PRIMESOURCE TERMS AND CONDITIONS OF SALE
SELLER’S ACCEPTANCE OF BUYER’S ORDER (“ORDER”) IS EXPRESSLY CONDITIONED ON BUYER’S ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS OF SALE (“TERMS”), INCLUDING THOSE WHICH ARE DIFFERENT FROM OR IN ADDITION TO ANY TERMS AND CONDITIONS OF BUYER. SELLER HEREBY OBJECTS TO ANY TERMS AND CONDITIONS OF BUYER WHICH ARE IN ADDITION TO OR DIFFERENT FROM THOSE APPEARING HEREIN. SELLER SHALL NOT BE SUBJECT TO ANY PROVISIONS OF SUCH TERMS AND CONDITIONS UNLESS SELLER AGREES TO SUCH TERMS IN WRITING.
I. APPLICABILITY. These Terms are the only terms which govern the sale of the goods (“Products”) by PrimeSource Building Products, Inc. (“Seller”) to the buyer (“Buyer”) named on the accompanying confirmation of sale accompanying these Terms (such document, the “Sales Confirmation”). The Sales Confirmation and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its Order or such terms and conditions. Fulfillment of Buyer’s Order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
II. PRICE; TAXES. Buyer shall purchase the Products from Seller at the price(s) set forth in Seller’s most current published price list in force as of the date of the Order (“Prices”). All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets. In the event Buyer is legally exempt from paying sales tax, Buyer shall provide to Seller a duly authorized sales and/or use exemption certificate. BUYER AGREES TO INDEMNIFY AND HOLD SELLER HARMLESS FROM LIABILITY FOR TAXES, OTHER THAN TAXES ON NET INCOME OF SELLER, ASSESSED IN CONNECTION WITH THIS AGREEMENT AND THE LEGAL FEES OR COSTS INCURRED BY SELLER IN CONNECTION THEREWITH.
III. PAYMENT. Buyer shall pay all invoiced amounts due to Seller upon receipt of Seller’s invoice. Buyer shall make all payments hereunder by check or wire transfer of immediately available funds in U.S. dollars to the account and address directed by Seller. Buyer shall not withhold payment of any amounts due and payable by reason of any set off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise. If Buyer fails to make payment in accordance with this Agreement, or any collateral agreement, or fails to comply with any provision hereof, Seller may, at its option (and in addition to all other remedies available under these Terms or at law), cancel any unshipped portion of Buyer’s Order, and Buyer shall remain liable for all unpaid accounts. A finance charge will be assessed at the lesser of the rate of 3.0% or the maximum rate allowed under applicable law. The total price of the Products for each shipment constitutes a separate debt owing to Seller and shall be paid in full without right of set-off or deduction whatsoever regardless of any controversy relating to other delivered or undelivered Products.
IV. SHIPMENT AND DELIVERY. Unless otherwise agreed in writing by the parties, all Orders will be delivered to the address set forth on the Sales Confirmation (the “Delivery Point”). Seller will deliver the Products within a reasonable time after receipt of Buyer’s Order using Seller’s standard methods for packing and shipping such Products. Seller shall not be liable for any delays, loss or damage in transit. Deliveries delayed by Buyer shall be at Buyer’s sole risk and expense. Buyer shall take delivery of the Products upon Seller’s Notice that the Products have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Products at the Delivery Point. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s Order.
V. QUANTITY DISCREPANCIES. If Seller delivers to Buyer a quantity of Products within 10% of the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Products or any portion of them by reason of the surplus or shortfall and shall pay for such Products the price set forth in the Sales Confirmation adjusted pro rata.
VI. TITLE AND RISK OF LOSS. Delivery of the Products shall be made EXW Seller’s facility (Incoterms 2010). Unless otherwise set forth in an applicable Sales Confirmation, Seller shall not be liable for any Product(s) lost, damaged, or destroyed while in transit, and Buyer acknowledges and agrees that any risk of such loss, damage, or destruction transfers to, and is assumed by, Buyer upon delivery of Product(s) to a common carrier or when otherwise placed in transit. As collateral security for the payment of the Products, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted hereunder constitutes a purchase money security interest under the Uniform Commercial Code (“UCC”).
