SALES TERMS AND CONDITIONS
1. Sale Terms and Conditions. Any quote or other offer issued by Seller to Buyer for sale of the Materials (as defined below) (“Quote”) includes and is governed by the express terms contained on the face of the Quote, the terms and conditions stated in Buyer’s Credit Application/Guaranty and Agreement (the “Credit Agreement”), if applicable, the terms and conditions in any documents provided by Seller to Buyer relating to the delivery or shipment of materials (the “Shipping Documents”), and these Terms and Conditions. The Quote does not constitute an acceptance of any prior offer, proposal or purchase order by Buyer, and Seller objects to and rejects any additional or different terms in such prior offer, proposal or purchase order. The Quote, the Credit Agreement, if applicable, the Shipping Documents, if applicable, and these Terms and Conditions (collectively, the “Agreement”) comprise the entire agreement between the parties. The Agreement supersedes all prior agreements, orders, quotations, proposals, purchase orders and other communications concerning the Materials, and there are no other understandings or agreements, verbal or otherwise. Except as expressly excluded herein, all sales of Materials shall be subject to these Terms and Conditions.
2. Acceptance. Any acceptance of the Quote, a purchase order or other request for Materials is limited to and conditioned upon Buyer’s acceptance of these Terms and Conditions. Buyer accepts the Quote, including these Terms and Conditions, by signing and returning the Quote, by accepting the Quote by email or portal.fast-weigh.com by sending a purchase order in response to the Quote, by submitting a purchase order for Materials to Seller without a formal Quote, or by instructing Seller to begin work. No terms, conditions or warranties other than those contained in the Agreement and no agreement or understanding, oral or written, in any way purporting to modify the Agreement, whether contained in Buyer’s purchase order or shipping release forms, or elsewhere, shall be binding on Seller unless hereafter made in writing and signed by Seller’s authorized representative. Seller expressly rejects any term or condition that is in addition to, or inconsistent with the Agreement, and to any other term or condition proposed by Buyer in accepting the Quote. Neither Seller’s subsequent lack of objection to any terms or conditions, nor the delivery of the Materials shall constitute an agreement by Seller to any such term or condition.
3. Pricing. Except as otherwise stated in the Agreement, prices for and quantities of Seller products sold by Seller to Buyer (the “Materials”) are based on the full amounts estimated to be required for the job or for the quantities described in the Quote, plus or minus 10% of such quantities for other Materials. Prices for aggregate product reflect Buyer’s acceptance of Materials at the Seller’s facility based upon gradation analysis performed and reported by Seller’s certified plant quality control personnel, and any penalties that result from in place sampling shall be the full responsibility of Buyer. Such prices are available only to Buyer and are only for quantities referenced in the Quote. Unless a “delivered” price is quoted by Seller in the Quote, all prices are F.O.B. point of shipment from Seller’s facility. All taxes applicable to the sale or delivery of materials are payable by Buyer, unless Buyer provides Seller with satisfactory evidence of exemption from same. All taxes applicable to the sale of delivery of Materials that are not paid directly by Buyer will be added to the sales price, invoiced to and paid by Buyer, unless Buyer provides Seller with satisfactory evidence of exemption from same. Seller may change the price and/or quantity upon thirty (30) days’ written notice to Buyer for any reason, including for (without limitation) fuel surcharges and costs of materials. Seller shall also have the right to change, modify or amend any other terms and conditions upon written notice of such change to Buyer. Credit will not be issued for any Materials returned to Seller by Buyer for any reason that is beyond the control of Seller. Buyer shall pay to Seller all amounts due under this Agreement, including applicable taxes. Payment terms are NET 30 from date of invoice. Any amounts not paid when due shall accrue interest at a rate of eighteen percent (18%) per annum. If at any time Seller determines, in its sole discretion, that Buyer’s solvency or ability to perform is unsatisfactory to Seller, then Seller may require payment in advance, additional security or collateral, or a guarantee that invoices will be paid when due. Seller may suspend performance until such assurances are provided.
4. Delivery. All deliveries are contingent upon Material availability and shall be made during regular non-holiday work hours, Monday through Friday. Additional charges may apply for deliveries required outside of regular work hours. Buyer must give Seller at least forty-eight (48) hours advance notice of the time and date of delivery. If for any reason Buyer must cancel the delivery, Buyer must notify Seller at least twenty-four (24) hours in advance of the scheduled delivery time. Failure to provide advance notifications will result in the imposition of a cancellation charge to cover the costs incurred in connection with the cancellation and lost revenue as a result of the cancellation. All deliveries will be made to the best of Seller’s ability. Seller will deliver the Materials only to the curb or public street line adjacent to the project. In the event Seller is requested to deliver the Materials beyond the curb or public street adjacent to the project, Buyer (i) shall provide and maintain a safe and reliable means of access for Seller’s trucks, (ii) hereby releases, indemnifies, and holds harmless Seller from and against any and all liability for damages to the property arising out of or in connection with Seller’s delivery, and (iii) shall pay for any damages to Seller’s trucks and any costs incurred by Seller for any towing or other costs incurred arising out of such delivery. Seller may, in its discretion, refuse to make deliveries when there exists unsafe or unreliable road or site conditions, issues of right to access, or other matters outside of Seller’s control adversely affecting Seller’s delivery (including, without limitation, Material shortages, labor troubles, accidents, necessary repairs to machinery, fire, flood, weather conditions, natural phenomena).
