Terms and Conditions of Sale
These Terms and Conditions of Sale (these “Terms” or this “Agreement”) shall govern all conduct between the Seller and Purchaser regardless of the nature or form of Purchaser’s offer to purchase products (“Products”) or services from Seller. To the extent a Seller order acknowledgment, invoice or other document or transmittal constitutes an acceptance of an offer from Purchaser, such acceptance is expressly made conditional upon Purchaser’s assent to these Terms. Purchaser disclaims all other terms, including but not limited to terms included in any Purchaser purchase order. “Purchaser” means the individual or entity identified on Purchaser’s purchase order, or if different, on Seller’s quote or invoice. “Seller” means, with respect to the particular Product purchased by Purchaser, the applicable affiliated entity of National Gypsum Services Company d/b/a National Gypsum Company (“NGC”) that manufactures such Product, including without limitation, Gold Bond Building Products, LLC (“Gold Bond®”), ProForm Finishing Products, LLC (“ProForm®”), or PermaBASE Building Products, LLC (“PermaBASE®”), as applicable. As used herein, “Seller” shall include NGC when it is acting in its capacity as authorized sales agent and service provider to Gold Bond, ProForm, and PermaBASE.
ENTIRE AGREEMENT & ORDERS
The entire agreement of the Seller and Purchaser is expressed exclusively in the terms, covenants, and conditions set forth in these Terms, a Seller quote, and Seller’s acceptance and acknowledgment of Buyer’s purchase order. Any purchase order, offer, or counter-offer made by Purchaser before or after the Seller’s acceptance and acknowledgment is rejected and all documents exchanged prior to the Seller’s acceptance and acknowledgment are merely preliminary negotiations and not part of any agreement between the parties. For example, orders submitted on Purchaser’s own purchase order forms modifying, adding to, contrary to, or inconsistent with these Terms are expressly rejected and of no force or effect, and acceptance is expressly made conditional upon Purchaser’s assent to these terms. In no event will any Seller be deemed to have in any way changed, enlarged, or modified its liabilities or obligations as fixed by these Terms including, without limitation, situations in which the Seller satisfies an order submitted on Purchaser’s own purchase order form.
Purchaser shall have been deemed to agree to these Terms upon the earlier of Purchaser’s: (a) execution of a Credit Application related to the purchase of Products, (b) acceptance of the Seller’s quotation, (c) acceptance of delivery of the Products or services or (d) issuance of a purchase order to the Seller.
No acknowledgment by the Seller and no provision of the Terms shall be subject to change in any manner except as agreed to in writing by an authorized representative of the Seller. No order for the Seller’s Products or services shall be binding upon the Seller until accepted by the Seller. An order is accepted when acknowledged in writing or when shipped, whichever occurs first.
All pricing is subject to approval by the Seller. All Products will be invoiced at the price in effect on the date of shipment, determined by the Seller’s current price pages. The Seller reserves the right to adjust its current prices to meet competition, but all price exception requests must be approved prior to the shipment of the Product. The Seller reserves the right to cancel or remove price adjustments or exceptions which may have previously been made to meet a competitive offer when in its judgment it becomes necessary or prudent to do so or the competitive situation no longer exists. All pricing is subject to change without notice. An effort will be made, however, to provide sufficient lead-time to Purchaser before a price is changed. Shipments made on or after the date of a price change will be invoiced at the new price. Verbal quotations are non-binding on the Seller. Unless otherwise specified in writing by the Seller, all prices are exclusive of taxes, customs, duties, transportation and insurance, and any and all current or future tax or governmental charge (including sales tax) applicable to the sale, delivery, shipment, or storage of the Products that the Seller is required to pay or collect shall be for Purchaser’s account, shall be added to the price and shall not be subject to reduction. Typographical and/or clerical errors made by the Seller are subject to correction.
