These Standard Terms and Conditions of Sale (“Terms”) shall govern all quotations, orders and contracts for the sale of goods and services of Carolina Drywall Supply, LLC, a North Carolina limited liability company, to Buyer. These Terms supersede any prior written or oral agreement, understanding, representation or promise, and any pre-printed or standard terms and conditions contained in Buyer’s request for quote, purchase order, invoice, order acknowledgement, contract, or other similar document. These Terms may not be amended, supplemented, changed, or modified except by concurrent or subsequent written agreement, signed by an authorized representative of CDS and Buyer. CDS’s acknowledgement of Buyer’s purchase order shall not constitute acceptance of any terms and conditions contained therein, regardless of how such terms and conditions may be prefaced or described.
“CDS” means Carolina Drywall Supply, LLC and/or the entity named in the order which is providing the goods and/or services. “Buyer” means the individual, company or entity who accepted CDS’s offer or is named in the order.
- DELIVERY AND PERFORMANCE:
CDS will use commercially reasonable efforts to tender the goods ordered by Buyer to the destination designated in the applicable order (each, a “Delivery Point”). CDS agrees to deliver the goods to each Delivery Point using industry standard methods for packaging and shipping of such goods. Unless otherwise indicated in the order, Buyer shall be responsible for all loading and/or unloading costs. Buyer represents and warrants it has the ability, requisite authority, and/or permission to grant CDS access to the Delivery Point to complete the delivery of the goods per its order (e.g. specifically for ingress, egress, unloading and deposit of goods, and all related and necessary activities thereto). Dates for the delivery or shipment of goods and/or furnishing of services are approximate only and are subject to change, and CDS shall use commercially reasonable efforts to meet such dates; provided, however, that CDS shall not be liable in damages or otherwise, nor shall Buyer be relieved of its performance hereunder, because of CDS’s failure to meet them. Additionally, CDS shall not be liable, directly or indirectly, for any delay in or failure to perform caused by carriers or suppliers; labor difficulties, shortages, strikes or stoppages of any sort; difficulty in obtaining materials; customer requested order changes; fires, floods, storms, accidents, or acts of God; civil war, riot, rebellion, revolution, military or usurped power, insurrection, civil commotion or disorder, mob violence, act of civil disobedience; act of terrorism, sabotage or piracy; plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions or government response to the same; any statute, sanction, injunction or other governmental restraint or prohibition; or other causes beyond CDS’s reasonable control. In the event of any such delay, the date of delivery shall be extended for a length of time at least equal to the period of the delay. If Buyer fails to perform any of its obligations under this Agreement, CDS shall be entitled to suspend its performance under the Agreement until such time as Buyer performs such obligations, and any dates for the delivery of goods shall be extended for an amount time determined in CDS’s discretion.
- PARTIAL SHIPMENTS; DELIVERY ACCEPTANCE:
CDS may, in its sole discretion, without liability or penalty, make partial shipments of goods to Buyer. Each such shipment shall constitute a separate sale, and Buyer shall pay for the goods shipped whether such shipment is in whole or in partial order. If, for any reason Buyer (or a representative of Buyer) is not available to execute or does not execute the delivery ticket at the time of delivery at the Delivery Point, the quantity of any installment of goods as set forth on such delivery ticket as recorded by CDS shall be conclusive evidence of the quantity received and delivered unless Buyer can provide conclusive evidence of the contrary. If CDS is unable to deliver the goods at the Delivery Point on such date because Buyer did not provide appropriate instructions, documents, licenses, or authorizations, CDS, at its option, may store the goods until Buyer picks them up, whereupon risk of loss of such goods shall transfer to Buyer and Buyer shall be liable for all related costs and expenses, including, without limitation, storage and insurance of such goods.
- TITLE; RISK OF LOSS:
For those goods to be tendered to Buyer at CDS’s facility, both title and risk of loss shall transfer to Buyer when Buyer or its agents take possession of the goods at CDS’s facility. For goods to be delivered to a Delivery Point, title and risk of loss shall vest in Buyer at the time the goods arrive curbside at such Delivery Point address. Any damages related to any handling of the goods by Buyer or any third party after such transfer shall be at the sole and exclusive risk and cost of Buyer. Subject to Section 5 (Inspection of goods) and Section 8 (Limited Warranty), CDS shall have no responsibility to repair or replace any goods that have been altered, installed, assembled, disassembled, modified, or otherwise relocated from the original Delivery Point by any party other than CDS. CDS shall have no responsibility for securing the goods from any risk once delivery is completed (including, without limitation, securing against damages due to weather, theft, or improper storage).
