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Terms & Conditions of
Sale
- All references to Sawyer Metal refer to F.E. Sawyer
Building Systems, Inc. D/B/A Sawyer Metal. All references
to Seller refer to Sawyer Metal.
- The parties expressly agree that none of the following
Terms and Conditions of Sale, nor any Seller written
terms not contained herein, may be waived, modified,
or amended without the express written consent of the
Seller’s President or Executive
Vice-President and CFO.
- Payments due Seller under the terms of this sale
and any other money due Seller by Buyer shall be paid
to Seller at its principal office in Tyler, Smith County,
Texas unless otherwise directed by Seller. The laws
of the State of Texas shall govern this agreement
and performance under this agreement. Buyer consents
to jurisdiction in Texas. Any dispute under this agreement
shall only be brought in the state court of Texas.
The parties hereto agree that venue shall be in Tyler,
Smith County, Texas, for any
and all claims or disputes arising out of all transactions
between Seller and Buyer. Buyer voluntarily agrees
that Tyler, Smith County, Texas, is the most convenient
forum and understands the choice of forum is an integral
and vital part of Seller’s agreement
to sell to Buyer. By agreeing to venue in Tyler, Smith
County, Texas, Buyer fully intends to waive its rights,
if any, to venue in any place other than Tyler, Smith
County, Texas. The parties deem that this agreement
is performable in Tyler, Smith County,
Texas, regardless of whether or not any part of the
agreement is actually performed in Tyler, Smith County,
Texas. In addition, Buyer agrees that Seller’s
prices reflect an analysis of the elimination of uncertainty
regarding the jurisdiction for any dispute.
EACH PARTY HEREBY AGREES NOT TO ELECT A TRIAL BY JURY
OF ANY ISSUE TRIABLE BY JURY AND FULLY WAIVES ANY RIGHT
TO TRIAL BY JURY TO THE EXTENT THAT ANY SUCH RIGHT
NOW OR HEREAFTER EXISTS WITH RESPECT TO THIS AGREEMENT
AND/OR
THE AGREEMENTS, INSTRUMENTS AND DOCUMENTS CONTEMPLATED
HEREBY OR ANY CLAIM, COUNTER CLAIM, OR OTHER ACTION
ARISING IN CONNECTION HEREWITH. EACH PARTY ACKOWLEDGES
AND AGREES THAT IF THIS WAIVER OF RIGHT TO TRIAL
BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY SUCH
PARTY AND IS INTENDED TO ENCOMPASS EACH INSTANCE AND
EACH ISSUE AS TO WHICH THE RIGHT TO TRIAL BY JURY WOULD
OTHERWISE ACCRUE. EITHER PARTY IS HEREBY AUTHORIZED
TO
FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS IRREVOCABLE WAIVER. If Buyer purchases
a Metal Building System only, the terms and conditions
of this purchase order shall also be governed in their
interpretation
by the section titled “Common Industry Practices:
from the Low Rise Building System Manual, latest edition,
published by the Metal Building Manufacturers Association,
1230 Keith Building, Cleveland, Ohio, 44115.
- Buyer agrees that all payments with lien release
language on the back of any check shall be sent only
to the principal office of Seller, in Tyler, Smith
County, Texas. Buyer agrees that any payment accepted
through Seller’s lockbox with lien release language
on the check does not bind Seller to the attempted
release. Seller’s agent at the lock box who endorses
and/or accepts checks for Seller is authorized only
to unconditional payments, and no action by this agent
shall ever give rise to a claim of any
authority, apparent or otherwise, beyond that described
in this paragraph. Acceptance of any conditional check,
including any lien release language or otherwise at
the lock box shall only be a partial release for those
funds received and never otherwise.
This paragraph cannot be waived or modified except
in writing in advance.
- Terms of sale are C.O.D. unless otherwise agreed
to in writing. Any and all credit terms shall be established
at the sole discretion of Seller’s Credit Department.
In the event Seller grants Buyer credit terms, said
credit terms are subject to change at any
time, for any reason, at the sole discretion of Seller
without prior written notice to Buyer. Unless specifically
enumerated herein, the price does not include any taxes
(including excise, privilege, occupation, use, sales,
etc.; Federal, State or local) or costs of
shipment. All materials sold hereunder shall be in
substantial compliance with Buyer’s request.
