Terms & Conditions for Sale
These Terms and Conditions for Sale (“Terms”) govern the sale of products (“Products”) by Gypsum Management & Supply, Inc. and each of its subsidiaries and affiliates (“Supplier”) to you (“Buyer”) and comprise the entire agreement between the parties with respect to the subject matter hereof, and supersede all prior or contemporaneous understandings, agreements, and communications between the parties relating to the matters covered herein. All terms included on any Supplier provided invoice, statement, purchase order, or other sale document (“Sale Document”) are specifically incorporated by reference herein, and in the event of any conflict between specific provisions of the Sale Document and the terms hereof, the Sale Document governs.
Prices on Supplier website or in Supplier quotes are subject to change without notice, and all such prices expire and become invalid if not accepted within ten (10) calendar days from the date of issue, unless otherwise noted by Supplier in writing. All prices or other terms provided to Buyer will be kept confidential except to the extent a Party is required by law to disclose the same. Unless otherwise expressly agreed to in writing, all prices are billed based on the prices at the product ship date. We recommend consulting with your representative to confirm price before having your project stocked with material. Price escalation past six (6) months will be provided if requested, but only for budgetary purposes and shall not be binding on Supplier. This bid quotation is subject to the availability of goods and is based on market prices available on the date of this bid quotation. Supplier does not represent or warrant that the goods referenced in this bid quotation will be available for purchase on any given date. If manufacturer prices increases due to allocation, availability of materials, scarcity, tariffs, or other events outside of our reasonable control, the prices in this bid quotation may be adjusted accordingly. Prices shown do not include any sales, excise, or other governmental tax or charge payable by Supplier to any federal, state, or local authority. Any taxes now or hereafter imposed upon sales or shipments (other than income tax charged to Supplier) will be added to the purchase price, and Buyer will reimburse Supplier for any such tax or provide Supplier with an acceptable tax exemption certificate.
If delivery is requested, note that this bid quotation reflects prices for materials stocked and scattered per floor according to your requirements. Additional charges for difficult deliveries (including, but not limited to elevators, hoists, walk-ups, walk-downs before 8 a.m., after 5 p.m., distance, quantity, and weekend deliveries) may be added to the prices quoted. Should a crane be necessary for the stocking of materials, Buyer is fully responsible for the crane. Unless agreed to separately, standard radius of delivery is fifty (50) miles.
As a distributor and not a manufacturer, Supplier warrants that all Products furnished by Supplier will be new and that Supplier has the authority to sell such Products. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Supplier will use commercially reasonable efforts to pass through to Buyer any manufacturer or other warranties on all materials and equipment furnished by Supplier. Further, Supplier will use commercially reasonable efforts to assist Purchaser with warranty claims against the manufacturer.
If Supplier has caused a defect in the Products (as opposed to a manufacturer’s defect), Supplier’s sole and exclusive obligation for Products purchased by Buyer that prove to be defective is replacement, repair of such materials or refund of the purchase price, at Supplier’s discretion. Repairs are limited to repairing the Products and not removing, demolishing, installing, replacing or other related Product costs. In no event will Supplier’s liability exceed the purchase price of the defective materials, and Supplier will not be liable, whether as a result of breach of contract, warranty, tort (including negligence) or other grounds for special, consequential, incidental or penal damages, including, but not limited to, loss of profits or revenue, cost of substitute products, facilities or services, downtime costs, delay costs, or claims of customers of Buyer. The term “consequential damages” includes, but is not limited to, cost for labor, loss of anticipated profits, loss of use, loss of revenue, and cost of capital.
Supplier will not be liable for any failure or delay in performing its obligations hereunder during any period in which such performance is prevented or delayed by causes beyond its reasonable control, including without limitation, an act of God; flood or other severe weather; war; embargo; fire or other casualty; any act of terrorism or sabotage; a civil riot; strikes or labor shortages; and/or scarcity of product or allocation by the manufacturers (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the time for Supplier’s performance will be extended reasonably and the Parties will adjust all affected dates accordingly.
Buyer will indemnify, defend, and hold Supplier, its officers, directors, employees, and agents harmless from any and all costs (including reasonable attorneys’ and accountants’ fees and expenses), liability, and damages resulting from or related to any third party (including Buyer’s employees, subcontractors, affiliates, or customers) claim, complaint, and/or judgment arising from Buyer’s use of any goods furnished hereunder, as well as any negligent, intentional, or tortious act or omission of Buyer or any material breach by Buyer of these Terms, except to the extent caused by Supplier’s gross negligence.
When goods are delivered to Buyer in Supplier’s own vehicles, the F.O.B. point will be Buyer’s designated delivery site. In all other cases, the F.O.B. point will be Supplier’s store, yard, or warehouse and all responsibility and costs of shipping and delivery beyond the applicable F.O.B. point will be borne by Buyer. Title and risk of loss will pass to Buyer at the applicable F.O.B. point. Buyer must inspect the Products within two (2) business days of delivery. All claims for shortage of goods or for loss or damage to goods or defects, in any such case as to which Supplier has the risk of loss, will be waived unless Buyer, within 2 business days of becoming aware of any short or damaged shipment or defect, gives Supplier written notice fully describing the alleged shortage or damage or defect. Partial shipments are permitted at Supplier’s discretion. Should an order be held or stored beyond the agreed-upon pick-up date at Buyer’s request, Supplier may, at its option, require Buyer to reimburse Supplier for any and all expenses incident to such delay.