VII. INSPECTION AND REJECTION OF NONCONFORMING PRODUCTS. Buyer shall inspect the Products within 5 days of receipt (the “Inspection Period”). Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Products” means only the following: (1) any product shipped that is different than identified in Buyer’s Order; or (2) any product whose label or packaging incorrectly identifies its contents. If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (a) replace such Nonconforming Products with conforming Products, or (b) credit or refund the Price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to the Delivery Point. If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Buyer’s shipment of Nonconforming Products, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Products to the Delivery Point. Buyer acknowledges and agrees that the remedies set forth in this Section VII are Buyer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided under this Section VII, all sales of Products to Buyer are final and Buyer has no right to return Products purchased under this Agreement.
VIII. LIMITED WARRANTY.
A. Seller warrants that for a period of one (1) year from date of shipment (“Warranty Period”), the Products will materially conform to Seller’s published specifications in effect as of the date of shipment; provided, that: (i) the Products have not been subject to accident, misuse, abuse, neglect, deterioration by chemical action or damage during shipping, nor have they been used for a purpose other than for which they were designed; (ii) Buyer, within the Warranty Period, provides Seller with a reasonably detailed written statement of the nature of the Buyer’s claim; (iii) Buyer preserves such Products for Seller’s inspection; and (iv) Buyer does not alter or attempt to repair any such Products. Seller shall, at Seller’s option, (a) refund amounts paid at the pro rata contract rate, or (b) replace or repair at Seller’s location or on site (at Seller’s option) any Products, subject to Buyer’s claim properly brought under this Section VIII(A). SELLER MAKES NO OTHER WARRANTY OF ANY KIND WHATEVER, EXPRESS OR IMPLIED, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHICH EXCEED THE ABOVE OBLIGATION ARE HEREBY DISCLAIMED BY SELLER AND EXCLUDED.
B. Products manufactured by a third party (“Third Party Products”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Products. Third Party Products are not covered by the warranty in Section VIII(A). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. THE REMEDIES SET FORTH IN SECTION VIII(A) SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH BY SELLER OF THIS AGREEMENT.
C. ANY LEGAL ACTION WITH RESPECT TO A TRANSACTION CONTEMPLATED HEREIN OR IN CONNECTION WITH ANY RELATED TRANSACTION WITH SELLER MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
IX. PATENT INDEMNIFICATION AND TRADEMARK USAGE. BUYER SHALL DEFEND, INDEMNIFY AND HOLD SELLER HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, DEBTS, OBLIGATIONS OR LIABILITIES ARISING OUT OF ALLEGED INFRINGEMENT OR CONTRIBUTORY INFRINGEMENT OF SELLER’S PATENTS OR TRADEMARKS CONNECTED WITH THE MANUFACTURE, SALE OR USE OF ANY PRODUCT WHICH IS MANUFACTURED PURSUANT TO A DESIGN SPECIFIED BY BUYER, ALTERED BY BUYER OR INSTALLED IN COMBINATION WITH OTHER DEVICES OR PRODUCTS.
X. DAMAGES; LIMITATION OF LIABILITY. If Buyer cancels an Order or, for a period of ninety (90) days, is unable to fulfill its obligations under this Agreement for any reason, Seller shall have the right, in its sole discretion, to terminate this Agreement, and Buyer agrees to pay Seller the purchase price for all Products previously delivered and a cancellation charge equal to the greater of: (1) the cost of the percentage of completion of the undelivered portion of the Order (as estimated by Seller); or (2) 25% of the list price of the Products included in the undelivered portion of the Order. Additionally, Buyer shall pay any cancellation charges which may be charged back to Seller by other manufacturers. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, THE PURCHASE PRICE FOR THE DEFECTIVE OR NONCONFORMING PRODUCT(S) SOLD HEREUNDER. The limitation of liability set forth in this Section X shall not apply to liability resulting from Seller’s gross negligence or willful misconduct
XI. COMPLIANCE WITH LAW. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
XII. TERMINATION. In addition to its other remedies hereunder, Seller may terminate this Agreement with immediate effect upon Notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (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.
