have revealed. A rejection of the goods by Buyer is not effective unless written notice of rejection is given to Seller within three (3) days of delivery.
- Without prejudice to any other rights, Seller may suspend further deliveries of any goods purchased if Buyer defaults in payment of any amounts due, or whenever Seller may deem itself insecure as to Buyer’s performance, until Buyer remedies such default or provides assurance that satisfies Seller in its sole discretion, of Buyer’s ability to perform. Seller may cancel any order at any time prior to payment by Buyer.
- Unless otherwise provided by law, Seller may require Buyer to pay or to reimburse Seller for any tax (except income tax) which now or hereafter is imposed by any taxing authority with respect to the goods purchased or the sale, purchase, manufacture, delivery or use thereof.
- Seller reserves the right to discontinue, without liability, deliveries of any goods, the manufacture, use and/or sale of which in the opinion of Seller would infringe any patent now or hereafter issued, or other intellectual property right under which Seller is not licensed.
- Where Buyer requires tests or inspection not regularly provided by Seller, Seller may charge Buyer for the actual cost of such test or inspections.
- Buyer’s wrongful nonacceptance of goods, or cancellation or repudiation of an agreement to purchase goods or services entitles Seller to recover, in addition to any incidental damages caused by Buyer’s wrongful nonacceptance, cancellation or repudiation, either (i) in the case of goods which cannot reasonably be resold by Seller to a third party, or service which have already been performed by Seller, the price of such goods or services; or (ii) in the case of goods for which other buyers exist or services not yet performed, or where an action for the price is not otherwise permitted by law, twenty percent (20%) of the contract price as liquidated damages (which constitute a reasonable estimate of Seller’s loss and not a penalty). In the case of special orders, all Seller’s out-of-pocket expenses, if any, incurred prior to receipt by Seller of notice of cancellation by Buyer, in connection with providing special services, developing special tooling, purchasing special supplies and the like are recoverable, in addition to the foregoing.
- Seller is not responsible for and will not liable for any damages (of any nature whatsoever) for any delay caused in whole or in part by circumstances beyond Seller’s reasonable control, including but not limited to, force majeure, fires or accidents; strikes or other differences with workers; war (whether declared or undeclared), riots or embargoes; delays by carriers; delays in shipment or receipt of materials from suppliers; or any legislative, administrative or executive law, order or requisition of the federal or any state or local government or any subdivision, department, agency, officer or official thereof. In the event of any shortage of goods, Seller may allocate its available supply among Seller’s customers, including Seller’s branches and affiliates, in any manner Seller deems reasonable.
- BUYER ACKNOWLEDGES THAT BUYER’S PURCHASE DECISION IS BASED SOLELY UPON BUYER’S DUE DILIGENCE OF THE GOODS REQUIRED BY BUYER AND NOT BY REASON OF OR RELIANCE ON ANY STATEMENT MADE BY OR ON BEHALF OF SELLER AS TO THE MERCHANTABILITY, SPECIFIC ATTRIBUTES OR OTHER INFORMATION REGARDING THE GOODS. In the case of goods manufactured and sold by Seller with a separate written warranty, that warranty will apply. Otherwise, in the case of goods manufactured and sold by Seller, Seller warrants only that such goods have been manufactured in accordance with Seller’s specifications and are free from defects in material and workmanship at the time of sale. For all other goods, upon request, Seller makes no warranties, but will assign or transfer to Buyer any assignable or transferable manufacturer’s warranties, if any, applicable to the purchase, in lieu of all other warranties, express or implied. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SELLER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THERE IS NO WARRANTY THAT EXTENDS BEYOND THOSE GIVEN IN THIS PURCHASE AGREEMENT. Buyer acknowledges that lumber and other product dimension descriptions are made consistent with industry standards and do not necessarily represent exact or accurate dimensions. For example, lumber commonly called “2×4” is actually 1.5 inches deep by 3.5 inches wide.
- As a courtesy to Buyer, Seller may, upon request, provide certain services ancillary to the supply and delivery of building materials. These ancillary services may include, but are not limited to, identifying potential installers for the goods purchased from Seller, assisting in field measurements, preparing shop drawings and visiting job sites. Seller makes no warranties regarding such ancillary services; they are provided AS IS – WHERE IS and Seller disclaims all warranties with respect to the same, either express or implied. In the event Seller provides ancillary services, it is Buyer’s sole responsibility to conduct its own independent diligence regarding the services including verifying field measurements, inspecting construction work and selecting installers. Seller is not liable for any actions of any installer(s) or any defect in any work, whether or not the installer is suggested by Seller.
- Buyer’s Remedies/Seller’s Limitation of Liability: (a) Buyer’s sole and exclusive remedy and the limit of Seller’s liability for goods or services proven to be other than warranted, whether based upon breach of warranty, negligence, strict liability, tort, breach of contract or any other legal theory, will be, at Seller’s option, (i) replacement of the goods or services, without charge, carriage paid to Buyer’s facility; or (ii) refund of the purchase price paid in respect of such goods or services, plus commercially reasonable charges in connection with the return or disposition of goods (if applicable). Seller’s liability will not exceed the aggregate purchase price of the particular goods and services with respect to which losses, damages, expenses or costs are claimed. Buyer must make any claim against Seller (whether sounding in contract or tort) within 12 months of the date of shipment of the goods or performance of the services, and any such claim not made within such 12-month period is irrevocably waived.
