Terms and Conditions of Sale

SUMMIT GYPSUM SUPPLY, LLC 

TERMS AND CONDITIONS OF SALE

 

1. Payment terms:  1% 10th Prox. Net 30 days E.O.M and is subject to the approval of seller.  Balance on past due accounts shall be subject to payment of interest at the rate of 1-1/2% per month beginning the first day after the invoice due date.  In the event the service of an attorney or collection agent becomes necessary to secure payment of this account or any invoice or to enforce the terms hereof, there shall be added to the amount due and be collectible therewith any such attorneys’ fees, which in any event shall be at least 33% of any amount so due by Buyer.

2. Prices are subject to change at any time by seller with out notice to buyer. Buyer shall pay price in effect at time of shipment. Buyer is responsible to pay directly to all jurisdictions any sales and use taxes where seller is not authorized to collect such tax and has not invoiced to buyer.  Buyer agrees to indemnify and hold harmless any such taxes or charges. 

3. All Goods are sold “As Is”:  However, goods will be accepted for return if they are unused, in resalable condition, and current production items, but in no event will goods be accepted for return on special orders, or on returns after ten (10) days from the date of delivery.  A 20% handling and bookkeeping charge will be made on all accepted returns. A rejection of the goods by Buyer shall not be effective unless it is made and written notice thereof is given to Seller within 5 calendar days of delivery.

4. The Buyer acknowledges that the Seller retains the absolute right to limit the amount of credit or refuse further credit to the Buyer at any time or to require payment in full as a condition of shipment or repair of items purchased.  Seller shall not be required to proceed with performance of this Contract while Buyer is in default under its credit terms or under this or any other Contract with Seller or upon the suspension of business on insolvency or liquidation of Buyer.  Buyer waives any claim for cost of cover or delays in deliveries of custom or special orders resulting from Seller’s cancellation or suspension of such orders due to Buyer’s default in its credit terms.  Each delivery hereunder shall constitute a separate Contract and placement of this order shall be deemed Buyer’s acceptance of these terms and conditions regardless of whether Buyer has received an acknowledgment of this order from Seller at the time of the order.  Any additional orders of the goods sold hereunder whether such order results from shortages due to Buyer’s error or fault, or replacements or additions required by Buyer shall constitute separate contracts for which Buyer shall be obligated, and Seller may recover for each such shipment as a separate transaction without reference to other shipments.  These terms are the sole Contract between Seller and Buyer and no change of the terms hereof shall be affected by the acknowledgment or acceptance by Seller of any purchase order or other form submitted by Buyer containing additional or different terms.  Course of dealing, usage of trade or course of performance shall not supplement, vary or explain these terms.  The foregoing shall not affect any other conditions or agreements Seller may require Buyer to sign in order to consider or permit the sale of materials to Buyer and these terms will supplement such other conditions or agreements.

5. AS TO ANY GOODS SOLD HEREUNDER, THE SELLER MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.  BUYER ACKNOWLEDGES THAT BUYER IS MAKING THIS PURCHASE BASED UPON BUYER’S SPECIFICATIONS TO SELLER OF THE GOODS REQUIRED BY BUYER AND NOT BY REASON OF ANY STATEMENT MADE BY OR ON BEHALF OF SELLER AS TO THE MERCHANTABILITY, SPECIFIC ATTRIBUTE OR OTHERWISE OF SAID GOODS. 

6. AS TO ANY GOODS SOLD HEREUNDER, THE BUYER RELEASES SELLER FROM ANY LIABILITY HEREUNDER FOR PERSONAL INJURIES, KNOWN OR UNKNOWN, AND DAMAGE TO PROPERTY REAL OR PERSONAL CAUSED BY OR ARISING FROM THE GOODS SOLD HEREUNDER AND AGREES NOT TO SUE SELLER UNDER ANY THEORY OF STRICT LIABILITY IN TORT, NEGLIGENCE, CONTRACT OR OTHERWISE FOR ANY CLAIM OR DEMAND FOR PERSONAL INJURIES, BUSINESS LOSSES AND PROPERTY DAMAGE WHICH IN ANY MANNER ARISES OUT OF THE SALE, USE, APPLICATION, TRANSPORTATION OR OTHERWISE OF THE GOODS SOLD HEREUNDER.  THE FOREGOING DISCLAIMERS OF WARRANTY AND DISCLAIMER OF LIABILITY SHALL BE BINDING UPON THE BUYER AND ANY SUCCESSORS IN TITLE, ASSIGNS, TRANSFEREES, AND ULTIMATE USERS. 

7. Buyer hereby indemnifies and holds Seller harmless from any and all property damages or personal injury claims, awards or judgments including all fines, penalties and attorneys’ fees of any kind arising from Seller’s sale and/or delivery of the goods under this Contract.

8. All special orders are not cancelable upon acceptance by Seller.  Seller prior to acceptance of any special order may require a deposit from Buyer in such amounts as Seller deems appropriate.  Due to the nature of special orders and difficulty in fixing actual damages to Seller if Buyer should attempt to cancel a special order the deposit shall be forfeited to Seller as liquidated damages.

9. Seller shall not be responsible for any delays in delivering or for any consequential or special damages.  In addition to the foregoing, Seller shall not be liable for, without limitation, damage to driveways, sidewalks, walkways, lawns, sprinkler systems, garden, septic systems, drain fields, shrubbery, flower beds, and any other structure, buildings, or portions thereof, as a result of Sellers’ delivery equipment. 

10. Risk of loss to all goods sold shall pass to Buyer upon delivery to carrier at point of shipment whether or not Seller pays any part of the freight unless such materials are delivered by Seller’s trucks, in which case, risk of loss in such materials shall remain and be in Seller and shall pass to Buyer upon delivery to Buyer at Buyer’s destination point.  If Buyer requires a means of transportation other than that selected by Seller then, any extra cost incurred by reason of using other means shall be paid by Buyer.  Seller shall retain a purchase money security interest in all goods until same are fully paid by Buyer.  On Seller’s request, Buyer shall execute any documents required by Seller to perfect such security interest in the goods and where permitted, Buyer hereby authorizes Seller to sign and file, without Buyer signing, financing statements to perfect Seller’s purchase money security interest.  On demand, Buyer shall pay to Seller any expenses of preparing and filing of such statements.

10. This Contract shall be governed by and construed in accordance with laws of the State of New Jersey.

11. Unless Buyer notifies Seller in writing to the contrary prior to making a purchase, Buyer hereby represents and warrants that any employee or agent action on Buyer’s behalf shall be deemed to be authorized by Buyer and Seller may rely upon such representation.