XIII. FORCE MAJEURE. Seller shall not be liable for any delays in making delivery where occasioned by strikes, differences with workers, or any causes beyond the control of Seller, including, but not limited to, fires, floods, accidents, action of any governmental authority, war, insurrection or riots, or shortages of labor, energy, raw materials, production facilities, or transportation (each, a “Force Majeure”). Where a Force Majeure is caused by labor difficulties, Seller shall not be obligated to seek or obtain any settlement which, in Seller’s sole judgment, is not in Seller’s best interest. In the event of a Force Majeure, (i) Buyer shall accept as full and complete fulfillment of its Order such portion of the Products as Seller is able, under the circumstances, to procure and deliver in accordance with its obligations, (ii) Seller may, at its option, cancel this Agreement or any part thereof without any liability to Buyer resulting therefrom, and (iii) Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement.
XIV. NOTICE OF DAMAGES; ADDITIONAL INDEMNIFICATION. Buyer shall notify Seller promptly, and in any event within thirty (30) days, of any accident or malfunction involving the Products which results in personal injury or damage to property and shall cooperate fully with Seller in investigating and determining the cause of such accident or malfunction. IN THE EVENT BUYER FAILS TO GIVE SUCH NOTICE TO SELLER AND SO TO COOPERATE, BUYER AGREES TO INDEMNIFY AND SAVE SELLER HARMLESS FROM ANY CLAIMS ARISING FROM SUCH ACCIDENT OR MALFUNCTION.
XV. CONFIDENTIAL INFORMATION. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return or destroy all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section XV. This Section XV does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
XVI. INTERNATIONAL SALES. The terms and conditions in this Section XVI apply only to export shipments. Notwithstanding any provision stated above, inspection by Buyer and final acceptance is to be at the Delivery Point prior to shipment. After shipment is made, whether or not Buyer has inspected the Products, Seller shall have no liability or responsibility to Buyer for damages of any kind caused by any defect or condition which such inspection should have revealed. Buyer assumes all responsibility for shipments of Products requiring any government import clearance. Buyer shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by Buyer and shall, at its own expense, obtain all licenses, permits and any other documents required for the export or import of the Products. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Products. Seller reserves the right to place in storage for Buyer’s account and at Buyer’s expense any Products not timely shipped in accordance with these Terms if such delay is not the fault of Seller. The Seller reserves all rights any drawback of U.S. customs duties, if obtainable.
XVII. CHOICE OF LAW; VENUE; ARBITRATION. The provisions hereof shall be construed in accordance with the laws of the State of Texas, including, without limitation, the UCC as enacted in said jurisdiction, to the exclusion of any rules on conflict of laws of the State of Texas and the U.N. Convention on the International Sale of Goods. Any claim or controversy arising out of or relating to this Agreement, any breach thereof or the Products shall be settled by arbitration, to be held and conducted in Dallas County, Texas, in accordance with the rules of the American Arbitration Association.
XVIII. NOTICES. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or e-mail (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section XVIII.
XIX. MISCELLANEOUS. If any provision of this Agreement is held to be in conflict with, or invalid, illegal or unenforceable under, any applicable law, such provisions shall be of such force and effect to the maximum extent permissible by such jurisdiction and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. This Agreement is not assignable by Buyer without the prior written consent of Seller. Any purported assignment in violation of this Section XIX is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by a duly authorized agent of Seller. The forbearance or failure of Seller to enforce any of the terms and conditions of this Agreement or to exercise any right accruing from any default of Buyer shall not affect or impair Seller’s rights in case such default continues or in case of any subsequent default of Buyer and such forbearance or failure shall not constitute a waiver of other or future defaults of Buyer. This Agreement may be modified, amended or rescinded only by a writing which specifically states that it modifies, amends or rescinds (as applicable) these Terms and is signed by a duly authorized agent of each party. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by service of these Terms. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.