- INSPECTION OF GOODS; NOTICE OF DAMAGE:
Buyer shall promptly inspect any and all tendered goods for any reasonably discoverable damage or non-conformity within forty-eight (48) hours of tender and notify CDS in writing (email is sufficient) of any such damage or non-conformity. If Buyer does not notify CDS of any purported damages or non-conformities which would have been reasonably discovered in the course of such an investigation, but which were in fact not made within said forty-eight (48) hour period, such failure shall constitute irrevocable acceptance of the delivered goods and act as a waiver of any damage or non-conformity. Following timely notice of damaged or non- conforming goods tendered to Buyer, the sole remedy for Buyer shall: (a) repair or replacement of the damaged or non-conforming goods; or (b) refund of the price paid by Buyer for such damaged or non- conforming goods (upon the return thereof to CDS).
- CREDIT AND PAYMENT; PRICES:
Unless otherwise agreed in writing by CDS, payment of goods shall be net thirty (30) days, in US dollars. For orders in excess of two hundred and fifty thousand dollars ($250,000 USD) payment terms shall be as follows: (a) twenty percent (20%) down payment, (b) forty percent (40%) upon CDS’s purchase of raw materials/components, and (c) forty percent (40%) at the time of delivery. Down payment shall be due within five (5) of CDS’s acceptance of the order, with the remaining two payments being net thirty (30) days. Prorated payments shall become due with partial shipments, and Buyer shall not be entitled to any retention or holdback. Stenographic, clerical and mathematical errors are subject to correction. Prices are exclusive of expenses related to special packaging or procedures to cover unique circumstances of shipment or storage unless specifically noted. Prices do not include any sales taxes or other charges levied by any governmental authority upon the sale, use, or transportation of the goods, all of which shall be paid by Buyer at the time of sale unless Buyer supplies a valid sales tax exemption certificate to CDS. Until acceptance of order on these Terms, quoted prices are subject to change. CDS retains all remedies for Buyer’s insolvency including, but not limited to, the right to stop delivery, reclaim any goods delivered, or withhold delivery except for cash. Failure to pay invoices at maturity date, at CDS’s election, makes all subsequent invoices immediately due and payable and CDS may withhold all subsequent deliveries until the full account is settled and CDS shall not, in such event, be liable for non-performance of contract in whole or in part. Buyer agrees to pay, without formal notice, one and one-half percent (1.5%) per month of the amount not paid when due, or, if such rate is in excess of applicable governing law, Buyer agrees to pay the maximum permitted rate. No deduction, whether by way of set-off, counterclaim or otherwise, shall be made by Buyer. If prerequisites for any payment (such as delivery, completion, or formal acceptance) cannot be satisfied due to Buyer’s breach, such payment shall nevertheless become due and payable at the time agreed to and CDS’s further right to seek damages shall remain unaffected. UNDER NO CIRCUMSTANCES SHALL PAYMENT TO CDS BE CONDITIONED UPON PAYMENT TO BUYER BY THE END-USER OF THE GOODS OR OWNER OF THE PROJECT FOR WHICH SUCH GOODS ARE BEING SUPPLIED.
- CANCELLATIONS; RETURNS:
If Buyer fails to make payment as required, or otherwise fails to comply with these Terms or act in accordance with any other written agreement between Buyer and CDS, then CDS may, at its option and in addition to other remedies, cancel any unshipped portion of Buyer’s order without liability, in which case Buyer shall be responsible for all unpaid amounts for goods already delivered. Except as set forth in these Terms, goods cannot be returned, and orders, once accepted by CDS, cannot be cancelled without CDS’s prior written consent which may be withheld in CDS’s sole discretion. In the event of Buyer’s cancellation, Buyer shall be liable for a cancellation charge equal to the greater of (i) twenty-five percent (25%) of the purchase price and (ii) any loss or cost incurred by CDS, including, but not limited to, cost of materials, labor, engineering, reconditioning and a reasonable profit margin. Buyer is responsible for all reasonable storage, insurance, and all other expenses incurred by CDS as a result of Buyer’s cancellations and/or changes. No changes to the specification or the order are accepted without the prior written consent of both parties. In the event Buyer requests a change, CDS will provide a quotation to Buyer within ten (10) days detailing the corresponding change in delivery, price, materials, and similar. CDS shall not be obligated to implement the requested change until the quotation is agreed by the parties. NOTWITHSTANDING THE FOREGOING, ALL SALES OF SPECIALTY OR CUSTOM GOODS ARE FINAL AND INELIGIBLE FOR RETURN OR REFUND.