Additionally, all materials sold hereunder are sold
F.O.B. Seller’s plant. Seller reserves the right
to approve the carrier on all C.O.D. shipments. Buyer
assumes
responsibility for the accuracy of verbal orders unless
written confirmation is received prior to fabrication.
Confirming orders should be marked “Confirming
Order-Do Not Duplicate.”
- Any payments deferred after the due date as specified
herein shall bear interest at the rate of ten percent
(10%) per annum. If an invoice becomes past due, is
placed in the hands of any attorney for collection,
if collected by any legal proceedings, or if
the Agreement is relevant to any other dispute between
the parties, Buyer agrees to pay Seller all of its
attorney’s fees and costs incurred in the collection
of sums owed by Buyer to Seller on account of principal,
interest or other charges. Buyer agrees
that the attorney’s fees incurred by Seller are
reasonable and necessary. “Costs incurred in
the collection of sums” as used herein is not
to be limited to costs incurred in litigation, but
includes, without limitation, copying and mailing expenses,
lien fees,
lost employee time, inspection expenses and expert
witnesses expenses in addition to taxable costs incurred
in litigation.
- Buyer has and does by these presents grant to Seller
and Seller has and does hereby retain a security interest
in all materials, parts and accessories (as well as
all finished goods and/or the proceeds from the sale
thereof) described in and being purchased
by Buyer pursuant to this Agreement. In addition, Buyer
has and does by these presents grant to Seller and
Seller has and does hereby retain a security interest
in all existing or subsequently arising accounts, accounts
receivable and supporting
obligations which may from time to time hereafter come
into existence during the term of this security interest
as a result of Buyer’s sale of any of the said
materials, parts, accessories, or finished goods thereof
to any third party. The security interest herein
granted by Buyer and retained by Seller is to secure
payment of the full purchase price and all other charges
due and owing Seller by Buyer under the terms of this
sale. This agreement is governed by Section 2.101,
et. Seq. of the Texas Business & Commerce
Code, and the security interest hereunder constitutes
a “purchase money security interest” pursuant
to the Uniform Commercial Code. This instrument is
a contract, security agreement and financing statement
between the parties hereto.
- The Buyer or undersigned individual who is either
the credit applicant or a principal/agent of the Buyer,
recognizes that a credit history report may be a factor
in the evaluation of the credit history of the Buyer.
Buyer, therefore, consents to and authorizes
the use of a commercial, consumer or any other credit
report on the Buyer or undersigned individual by Seller
from time to time as may be needed in the credit evaluation
process.
- All orders are subject to approval and acceptance
by Seller. Terms contained within any Purchase Order
issued by Buyer conflicting with these Terms and Conditions
shall be of no force and effect. All sales by Seller
of any nature to Buyer shall be made
under the provisions of this Agreement. Any documents
that Buyer may use from time to time for their convenience,
including but not limited to, purchase orders or sales
acknowledgment forms shall be deemed to be for administrative
convenience only
and the terms and conditions of this Agreement as well
as the terms and conditions as stated in Seller’s
invoices and bills of lading shall supercede and take
precedence over any of Buyer’s terms and conditions
which may be contained on any such forms.
- Seller shall not be liable to Buyer for any incidental,
special, compensatory, consequential, expectation,
exemplary or liquidated damages of any nature. Additionally,
Seller shall not be liable to Buyer for back charges
or loss of use to Buyer arising out
of any alleged misfabrications or delay in carrying
out this contract.
- Under no circumstances shall Seller be liable in
any way to Buyer, building owner, or any other party
for water intrusion or the existence of moisture occurring
prior to delivery of Seller’s material or existing
thereafter or any possible effects resulting
there from (including fungi, mold or mildew), delays,
failure in performance, or loss or damage due to force
majeure conditions including, without limitation: fire;
flood; epidemics; lightening; strike; embargo; explosion;
power surge or failure; acts of God;
war; labor or employment disputes; civil disturbances;
acts of civil or military authority; inability to secure
materials, fuel, products or transportation facilities;
terrorism; act of government, inability to obtain materials;
loss, damage or delay of materials;
acts or omissions of suppliers; or any other causes
beyond Seller’s control, whether or not similar
or relating to the foregoing. FUTHER, BUYER HEREBY
AGREES AND STIPULATES THAT, IN THE EVENT SELLER RECEIVES
NOTIFICATION OF A SCHEDULED PRICE
INCREASE(S) FROM ANY OF ITS SUPPLIERS BETWEEN THE DATE
OF THIS AGREEMENT AND THE DATE SCHEDULED FOR DELIVERY
OF THE MATERIALS COVERED HEREBY, SELLER RESERVES THE
RIGHT, IN ITS SOLE DISCRETION AND JUDGMENT, TO INCREASE
THE PURCHASE PRICE STATED HEREININ AN AMOUNT CORRESPONDING
TO SAID PRICE INCREASE(S). Buyer agrees these limitations
of Seller’s liability are reasonable. Buyer further
agrees that these limitations of Seller’s liability
are material parts of the
consideration for this Agreement and is reflected in
the amounts charged by Seller hereunder. Buyer intends
that these limitations on Seller’s liability
are to be liberally construed in favor of Seller to
eliminate any other liability of Seller other than
repair
or replacement of defective products.
