These terms and conditions are effective from September 22, 2017.
A quotation issued by Oldcastle Precast, Inc. may contain a description of Products, as defined herein below, and applicable prices of Products offered for sale by Oldcastle Precast, Inc. The quotation may also include delivery details and may contain special conditions (if any). The quotation may also include attachments (if any) referenced therein. Any sales of Products by Oldcastle Precast, Inc. will be in accordance with any terms and conditions included within a quotation issued by Oldcastle Precast, Inc., as supplemented by these Standard Terms and Conditions:
1. Applicability. These Standard Terms and Conditions (“Terms”) shall apply to all Products provided by Oldcastle Precast, Inc. (“Seller”) and may be changed from time to time at Seller’s sole discretion. As used herein, the term “Products” shall mean an item or items offered for sale by Oldcastle Precast, Inc. and services associated therewith. These Terms and any written quotation, confirmation of sale, or invoice authored by Seller comprise the entire agreement between Seller and its Customers, and supersede all prior or contemporaneous communications, understandings, agreements, negotiations, representations and warranties. As used herein, the term “Customer or Customers” shall mean a person, organization, or entity that purchases Products from Seller. These Terms prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms.
2. Payment. Payment terms are net 30 days from date of purchase or sooner as may be required by applicable law. Late payments shall accrue a finance charge of one and one-half percent (1½%) per month or the highest rate allowable by law, whichever is less. Seller shall be entitled to recover all costs and expenses, including reasonable attorneys’ fees, arising out of Customer’s failure to make all payments due in a timely manner.
3. Taxes. Customer is responsible for payment of all taxes and duties of any nature whatsoever, including any local, state and federal taxes. Customer agrees to indemnify and hold Seller harmless from any and all costs and expenses associated with any levy or attempted levy of any such taxes on Seller.
4. Suspension; Termination. In addition to any other remedies available to Seller, Seller may suspend or terminate any order for Products with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due for Products (or any other agreement Customer has with Seller); (ii) has not otherwise performed or complied with any of these Terms (or complied with the terms of any other agreement Customer has with Seller); (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors; or (iv) exhibits other adverse credit conditions that are unsatisfactory to Seller, as determined by Seller in its sole discretion.
5. Shipment; Delivery Conditions. Unless otherwise agreed in writing, all Products purchased by Customer shall be FOB Seller’s plant sourcing the Product. If FOB Destination, the Customer agrees to provide suitable roadways or approaches to points of delivery. Seller reserves the right to cease deliveries if Seller concludes, in its sole opinion, that the roadways or approaches are unsatisfactory. In the event Customer orders delivery beyond curb line, Customer assumes, to the maximum extent allowed by law, liability for damages to sidewalks, driveways or other property, and / or loss and expense incurred as a result of such deliveries. Prices quoted are based on prompt unloading of trucks, and in case repeated delays in unloading, deliveries may be discontinued until conditions are corrected. Delays of more than 20 minutes are subject to an additional charge.
6. Title and Risk of Loss. In the case of FOB plant sales, title and risk of loss passes to Customer at the time the Products are loaded into Customer’s, or Customer’s agents’, vehicles, barges or other modes of transport; or, in the case of FOB Destination, upon delivery of the Products at Customer’s location.
7. Warranty. Seller warrants that the Products will conform to the specifications provided to Seller prior to manufacture or shipment of the Products. Seller’s obligation to meet the applicable specifications supersede any and all other warranties. SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSES. Customer shall verify that Seller’s Products comply with the plans and specifications prior to installation. Changes to the plans and specifications shall be made by written change order and Seller shall be entitled to an equitable price adjustment for such changes. The express limited warranty set forth herein shall be void if Customer fails to pay Seller in full for the Products provided by Seller.
8. Time. If Seller agrees to deliver Products, Seller shall make reasonable efforts to deliver the Products by the specified delivery date and shall provide notice to Customer of any expected delays in delivery. Seller is not responsible for failure to supply Products due to labor disputes, repairs to machinery, fire, flood, adverse weather conditions, inability to obtain transportation, fuel, electric power, or operating materials or machinery at reasonable cost; or by reason of any other cause beyond its control, including the inability to produce Products meeting any applicable specification or requirement. In the event any such contingency should occur, Seller reserves the right to determine the order of priority of delivering to its Customers.