- LIMITED WARRANTY:
CDS DOES NOT DESIGN, MANUFACTURE, OR FABRICATE THE GOODS IT DISTRIBUTES. CDS DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR GUARANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO SAID GOODS. Third party goods furnished by CDS will be repaired or replaced as Buyer’s sole remedy, but only to the extent provided in and honored by the original manufacturer’s warranty. CDS HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS (WITH ANY AND ALL INTELLECTUAL PROPERTY RIGHTS STRICTLY REMAINING WITH THE MANUFACTURER). However, CDS agrees to provide and pass-through, to the extent permitted by the respective manufacturer and applicable law, any manufacturer warranty to Buyer or the applicable end-user. CDS further agrees to act as a liaison on behalf of Buyer with respect to the manufacturer regarding any manufacturer warranties or defects; provided, however, CDS makes no representations as to dispute outcome and retains the right to terminate such efforts in its sole discretion.
- DELIVERY RELEASE:
In connection with CDS’s delivery of goods, CDS may require access to and use of a designated road, driveway, path, yard, entrance, route, zone, or area to reach each Delivery Point and/or complete its delivery under an order. Except for CDS’s gross negligence or willful misconduct, Buyer releases CDS from and assumes full responsibility for any damage, loss, or liability sustained to the Delivery Point and surrounding areas in connection delivery to or performance of an order at the Delivery Point. Buyer further agrees to indemnify and hold CDS harmless from all Claims (as defined in Section 12) concerning damage to Point and/or performance of the delivery at, on, in, to, or about the Delivery Point, except to the extent such Claims are directly attributable to or willful misconduct.
- LIMITATION OF LIABILITY:
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN: (A) IN NO EVENT SHALL CDS BE LIABLE FOR ANY EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER (COLLECTIVELY DEFINED AS “CONSEQUENTIAL DAMAGES”), WHETHER FORESEEABLE OR NOT, INCLUDING WITHOUT LIMITATION, THIRD PARTY CHARGES AND COSTS, LOST PROFITS, PRODUCT, PRODUCTION, BUSINESS OR BUSINESS OPPORTUNITY, REGARDLESS OF THE CAUSE, INCLUDING WITHOUT LIMITATION, THE NEGLIGENT ACTS OR OMISSIONS, BREACH OF CONTRACT, WARRANTY (EXPRESS OR IMPLIED) OR DUTY (STATUTORY OR OTHERWISE) OR STRICT LIABILITY OF CDS GROUP OR ANY OTHER THEORY OF LEGAL LIABILITY; AND (B) CDS’S AGGREGATE LIABILITY ARISING FROM OR IN CONNECTION WITH ALL ORDERS AND CONTRACTS FOR GOODS AND SERVICES UNDER THESE TERMS SHALL NOT EXCEED THE CONTRACT PRICE FOR THE GOODS AND/OR SERVICES FOR WHICH LIABILITY IS CLAIMED. ANY ACTION FOR BREACH OF CONTRACT BY BUYER MUST BE COMMENCED WITHIN 12 MONTHS AFTER THE DATE OF SALE. BUYER SHALL BE SOLELY RESPONSIBLE FOR ANY AND ALL AGREEMENTS MADE WITH THIRD PARTIES THAT ARE OUTSIDE THE SCOPE OF THESE TERMS AND WHICH ARE CONTRARY TO THE LIMITATIONS OF LIABILITY AND/OR WARRANTY INCLUDED HEREIN.