TERMS OF PAYMENT
Except as otherwise specified in writing by the Seller, terms of payment are net 30 days from the date of the Seller’s invoice in U.S. currency and shall be due and payable without setoff or deduction on any basis. Purchaser shall be liable for interest as stated below and for all expenses attendant to the collection of past due amounts, including attorneys’ fees. The Seller shall have the right to set off any amounts owing from Purchaser against any amounts payable to Purchaser. The Seller’s affiliates shall also have the right to set off amounts payable to Purchaser or any of its affiliates, against amounts owed to Purchaser or any of its affiliates. In the event that the Seller determines, at any time in its sole discretion, that the credit of Purchaser or of any person providing credit support for Purchaser’s obligations is or becomes impaired, or there is any reason to doubt the enforceability or sufficiency of any agreement or instrument supporting Purchaser’s obligations, the Seller shall have the right, among any other rights provided by applicable law, to declare immediately due and payable any and all amounts owed by Purchaser to the Seller, whether under these Terms or otherwise, and to suspend and/or terminate further production and delivery to Purchaser of any order until credit arrangements satisfactory to the Seller in its sole judgment have been established. Purchaser agrees and acknowledges that the Seller is entitled to payment of interest at the rate of 18% per annum, calculated on the basis of a 365-day calendar year, on all invoices and balances outstanding more than 30 days after the date of invoice.
If delivery is delayed or deferred by Purchaser beyond the scheduled date, payment shall be due in full when the Seller is prepared to ship the Products or perform the services. The Products may thereafter, at the Seller’s option, be stored at the risk and expense of Purchaser. If Purchaser defaults in the payment of any invoice when due, all unpaid invoices, whether or not due shall become immediately due and payable in full, without prejudice to other lawful remedies, including suspension of the Seller’s performance and cancellation of all agreements or purchase orders.
SHIPMENT/RISK OF LOSS
Unless otherwise stated herein, or approved by the Seller in writing in advance, all shipments are CPT the Seller’s plant or other shipping point, freight prepaid. Shipments may be made on a freight collect or c.o.d. bill of lading. Purchaser pick-ups are prohibited unless specifically authorized by the Seller in writing. On less-than-truckload (“LTL”) shipments, all freight will be pre-paid and charged to Purchaser in addition to the invoice price for the Products, unless prepaid freight minimums are met. On all shipments, the title and risk of loss or damage to the Products shall pass to Purchaser upon delivery by the Seller to the carrier regardless of who contacts or contracts with the carrier.
The Seller will use commercially reasonable efforts to meet Purchaser’s request for a specified delivery date; however, the Seller will not be responsible for any failure or delay of delivery or other performance due to: failure of the carrier (for any reason) resulting in delayed delivery (or non-delivery), fire, floods, windstorms, labor difficulties, plant or equipment breakdowns, road passage delays due to construction, maintenance, congestion or accidents, riots or civil commotions, explosions, war, or due to any other cause or causes beyond its control, including, without limitation, U.S. Department of Transportation and Federal Motor Carrier Safety Administration Driver Hours of Service Regulations.
Requests to return Products must be approved in advance by the applicable Seller manufacturing plant. If the reason for the return is other than a timely claim under the Seller’s Limited Warranty (as defined below) for the Product, a 10% handling charge will be assessed (20% if the Products are buy-for-resale), and Purchaser must pay all freight charges. Any return of Products is also subject to inspection and acceptance at the Seller’s plant. Any authorized credit adjustments will apply only if the Products are returned in the same condition in which they were shipped. Non-standard Products are not returnable. No credit will be given for unauthorized returns.
Purchaser must at the time of delivery, legibly sign and date the lower left-hand corner of the Bill of Lading (BOL) “Customer” and “Carrier” Copy a/k/a Proof of Delivery (POD) or Delivery Receipt (DR). Purchaser must exclusively notate, legibly sign and date any exceptions to delivery and disposition in the lower right-hand corner of both copies.
Shortage Notations: Purchaser shall specify the quantity actually received next to BOL quantity and circle it. Then specify the quantity and BOL product description of missing items and note them as “short”.
Damage Notations: Purchaser shall specify the quantity; BOL product description; nature and location of damage, e.g., “20 pcs; 1/2”-4'x12' TE Reg; broken top outside edges; front right-hand side of trailer”. Purchaser notations should not express an opinion as to the cause of any damage or shortage but, only describe what is observed as clearly as possible. Opinions as to the cause of any damage or shortage may jeopardize Purchaser's or the Seller's claim rights against the carrier.