5. Credit and Breach. Seller shall have no obligation to ship or deliver the Materials to Buyer except upon its determination prior to each shipment or delivery that Buyer is worthy of the credit to be extended. In addition to all other remedies available to Seller (which Seller does not waive by the exercise of any rights hereunder), Seller may suspend shipment or delivery of any Materials if Buyer fails to pay any amounts when due or breaches any other obligation to Seller. Buyer shall pay all attorney’s and other costs of collection incurred by Seller as the result of Buyer’s failure to pay any amounts when due or any other breach by Buyer of its obligations to Seller.
6. WARRANTY AND DISCLAIMER. Seller warrants that the Materials, when delivered, substantially comply with the specifications set forth in the Agreement (the “Specifications”) (the “Limited General Warranty”). EXCEPT FOR THE LIMITED GENERAL WARRANTY, SELLER MAKES NO WARRANTY WHATSOEVER AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING AND EXCEPT FOR THE LIMITED GENERAL WARRANTY, SELLER MAKES NO WARRANTY WHATSOEVER. In the event of any breach of the Limited Warranty, provided Buyer provides Seller written notice of such breach within a reasonable time after delivery not to exceed 10 days, Seller shall, in its sole and absolute discretion, either (i) replace the non-conforming Materials with conforming Materials, (ii) refund the amount paid for the non-conforming Materials, or (iii) credit Buyer for the amount paid for the non-conforming Materials. In any such instance, Seller shall have no further liability. THIS REMEDY IS BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE LIMITED WARRANTY.
7. LIMITATION OF LIABILITY. BUYER AGREES THAT SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE OR LOSS DUE TO JOB DELAYS OR USE OR UNDER-UTILIZATION OF LABOR ARISING OUT OF THIS CONTRACT, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE. IT IS FURTHER AGREED THAT SELLER SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO BUYER OR ANY OTHER PARTY FOR AN AMOUNT GREATER THAN THE AMOUNT PAID BY THE BUYER UNDER THE AGREEMENT FOR THE MATERIALS FROM WHICH THE CLAIM AROSE, AND TO THE FULL EXTENT PERMITTED BY LAW, BUYER WAIVES ALL CLAIMS FOR LIABILITY IN EXCESS OF THE AMOUNT PAID FOR SUCH MATERIALS UNDER THIS CONTRACT.
8. Duty to Inspect. Buyer agrees to inspect and test all Materials upon receipt in accordance with this Agreement and agrees to promptly, but in any event no later than ten days from receipt, notify Seller in writing of any alleged failure of the Materials to conform to the Limited Warranty and/or any failure by Seller to comply with the Agreement. In the event Buyer fails to timely provide such notice, Buyer shall be deemed to have irrevocably waived any claim that the Materials did not conform to the Limited Warranty and/or that Seller failed to comply with the Agreement.
9. Indemnity. Except to the extent caused by the gross negligence or willful misconduct of Seller, Buyer shall indemnify, defend and hold harmless Seller, its officers, agents and employees, from all claims, damages, liability, actions, loss, costs, and expenses, including attorney’s fees, arising out of the delivery or use of the Materials, including, but not limited to, those asserted by the end user of the Materials.
10. Force Majeure. Seller shall have no liability for delay or failure to make shipments or delivery, as a result of strikes, severe weather conditions, casualty, labor problems, mechanical breakdowns, fires, floods, accidents, epidemics or pandemics, actions of any governmental authority, war, insurrection or riots, or shortages of labor, energy, raw materials, production facilities, or transportation, or any other condition beyond Seller’s reasonable control.
11. Governing Law; WAIVER OF JURY TRIAL; Venue. The Quote and Agreement shall be governed by and construed in accordance with the laws of Alabama. BUYER AND SELLER WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER CONCERNING ANY MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE QUOTE, AGREEMENT, AND/OR THE MATERIALS. The exclusive venue for any proceeding, action or counterclaim concerning any matters arising out of or in any way connected with the Quote, Agreement, or the Materials shall be a federal or state court located in Madison County, Alabama. Buyer (i) agrees not to commence any action, suit, or proceeding relating thereto except in such courts, (ii) submits to the personal jurisdiction and venue of such courts for such purposes, and (iii) waives all claims (by way of motion, as a defense or otherwise) of improper venue, that any such court is an inconvenient forum, and that such party is not subject personally to the jurisdiction of any such court.
12. Assignment. This Agreement shall inure to the benefit of and shall be enforceable by the parties and their respective successors and permitted assigns; provided, however, Buyer may not assign this Agreement (including Buyer’s rights and obligations hereunder), whether by operation of law or otherwise (including by merger, sale of substantially all assets, sale of substantially all equity, or change of control), without the prior written consent of Seller.
13. Miscellaneous. Seller is an independent contractor selling Materials and nothing contained in this Agreement is intended to create any other relationship between Seller and Buyer. Seller is only a Seller of materials and shall not be considered a sub-contractor for any purpose. Any notices shall be in writing and delivered by overnight courier or by personal delivery at each party’s address provided in the Agreement. If any provision herein is held to be illegal, invalid or unenforceable under present or future laws, such provision shall be fully severable and this Agreement shall be construed and enforced as if such provision had never been a part hereof. The failure of Seller to enforce any provision of this Agreement shall not be construed as a waiver or limitation of Seller’s right to subsequently enforce strict compliance with every provision of this Agreement. The Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into the Agreement. The express terms of the Agreement control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms of the Agreement.