- Either party may cancel an order by giving written
notice to the other party. In the event of such cancellation,
Buyer agrees to pay Seller all costs and damages incurred
by Seller in preparing to perform the terms of the
order and in performing the
terms of the order prior to the receipt by Seller of
such written notice, including but not limited to Seller’s
expenses of purchases of material, labor, fabrication
and overhead.
- All materials sold hereunder to Buyer are final and
cannot be returned to Seller for credit unless Buyer
obtains prior written approval from Seller’s
authorized representative. A 25% restocking fee shall
be charged on all returned materials. Buyer may
arrange for pickup of order at Seller’s plant
or shipment will be made by common carrier - “Freight
Collect” - unless other arrangements are previously
made. If, at Buyer’s request, the delivery of
materials is delayed, then Seller shall have the option
to invoice
Buyer for the price of materials, which invoice shall
be due in accordance with the terms of payment provided
herein. Buyer will reimburse Seller for the cost of
storing materials if shipment is delayed by Buyer,
and will assume any damages to the
materials caused by deterioration.
- Upon receipt of payment in full, Seller warrants
its workmanship only against failure due to defective
material or workmanship for a period of one (1) year
from date of manufacture; however, Buyer’s sole
and exclusive remedy shall be limited to the
repair or replacement of defective part(s), F.O.B.
Seller’s plants (transportation, redesign, dismantling,
disposal of material and installation are not included
and shall be borne and paid for by Buyer). Any such
replacement or repair shall not include any
materials not sold by Seller hereunder, and specifically
excludes any obligation by Seller related to other
property of the Buyer or any property of third parties.
UNDER NO CIRCUMSTANCES SHALL SELLER BE RESPONSIBLE
OR LIABLE TO BUYER, OWNER(S)
OR ANY THIRD PARTY, IN ANY RESPECT FOR, AND SELLER
HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OR
REPRESENTATIONS PERTAINING TO, PRESENT OR FUTURE WATER
LEAKS, OR MOISTURE INTRUSION(S), DAMAGE(S), TO THE
BUILDING(
S), OR ANY COMPONENTS OR CONTENTS THEREOF, OR ANY INTERIOR
SPACE(S) OR PROPERTY THEREIN, INCLUDING CLAIMS PERTAINING
TO MOLD, MILDEW OR FUNGI, OR INTERRUPTION IN THE USE
OF THE BUILDING(S) OR PERSONAL INJURY OR PROPERTY
DAMAGE CLAIMS RESULTING FROM THE ALLEGED EXISTENCE
OR GROWTH OF MOLD, MILDEW AND/OR FUNGI. As a condition
precedent to the effectiveness of any warranty provided
herein, all amounts due and owing to Seller under this
or any
other agreement with SELLER or Seller’s affiliates,
whether disputed or not by Buyer, must be fully paid.
Seller’s sole liability, if any, to Buyer shall
be strictly limited to the written express warranties
specified herein, and Buyer agrees and stipulates that
Seller shall not be liable for any incidental, consequential,
liquidated, exemplary or punitive damages, which Buyer
may allegedly suffer for any reason, including reasons
attributable to Seller. Seller does not warrant any
products or materials that are not
manufactured by Seller except to the extent of the
warranty Seller may actually pass through or assign
from the manufacturer. EXCEPT AS STATED ABOVE, SELLER
HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING, WITHOUT
LIMITATIONS, THE IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, AND THE PARTIES
HERETO HEREBY STIPULATE THAT ALL SUCH WARRANTIES ARE
HEREBY DISCLAIMED. Buyer acknowledges, agrees, and
stipulates
that oil-canning of materials shall not be a cause
of rejection of materials. Claims for shortages or
defective materials must be made to Seller in writing
within five (5) days after delivery of shipment (which
the Parties agree is a reasonable time), or
any and all such claim(s) shall by conclusively waived
and released by Buyer. Notwithstanding the foregoing,
installation of materials shall unequivocally constitute
irrevocable acceptance of said materials.