(b) SELLER IS NOT LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMGES, LOSS OF ANTICIPATED PROFIT, UNABSORBED OVERHEAD, INTEREST ON CLAIMS, PRODUCT DEVELOPMENT AND ENGINEERING COSTS, FACILITIES AND EQUIPMENT REARRANGEMENT COSTS OR RENTAL, UNAMORTIZED DEPRECIATION COSTS, AND GENERAL AND ADMINISTRATIVE BURDEN CHARGES TO ANY PERSON, WHETHER BASED UPON BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, TORT, BREACH OF CONTRACT OR ANY OTHER THEORY, REGARDLESS OF WHETHER THE REPLACEMENT OR REFUND REMEDY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE OR FOR ANY OTHER REASON WHATSOEVER. Seller will not be liable for any damages attributable to product abuse, misuse, neglect or any other cause, which is not the fault of Seller.
(c) The limitation of liability set forth in this paragraph will survive termination or cancellation of this Agreement. For the avoidance of doubt, Seller is not liable for any damages whatsoever whether direct or indirect resulting from any delay in delivery of the goods or failure to deliver the goods in a reasonable time – whether or not such delay or failure is caused by Seller.
- Seller has no liability to any person other than Buyer by virtue of the sale of the goods or services, or any other matters contemplated by this Agreement. There are no third-party beneficiaries to this Agreement. If Buyer is purchasing goods for re-sale, Buyer will add Seller as a party protected by Buyer’s warranty and limit of liability provisions in Buyer’s terms of sale.
- (a) Buyer agrees to indemnify and hold harmless Seller from and against any and all claims, demands, actions, causes of action, costs and expenses arising out of or in connection with, in whole or in part, any act(s) or omission(s), negligent or otherwise, of Buyer, or any of Buyer’s agents, servants, employees, subcontractors or customers, including but not limited to: (i) claims of personal injury, including death, to any person or persons (whether third parties or agents, servants or employees of Buyer or Seller); (ii) claims of loss of any property, real or personal (whether belonging to Seller, Buyer or to a third party); and (iii) any and all other damages recognized at law or in equity under any theory whatsoever.
(b) This indemnity includes, but is not limited to, any reasonable attorney’s fees or other reasonable legal fees incurred by Seller and associated with the foregoing.
(c) This indemnity provision is a material term to the Agreement. Buyer’s duty to indemnify is a condition to the sale of any goods from Seller to Buyer. Buyer has read the indemnity provision in its entirety, understands each and every part of the provision and acknowledges that there is no ambiguity concerning Buyer’s duty to indemnify.
(d) In the event that the applicable law prohibits enforcement of this clause as written, then and only then, this clause will be modified to provide the maximum indemnification to Seller, as indemnitee, allowable under that applicable law.
- Buyer represents and warrants that it has complied and will comply with all applicable laws, rules and regulations pertaining to the export, import and movement of the goods sold hereunder. All drawbacks of duties paid on items used in the manufacture of the goods delivered hereunder will accrue to the Seller, and Buyer agrees to furnish the Seller with all documents and cooperation necessary to obtain payment of such drawbacks.
- This Agreement will be governed by and construed according to the laws of the state where the Seller branch supplying the goods hereunder is situated. Any action brought upon, or by reason of, this Agreement will be brought, in Seller’s sole discretion, either in a court with jurisdiction over the county in which the Seller branch is located, in a court with jurisdiction over the county in which the project for which the goods are to be used is located, or in a court or before an arbitration panel where an action between Seller and a third party is pending which concerns the subject matter of this Agreement. Buyer agrees that, in the event any action is brought upon, or due to, this Agreement by either Buyer or Seller, and Seller prevails, Buyer will pay Seller’s reasonable attorney’s fees and other costs incurred because of or in connection with such action, in the maximum amount permitted by law.
- Waiver by Seller of any terms or conditions of this contract or waiver of any breach hereof will not be construed as a waiver of any other term, condition, or breach. Determination that any provision of this Agreement is illegal or invalid will not affect the validity or enforceability of the remaining provisions of this Agreement.
- Returns must be made in accordance with Seller’s return policy. A copy of this policy may be found at https://www.abcsupply.com/services/return-policy/ or is available upon request.
- The purchase of goods or services will not entitle Buyer to use, or otherwise identify Buyer or its business with the name, trademark or other identity of Seller. Should Buyer violate this provision, Seller reserves all remedies provided for by law or in equity, including, without limitation, injunctive relief.
- T/D symbols printed on the front of any Seller warehouse picking/delivery ticket, invoice, or statement represents the tax and discount status of individual items. The following is a description of each symbol or combination of symbols:
/ = Taxable regardless of the order’s tax status
\ = Nontaxable regardless of the order’s tax status
= Non-discountable regardless of the order’s terms
/ = Taxable and non-discountable regardless of the order’s tax status and terms
\ = Nontaxable and non-discountable regardless of the order’s tax status and terms
If the item is taxable, and discountable based on the order’s tax status and terms, no symbol will print.