Any change in product specifications, quantities, destinations, shipping schedules, or any other aspect of the scope of good must be agreed to in writing by Supplier and may result in a price and delivery adjustment by Supplier. Orders placed by Buyer may be cancelled by Buyer only with Supplier’s consent and upon Buyer’s reimbursement of Supplier for expenses already incurred by Supplier. Returns of stock materials must be approved in advance and are subject to a 20% restocking fee. Only full cartons can be returned. Orders for non-stock items are non-returnable once the manufacturer produces the order.
Unless otherwise agreed to in writing, payment terms are net 30 days from delivery. Notwithstanding the foregoing, all orders are subject to Supplier’s continuing approval of Buyer’s credit. If Buyer’s credit is not approved or becomes unsatisfactory to Supplier, then Supplier, in its sole discretion, may suspend or cancel performance, or require different payment terms, including but not limited to cash on delivery or in advance of shipment. In addition, Supplier may in its discretion require an advance deposit of up to 100% of Supplier’s selling price for any specially manufactured goods ordered by Buyer hereunder. Supplier may, in its sole discretion, apply Buyer’s payment against any open charges. Past due accounts bear interest at the lesser of 1.5% per month or the maximum rate permitted by applicable law.
Any and all material received from Supplier, and any proceeds received from the sale, use, or from jobs/projects on which the material is incorporated, is expressly held in trust by the Buyer, its principals and if applicable, Guarantors for the benefit of Supplier, until Supplier has been paid for the materials by Buyer. Use of any funds received from the sale, use, or from jobs/projects on which the material is incorporated, before Supplier has been paid for the materials is a breach of the trust and the fiduciary duty of the Buyer, its principals and if applicable, Guarantors. Any debt that arises out of the breach of the trust and/or defalcation of the material and/or funds held in trust, is non-dischargeable in bankruptcy.
In the event Supplier prevails in any legal action brought as a result of the commercial relationship with Buyer, Buyer will pay Supplier’s costs and expenses of collection, suit, or other action, including, but not limited to, all actual attorney’s and paralegal’s fees, and collection costs, incurred pre suit, through trial, on appeal, and in any administrative or bankruptcy proceeding. Any cause of action that Supplier has against Buyer may be assigned without Buyer’s consent to an affiliate of Supplier. Buyer shall not assign its rights, obligations, or claims under any Sale Document without the prior written consent of Supplier.
These Terms, Buyer’s account, and the business relationship between Buyer and Supplier will be governed by and construed in accordance with the laws of the state in which the Supplier’s yard making the sale is located without regard to conflicts of laws rules. The Parties agree that any legal action arising under or related to this Agreement, Buyer’s account, and/or the business relationship between Buyer and Supplier will be brought in the state in which the Supplier’s yard making the sale is located, and any right to object to such venue or to assert the inconvenience of such forum is hereby waived. THE PARTIES EXPRESSLY WAIVE THE RIGHT TO A JURY TRIAL.
If Buyer fails to comply with these Terms or make payment, Supplier may terminate or restrict any Order immediately upon notice to Buyer. Buyer certifies that it is solvent and that it will advise Supplier immediately if it becomes insolvent. Buyer’s failure to make timely payment to Supplier shall be deemed an event of material default. In addition to the right of termination, Supplier reserves all rights at law and equity in the event of a default, including but not limited to charging interest during any period of nonpayment or late payment, and the exercise of any lien rights provided by applicable law. It is the clear and express intention of the Parties that no purported unconditional waiver or release of lien rights shall be valid, and all such lien waivers or releases shall be deemed to be null and void, prior to receipt of the full amount due to Supplier.
This agreement is limited to these Terms and any term in a Sale Document. Any additional or different terms proposed by Buyer in any quotation, purchase order, acknowledgement, or other document are hereby deemed to be material alterations and notice of objection to them is hereby given. These Terms are deemed accepted by Buyer without any such additional, inconsistent, or different terms and conditions, except to the extent expressly accepted by Supplier in a writing signed by Supplier. Any such additional or different proposed terms will be void. The invalidity or unenforceability of all or part of these Terms will not affect the validity or enforceability of the other terms. The Parties agree to replace any void or unenforceable term with a new term that achieves substantially the same practical and economic effect and is valid and enforceable. Supplier may delay or waive enforcement of any of its rights under this agreement or applicable law without losing the delayed or waived right or any other right.
The following provisions will survive termination, cancellation, and completed performance of this Agreement as long as necessary to allow the aggrieved Party to fully enforce such clauses: 3, 4, 6, 10, and 11.