- GOODS FOR EXPORT:
Buyer acknowledges that the goods may be subject to export restrictions, and that Buyer will to comply with all such applicable laws and regulations. If the goods are intended for export, Buyer shall designate country of destination on its purchase order. In the event that Buyer purchases goods for export without so notifying CDS, CDS reserves the right to cancel the contract at no penalty or liability for breach in the event that CDS objects to the ultimate destination of the goods. Buyer will have sole liability and shall defend, indemnify and release CDS for any loss or damage (including without limitation, claims of governmental authorities) arising from the export or import of such goods, including, without limitation, those related to packaging, labeling, marking, warranty, contents, use, or documentation of the goods. Buyer has sole responsibility for obtaining any required export licenses. Buyer will not take, and will not solicit CDS to take, any action which would violate any anti-boycott or any export or import statutes or regulations applicable to the order, of any governmental authorities, and shall defend, indemnify, and reimburse CDS for any loss or damage arising out of or related to such actions. To the extent CDS is required to obtain an export license for any goods: (1) CDS obligation to fulfill an order with goods requiring such a license will be directly subject to the granting of the license; (2) CDS will use commercially reasonable effort to obtain such license; (3) Buyer shall make available all necessary information and documentation required for CDS to obtain such license; and (4) Buyer shall reimburse CDS for its reasonable expenses incurred in connection with obtaining such license.
Buyer agrees to defend, indemnify, and hold harmless CDS and its present and former, direct and indirect, parents, subsidiaries, affiliates, employees, officers, directors, shareholders, members, agents, representatives, successors, and permitted assigns (the “CDS Parties”), from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever nature (the “Claims”) which Buyer ever had, now has, or hereafter can, shall, or may have against any CDS Parties for, upon, or by reason of (collectively, the “Indemnity Claims”): (a) any resale of the goods by Buyer to a third-party; (b) CDS accessing or using the Delivery Point to perform or attempt to perform delivery pursuant to an order; (c) the assembly, installation, modification, possession, or use of the goods; or (d) the transportation, unloading, spreading, stocking, scattering, or storage of said goods except where CDS is providing such services under the order and is negligent in providing such services. Without limiting the foregoing terms of this Section, any obligation of CDS to indemnify, release, defend, and hold harmless Buyer shall apply to and be binding upon CDS only to the extent of CDS’s negligence or willful misconduct. Under no circumstances does CDS waive the contributory negligence, comparative fault, or conduct of others nor does CDS agree to waive any rights and protections afforded to CDS by statutory law or regulations. Any obligation for CDS to defend or indemnify Buyer shall be limited to the extent such claim for damages is reasonably attributable to CDS’s negligent acts or omissions.
- APPLICABLE LAW; VENUE:
The rights and duties of the parties hereunder shall be governed by the laws of the State of North Carolina, United States of America, excluding its conflicts law and choice of laws principles. Any action or proceeding with respect to this order shall be brought only in any state court in Mecklenburg County, North Carolina or the Federal courts of the Western District of North Carolina, United States of America, and Buyer and CDS submit to and accept generally and unconditionally the jurisdiction of those courts with respect to such party’s person and property. Buyer and CDS hereby irrevocably waive any objection to the laying of venue of any such action or proceeding in the above-described courts.
- U.S. FOREIGN CORRUPT PRACTICES ACT:
CDS and Buyer each represent and warrant it understands and shall comply with the U.S. Foreign Corrupt Practices Act and all other applicable anti-bribery and anti-corruption laws of the jurisdictions under which each party is or may be acting hereunder.
- EO CONTRACT CLAUSE:
CDS and Buyer agree to abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
- NO OTHER CONTRACT PROVISIONS; OTHER:
No dealer, broker, branch manager, agent, employee or representative of CDS has any power or authority except to take orders for CDS goods or services and to submit the same to CDS, for CDS’s approval and acceptance on the terms herein or rejection. There are no representations, agreements, obligations, or conditions, expressed or implied, statutory or otherwise, relating to the subject matter hereof, other than herein contained herein. These Terms constitute a completely integrated agreement and cannot be modified unless modifications are accompanied by signed writing approved by CDS. For the avoidance of doubt and not in limitation of the foregoing, CDS shall not be bound by the terms of any contract between Buyer and any third party or other flow down provisions, regardless of whether Buyer notifies CDS of such terms unless CDS expressly agrees to be bound by such terms in writing by an authorized representative of CDS. If any provision hereof is invalid or not enforceable under applicable law, the remaining provisions shall remain in full force and effect. CDS reserves the right to transfer or assign its obligations, rights and responsibilities hereunder, so long as such successor or assign agrees to these Terms. Any assignment of Buyer’s rights hereunder without CDS’s consent (which shall not be unreasonably withheld) shall be void. CDS’s failure to require Buyer’s performance of any of these Terms shall not serve as a waiver of or diminish CDS’s rights to require strict performance of these Terms.