Shortage or damage should be immediately reported to NGC's Customer Service Center and the notated DR must be faxed to an NGC Customer Account Specialist. Purchaser must reject only the damaged portion of the shipment of Products to the carrier.
Disposition Notations: Purchaser shall specify the final disposition of the damaged Products, e.g., “rejected to carrier”; “carrier to retrieve product within a mutually acceptable time frame”. Under no circumstances will a claim be allowed if a Purchaser disposes of Products that have been damaged in transit without the Seller’s advance approval and no Products will be returned to the Seller without prior authorization.
By accepting delivery or otherwise signing a BOL, POD, or DR free and clear of exceptions, Purchaser shall be deemed to have waived any claims of transit damage or delay of delivery.
Proper notation of exceptions to delivery and disposition may result in a Purchaser Settlement, which effectively assigns Purchaser's claim rights against the carrier to the Seller, which will in turn file a Shortage or Damage Claim with the carrier.
PRODUCT INSPECTION; NON-CONFORMITY
Purchaser must inspect the Products within 48 hours after delivery and notify the Seller in writing of any physical damage to the Products or non-conformity with the purchase order or invoice (including claims for delay or failure of delivery). Failure to make inspection and deliver written notice of such damage or non-conformity within such 48-hour period shall constitute irrevocable acceptance of the delivered Products and a waiver of any damage or non-conformity that was or reasonably could have been detected. Seller has the option to exercise approval rights with respect to the person selected to inspect the Products. As Purchaser’s sole remedy for any damaged or non-conforming Products with respect to which Purchaser has delivered to the Seller timely notice, the Seller, at its sole option, shall either: (a) replace the damaged or non-conforming Products or (b) refund the price paid by Purchaser to the Seller for such damaged or non-conforming Products.
WARRANTY & REMEDIES
Subject to the exclusions set forth below, Seller warrants that each Product manufactured and sold by the Seller shall be free from defects in materials and workmanship at the time of shipment (the “Limited Warranty”). If a Product fails to conform to the foregoing Limited Warranty and Purchaser has fully complied with all of its obligations under these Terms, the Seller, at its sole option, shall either (a) replace the non-conforming Product(s) with Product(s) in the form originally shipped or (b) issue a credit to Purchaser in an amount not to exceed the original purchase price of the non-conforming Product(s). This Limited Warranty only extends to each Product as shipped to, and is for the sole and exclusive benefit of, the immediate purchaser of such Product. The foregoing sets forth the sole and exclusive remedy for failure of the Products to comply with the terms of the Limited Warranty. THE LIMITED WARRANTY IS THE ONLY WARRANTY APPLICABLE TO THE PRODUCTS AND IS IN LIEU OF AND EXCLUDES ALL OTHER EXPRESS ORAL OR WRITTEN WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE SELLER OR ANY EMPLOYEE, AGENT, DISTRIBUTOR OR OTHER SUPPLIER OF THE PRODUCTS SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE LIMITED WARRANTY. NO EMPLOYEE, AGENT, DISTRIBUTOR, OR OTHER SUPPLIER OF THE PRODUCTS HAS THE AUTHORITY TO MODIFY OR AMEND THE LIMITED WARRANTY.
The Seller will not be liable for Products claimed to be defective where the defect resulted from causes not within the Seller’s control, or which arose or occurred after shipment, including but not limited to accidents, misuse, mishandling, improper storage or installation, contamination or adulteration by other materials or products, or abnormal conditions of temperature, moisture, dirt, or corrosive matter.
Any claim that a Product sold by the Seller was defective or otherwise did not conform to the Limited Warranty is waived unless Purchaser submits a breach of warranty claim in writing to the Seller within thirty (30) days from the date Purchaser discovered or could reasonably have discovered the defect or non-conformance.
Purchaser represents and warrants that Purchaser is not a “consumer” as defined by any applicable usury or consumer protection laws.
