Maner Builders Supply Co. - Terms and Conditions
Notwithstanding any different of additional terms that may be embodied in buyer’s order, seller’s acceptance is expressly conditional on buyer’s assent to the additional or different terms and conditions set forth below. Buyer assents to all the below described terms and conditions by failing to object to the terms and conditions prior to acceptance of seller’s goods or prior to seller’s shipment of goods under seller’s confirmation, if any. Seller shall not be responsible for any contracts or agreements by salesmen or representatives which are not affirmed by the invoice.
2. PAYMENT TERMS.
Payment is due in full upon Buyer’s receipt of this invoice. Should Buyer default in the full payment of said purchase price within 30 days of receipt of this invoice, Buyer shall pay interest to Seller on the unpaid balance due at the rate of one and one-half percent (1.5%) per month on any unpaid balance.
Unless otherwise stated, the prices stated herein for the products covered by this agreement are exclusive of all local, state, and federal taxes, including, without limitation, taxes on manufacture, excise, sales, receipts, gross income,occupation, use and similar taxes. Whenever applicable, any tax or taxes have been added to this invoice as a separate charge to be paid by Buyer.
4. FORCE MAJEURE.
Seller shall not be liable for any delay in delivery or failure to deliver any or all the goods where the delay or failure is caused by labor troubles, strikes, lock-outs, way, riots, insurrection, civil commotion, failure of supplies from ordinary sources, earthquakes, fire, flood, storm, accident, any act of God or any other cause beyond the control of Seller. Buyer shall not be liable for failure to take delivery of goods purchased under this agreement where any of the above causes prevent carrier of Buyer from accepting delivery on behalf of Buyer. But, in any case, the party claiming the benefit of this provision shall use due diligence to remove any such causes and to resume performance under this agreement as soon as is feasible. Performance by the other party shall be suspended and excused during the period of any such delay or failure.
5. TITLE AND RISK OF LOSS.
Title, risk of loss or damage to the product shall pass to Buyer upon delivery by Seller to Buyer by Seller’s vehicle or via common carrier arranged by Seller (F.O.B. Buyer’s destination) or delivery to vehicle or common carrier supplied by Buyer.
6. INSPECTION AND RIGHT OF REJECTION.
Buyer shall have the right to Inspect the goods upon receipt. Within two (2) business days after the delivery, Buyer must give notice to Seller of any claim for damages on account of the condition, quality or grade of the goods. Foreign customers shall report complaint by telefax. Buyer must specify in detail the basis of such claim. No claims will be allowed unless Buyer holds the material in question for Seller’s inspection. The failure of Buyer to comply with these conditions shall constitute irrevocable acceptance of the goods by the buyer.All goods returned by Buyer must be accompanied by the buyer’s copy of original sales ticket. A 20% restocking charge will be assessed by the Seller on all goods picked up by Seller. Special order items cannot be returned for credit without approval by Seller.
7. LIMITATION OF DAMAGES.
Upon notice of claim duly given as required by this contract, and acceptance of said claim by Seller of any deficiency or breach of contract, Seller will, at Seller’s option, either replace goods upon return of the defective or unsatisfactory goods, or pay damages not greater than the purchase price of the goods sold by the Seller in respect of which such damages are claimed, under no circumstances shall Seller be liable for incidental, consequential, or other damages,loss of profits, or expenses in connection or by reason of the use of or inability to use goods purchased for any purpose.
All order are accepted with the understanding that they are subject to Seller’s ability to obtain the necessary materials.
NO WARRANTY OF MERCHANTABILITY, FITNESS, OR OTHER WARRANTY (WHETHER EXPRESS, IMPLIED, OR STATUTORY) IS MADE BY SELLER, except that the goods shall be in conformity with the description on the front hereof,and with Seller’s written specifications for the goods. Seller’s sole liability under this warranty is expressly limited to repair or replacement of the goods upon return of the defective or unsatisfactory goods within sixty (60) days of date of delivery of any unsatisfactory product. Under no circumstances shall Seller be liable for incidental, consequential, or other damages, losses or expenses in connection with or by reason of the use of or inability to use goods purchased for any purpose.
(a) If any good shall be manufactured and/or sold by Seller to meet Buyer’s particular specifications or requirements and is not part of Seller’s standard line offered by it in the usual course of Seller’s business, buyer shall defend, protect and save harmless Seller against all suits at low or in equity and from all damages, claims, and demands for actual or alleged infringement of any United States of foreign patent, and shall defend any suit or action which may be brought against Seller for any alleged infringement because of manufacture and/or sale of the goods covered thereby.