- Any plans, specifications, details, descriptions,
documents, terms and/or conditions not specifically
referred to and accepted in this agreement are not
a part hereof and shall not binding upon Seller. If
requested, Seller will submit to Buyer approval
drawings of the materials and/or Metal Building System
which is the goods forming the subject matter of this
contract. The approval drawings may consist of a floor
plan, anchor bolt plan and cross section. In order
for Seller to proceed with the preparation
of detailed shop drawings and the manufacture of the
materials, the Buyer shall return one (1) set of approval
drawings to the Seller with a notation of the Buyer’s
outright approval subject to changes or corrections,
if any, noted thereon. Approval
as noted by the Buyer affirms that Seller has correctly
interpreted the overall contract requirements for the
materials and/or Metal Buildings Systems and its accessories,
and the exact location of accessories. All material
sold will be in substantial compliance
to approved drawings only. Buyer may orally waive the
right to receive and approve drawings; provided, however,
that in waiving such right, Buyer accepts Seller’s
interpretation as being correct and further accepts
all responsibility for any discrepancies
in the materials and/or Metal Building System that
a review of the said drawings would have revealed to
Buyer. Detailed shop drawings of individual parts of
the material or Metal Building System will not be furnished
by Seller.
- Buyer may submit a written request for change orders
to Seller adding, deleting or altering the Quantity,
Description or Specifications of material ordered.
Seller, upon receipt of a written request for change
order, shall price the requested changes
and send to Buyer a price quotation thereof. Seller
shall be under no obligation to accept or perform a
request for change order unless Buyer accepts in writing,
without alteration or adjustment, the change order
at the prices and terms quoted by Seller.
- BUYER ASSUMES ENTIRE RESPONSIBILITY AND LIABILITY
FOR ANY CLAIMS OR ACTIONS BASED ON OR ARISING OUT OF
INJURIES, INCLUDING DEATH, TO PERSONS OR DAMAGES TO
OR DESTRUCTION OF PROPERTY (WHETHER BELONGING TO BUYER,
BUILDING OWNER, AND/OR ANY THIRD PARTY), SUSTAINED
OR ALLEGED TO HAVE BEEN SUSTAINED IN CONNECTION WITH
OR TO HAVE ARISEN OUT OF OR INCIDENTAL TO THE PERFORMANCE
OF THIS CONTRACT BY BUYER, ITS AGENTS AND EMPLOYEES,
AND ITS SUBCONTRACTORS, THEIR AGENTS AND EMPLOYEES,
INCLUDING CLAIMS OR ACTIONS FOUNDED IN WHOLE OR IN
PART UPON THE ALLEGED ACTS, OMMISSIONS, NEGLIGENCE
OR FAULT OF SELLER, SELLER’S REPRESENTATIVES,
OR THE EMPLOYEES,
AGENTS, INVITEES, OR LICENSEES THEREOF. BUYER FURTHER
AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS SELLER
AND ITS REPRESENTATIVES, AND THE EMPLOYEES, AGENTS,
INVITEES AND LICENSEES THEREOF IN RESPECT OF ANY SUCH
MATTERS AND AGREES TO DEFEND ANY CLAIM OR SUIT OR ACTION
BROUGHT AGAINST SELLER, SELLER’S REPRESENTATIVE,
AND THE EMPLOYEES, AGENTS, INVITEES AND LICENSEES THEREOF.
THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS UNDER
THE DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT,
SECTIONS 17.41 THROUGH 17.63 INCLUSIVE, OF THE TEXAS
BUSINESS AND COMMERCE CODE, A LAW THAT GIVES CONSUMERS
SPECIAL RIGHTS AND PROTECTIONS. AFTER CONSULTATION
WITH LEGAL COUNSEL, EACH VOLUNTARILY CONSENTS WITH
THIS WAIVER.
- This Agreement, along with Seller’s store policies
and any attached exhibits, constitutes the entire agreement
of the parties herein.
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