LIMITATION OF LIABILITY
IN NO EVENT SHALL THE SELLER BE LIABLE FOR INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE OR COMPENSATORY DAMAGES OR EXPENSES. FOR AVOIDANCE OF DOUBT, "CONSEQUENTIAL DAMAGES" INCLUDE, WITHOUT LIMITATION, COST FOR LABOR, LOSS OF ANTICIPATED PROFITS, LOSS OF USE, LOSS OF REVENUE, AND COST OF CAPITAL. UNDER NO CIRCUMSTANCES SHALL THE SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SALE OF PRODUCTS, IN CONTRACT, TORT OR OTHERWISE, EXCEED THE PURCHASE PRICE OF THE PRODUCT TO WHICH SUCH LIABILITY RELATES. ANY ACTION FOR BREACH OF CONTRACT OR TORT MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
Purchaser certifies that it is the purchaser identified in the Purchase Order for the Products and that Purchaser is not purchasing the Products for export outside the U.S. or its Territories. Purchaser understands and acknowledges that the Seller is specifically relying on Purchaser’s representations and compliance with this section. Purchaser shall comply fully with all relevant regulations of the U.S. Department of Commerce and with the U.S. Export Administration Act to assure that any delivered Products are not exported in violation of U.S. law.
Purchaser shall comply with all applicable anti-bribery laws of the USA (including the United States Foreign Corrupt Practices Act) or other country. Purchaser represents that it, and each of its owners, directors, officers, employees, and other persons acting on its behalf, has not and will not, in connection with any transactions involving the Seller or its Products, directly or indirectly: (a) offer, promise, authorize or make any payments of money or anything of value to any government official or employee, foreign political party or party official or any candidate for foreign political office (collectively, “government official”) or any agent or intermediary for further payment to any government official (i) to influence the acts of the government official, (ii) to induce the government official to use his influence with a government, or (iii) to obtain an improper advantage; or (b) otherwise offer, promise, or pay any illegal bribe, kickback, facilitation payment or other payment in violation of any applicable law. “Government” includes any company or other entity owned or controlled by the government. A person does not cease to be a government official by purporting to act in a private capacity or by the fact that he or she serves without compensation. If the Seller determines reasonably and in good faith that there has been a breach of any such representation or warranty, the Seller shall have the right unilaterally to withhold or delay shipment.
WAIVER AND CHOICE OF LAW
The failure of the Seller to insist in any one or more instances, upon the performance of any of the Terms as set forth herein or the failure of the Seller to exercise any of its rights hereunder shall not be construed as a waiver or relinquishment of any such terms, conditions or rights thereunder and shall not affect the Seller’s right to insist on strict performance and compliance with regard to any future performance of these Terms.
This Agreement and all transactions hereunder shall be governed by, construed, and enforced in accordance with the laws of the State of North Carolina, without giving effect to its principles of conflicts of law.
THE SELLER AND PURCHASER AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY OF ANY NATURE, WHETHER BASED ON CONTRACT, TORT, STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY, ARISING OUT OF OR RELATED TO THE SALE OF PRODUCTS FROM THE SELLER TO PURCHASER SHALL BE RESOLVED THROUGH BINDING ARBITRATION ADMINISTERED PURSUANT TO TITLE 9 OF THE U.S. CODE BY JAMS UNDER ITS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES, AND JUDGMENT ON THE AWARD ENTERED BY THE ARBITRATOR(S) MAY BE ENTERED BY ANY COURT HAVING JURISDICTION THEREOF. SUCH ARBITRATION SHALL BE CONDUCTED IN CHARLOTTE, NORTH CAROLINA.
EITHER PARTY MAY APPLY TO THE ARBITRATOR TO SEEK INJUNCTIVE RELIEF UNTIL THE ARBITRATION AWARD IS ENTERED OR THE MATTER IS RESOLVED. EITHER PARTY ALSO MAY, WITHOUT WAIVING ANY REMEDY AVAILABLE TO IT, SEEK ANY PROVISIONAL OR INTERIM RELIEF THAT IS NECESSARY TO PROTECT ITS RIGHTS PENDING THE ARBITRATOR(S)’ DETERMINATION OF THE MERITS OF THE DISPUTE, CLAIM OR CONTROVERSY. THE EXCLUSIVE JURISDICTION FOR ACTIONS SEEKING SUCH PROVISIONAL OR INTERIM RELIEF SHALL BE THE STATE OR FEDERAL COURTS LOCATED IN MECKLENBURG COUNTY, NORTH CAROLINA.