9. Modification. No amendment or modification to these Terms shall be valid or enforceable unless in writing and signed by the party sought to be charged, and no prior or current course of dealing between the parties, or any usage of trade or custom of the industry shall modify or supplement these Terms.
10. No Waiver. The failure of Seller to exercise any right granted hereunder shall not impair or waive Seller’s right to exercise any right at a subsequent time or times.
11. Damages. Seller’s liability for any and all damages related to its Products shall be limited to replacement of Products sold hereunder. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WITH REGARD TO ANY CLAIM ARISING OUT OF OR RELATING TO ITS PRODUCTS.
12. Indemnity. To the maximum extent permitted by applicable law, Customer shall defend, indemnify and hold Seller, its officers, employees, agents, insurers, sureties, and affiliates, harmless from any and all losses, damages, expenses (including attorneys' fees), claims, suits, liabilities, fines and remedial or clean-up costs arising out of or in any way related to: (i) Customerer’s breach of these Terms or any of Seller’s written quotation, confirmation of sale, or invoice; (ii) any act or omission by or on behalf of Customer, its employees, and agents; or (iii) the negligent or alleged wrongful installation of Seller’s Products.
13. Applicable Law. The supplying of Products by Seller and the rights, duties, obligations and remedies of Seller and Customer shall be governed by or construed in accordance with the laws of the state of Seller’s plant sourcing the Products.
14. Miscellaneous. (A) Customer shall be responsible for testing the Products and confirming that the Products comply with Customer’s specifications at Seller’s facility prior to directing shipment. (B) Unless otherwise stated in these Terms or any quote provided by Seller, prices quoted shall be good for a period of thirty days. (C) Prices are based upon estimated quantities. If quantities vary more than ten percent (10%) from estimated quantities, prices are subject to adjustment by Seller corresponding with any resulting increase in Seller’s costs. (D) All funds paid to Customer from a third party, for the Products or any portion of the Products sold to Customer hereunder shall be deemed in trust for the payment of all Products, and such funds shall not become the property of Customer nor may any portion of such funds be used by Customer for any purpose, until full payment is made for all Products sold by Seller to Customer hereunder. (E) For a copy of Safety Data Sheets or label information, please contact Seller at the phone number or address set forth on the written quotation, confirmation of sale, or invoice. Customer agrees to draw to the attention of any persons handling or using the Products or having access to the Products while in Customer’s possession or to whom Customer sells the Products or any part thereof any warning, information of suggestions which are contained or referred to in the Safety Data sheets or label information, or any other literature or packaging relating to the Products.
15. MANDATORY BINDING ARBITRATION. ALL CLAIMS OR CONTROVERSIES ARISING OUT OF OR RELATED TO THE PURCHASE OF PRODUCTS OR SERVICES OF SELLER, SHALL BE SUBMITTED TO AND RESOLVED BY BINDING ARBITRATION BY A SINGLE ARBITRATOR IN THE COUNTY AND STATE OF SELLER’S SOURCE PLANT PRODUCING THE PRODUCT OR SERVICES. THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) SHALL CONDUCT THE ARBITRATION AND THE COSTS OF THE ARBITRATION SHALL BE BORNE EQUALLY BY THE PARTIES. NOTWITHSTANDING ANY LANGUAGE TO THE CONTRARY CONTAINED IN ANY QUOTATION, CONFIRMATION OF SALE, OR INVOICE, THE PARTIES AGREE: THAT THE UNDERLYING AWARD MAY BE APPEALED PURSUANT TO THE AAA’S OPTIONAL APPELLATE ARBITRATION RULES (“APPELLATE RULES”); THAT THE UNDERLYING AWARD RENDERED BY THE ARBITRATOR SHALL, AT A MINIMUM, BE A REASONED AWARD; AND THAT THE UNDERLYING AWARD SHALL NOT BE CONSIDERED FINAL UNTIL AFTER THE TIME FOR FILING THE NOTICE OF APPEAL PURSUANT TO THE APPELLATE RULES HAS EXPIRED.