(b) Seller has no knowledge as to trademark or patent rights that third parties may claim in the goods. Consequently, Seller makes no warranty whatsoever with respect to the freedom of the goods from claims of infringement by third parties arising from trademark, patent or other property rights in the goods covered. Seller shall not be held liable for any claim of infringement by third parties arising from trademark, patent or other property rights in the goods covered.
This Agreement may be modified only with the written consent of both Buyer and Seller.
12. GOVERNING LAW.
The terms and conditions stated herein and the rights, remedies, and duties of Buyer and Seller are governed by the laws of the state of Georgia. Any action, suit or proceeding relating to, arising out of or in connection with this agreement may be brought by Seller against Buyer in the appropriate federal or state court in Richmond or Columbia Counties, Georgia. Buyer hereby waives any objection to jurisdiction or venue in any proceeding before said courts.
13. DEFAULT BY BUYER.
On default by Buyer (failure to accept delivery, failure to make payment for delivery, failure to fulfill the terms and condition of this agreement), Seller shall be under no obligation to make further shipments, and may elect at any time to cancel all or any part of the unfulfilled specifications of Buyer with Seller, and proceed for the collection of the amount unpaid on shipments previously made. The remedies set forth herein are cumulative of any and all rights or remedies of Seller as provided by law. The rights and remedies of Seller may be enforced successively or cumulatively and the adoption of one of more rights or remedies shall not operate to prevent Seller from exercising any other or further right of remedy.
14. INSECURITY OF SELLER.
In the event Seller deems himself insecure, Seller may refuse delivery of the goods covered by this agreement except for cash, including payment of all goods theretofore delivered under the contract. “Insecurity” in this context shall mean a good faith belief that the prospect of payment is impaired . Seller shall provide Buyer with notice whereupon Buyer shall pay for future deliveries in cash and upon failure of Buyer to do so, Seller may cancel this agreement and hold Buyer liable for the breach.
15. STATUTE OF LIMITATIONS.
If Buyer desires to bring an action against Seller for breach of this agreement, the time within which the action shall be commenced shall be one (1) year after the accrual of the cause of action. This reduced statute of limitations period is established by mutual agreement of the parties. Buyer’s right of action for the breach of this agreement shall accrue when Seller breaches, whether or not the Buyer is aware of the breach at that time. A cause of action for breach of warranty shall accrue on tender of the goods unless future performance of the goods is warranted, in which cases the cause of action accrues when the breach should have been discovered. Seller’s right of action shall remain as set forth under § 11-2-725 of the Official Code of Georgia.
16. SUCCESSORS IN INTEREST.
This agreement shall inure to the benefit of the successors and assigns of the respective parties.
17. ATTORNEY FEES.
If suit is brought by Seller for the recovery of any payment due under this agreement or for the breach of any provision of this agreement, Buyer agrees to pay all costs in connection with suit, including fifteen (15%) attorney’s fees,whether or not the suit proceeds to judgement.
Time of performance is of the essence.
This agreement shall continue indefinitely, and may not be terminated by the action of either party unilaterally. Both parties must act together or terminate this agreement, and a termination may be accomplished only by a writing signed by both parties.
Should any provision of this Invoice by declared void, invalid or unconscionable, for any reason, by any court or other tribunal, the remaining provisions of the agreement shall not be affected thereby and shall remain in full force and effect.
21. MATERIAL SAFETY DATA SHEETS AND WARNING LABELS.
Buyer acknowledges receipt of Seller’s material safety data sheets (MSDS) and warning labels for all products shipped pursuant to this invoice and agrees to inform its workers and other exposed to these products in the course of Buyer’s business of the contents of these MSDS and warning labels. Seller shall not be liable to Buyer or any other person for personal injury or property damage incurred in connection with use, treatment, storage, handling, or disposal of the products after their delivery to Buyer and Buyer hereby agrees to indemnify Seller against any and all such claims.
Seller’s failure or delay in asserting any right or remedy available shall not constitute waiver of any right or remedy available to it.
23. ESTIMATE DISCLAIMER.
Any estimate given to Buyer by Seller is designed solely to provide the Buyer with a rough estimate of the amount of materials used in a given project. The material estimate is based upon calculations or data provided by the Buyer and such estimate assumes, among other things, normal and typical building and construction techniques. The actual amount of material used may vary from the material estimate due to a number of factors. Consequently, no representation or warranty has been made by Seller that the actual amount of material used will not vary from the estimate.