CLASS ACTION WAIVER
THE SELLER AND PURCHASER AGREE THAT THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY CLAIM, DISPUTE AND/OR CONTROVERSY COVERED UNDER THE PARTIES’ AGREEMENT TO ARBITRATE TO BE BROUGHT, HEARD, OR ARBITRATED AS A CLASS ACTION AND/OR COLLECTIVE ACTION AND/OR REPRESENTATIVE ACTION. NOR SHALL THE ARBITRATOR(S) HAVE ANY AUTHORITY TO HEAR OR ARBITRATE ANY SUCH CLASS AND/OR COLLECTIVE ACTION AND/OR REPRESENTATIVE ACTION. REGARDLESS OF ANYTHING ELSE IN THESE TERMS OR BY VIRTUE OF ANY JAMS ARBITRATION RULES OR PROCEDURES THAT NOW APPLY OR ANY AMENDMENTS AND/OR MODIFICATIONS TO THOSE RULES, THE ENFORCEABILITY AND VALIDITY OF THIS CLASS ACTION WAIVER MAY BE DETERMINED ONLY BY A COURT AND NOT BY AN ARBITRATOR. NOTWITHSTANDING ANY OTHER CLAUSE CONTAINED IN THESE TERMS, THIS CLAUSE ENTITLED “CLASS ACTION WAIVER” SHALL NOT BE SEVERABLE FROM THESE TERMS IN ANY CASE IN WHICH THE DISPUTE TO BE ARBITRATED IS BROUGHT AS A CLASS AND/OR COLLECTIVE ACTION. THIS CLASS ACTION WAIVER AND THE AGREEMENT TO ARBITRATE ANY CLAIM, DISPUTE OR CONTROVERSY PRECLUDES PURCHASER FROM LITIGATING IN COURT OR ARBITRATING ANY CLAIMS AGAINST THE SELLER AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN ITS CAPACITY AS A PRIVATE ATTORNEY GENERAL.
Purchaser shall not assign or delegate any of its rights or obligations under this Agreement without the prior written consent of the Seller. The Seller may assign this Agreement, or assign or delegate any portion of its rights or obligations under this Agreement, to any person, firm or company without notice to Purchaser. The Seller may terminate this Agreement upon written notice to Purchaser without any further liability to Purchaser if there is a change of control of Purchaser.
Purchaser shall pay to the Seller all costs of collection, including, without limitation, reasonable attorneys’ fees, incurred by the Seller in enforcing these Terms, including, without limitation, collecting any money due from Purchaser and enforcing any of the Seller’s lien rights.
The unenforceability or invalidity of any one or more portions of these Terms shall not render any other portion unenforceable or invalid, which remaining portions shall continue in full force and effect.
No waiver by the Seller of any term or any obligation of Purchaser shall constitute a waiver of any other term or obligation.
All notices, requests, consents, and other communications required hereunder shall be in writing and either delivered in person or sent by nationally recognized overnight courier, or first-class registered or certified mail, return receipt requested, postage prepaid, addressed to such party at: (i) for the Seller, to NGC as authorized agent, 2001 Rexford Road, Charlotte, NC 28211, Attention: General Counsel; and (ii) for Purchaser, at the address for Purchaser set forth in Purchaser’s purchase order or the Seller’s order acknowledgment or invoice, as applicable. All such notices given hereunder shall be effective (a) if hand-delivered, upon delivery, (b) if delivered by overnight courier, one business day after delivery to such courier, and (c) if delivered by mail, three business days after deposit in the United States mail.
Purchaser acknowledges and agrees that (i) NGC and each of its affiliated entities are distinct legal entities, (ii) these Terms establish contractual privity solely between Purchaser and the applicable Seller of the applicable Product(s) (i.e., NGC and each of its other affiliated entities are not parties to these Terms and have no obligations or duties to Purchaser hereunder), and (iii) Purchaser’s recourse hereunder shall be solely and exclusively with the applicable Seller (i.e., not with or against NGC or any of its other affiliated entities).