JAMES M. PLEASANTS COMPANY, INC.’S (“JMP”)
STANDARD TERMS AND CONDITIONS OF SALE (“Terms”)
1. All sales to Buyer are subject to these Terms, which shall prevail over any inconsistent terms of Buyer’s purchase order or other documents. Seller’s offer to sell is expressly conditioned on the acceptance without change or additions by the Buyer to these Terms. Additional, different or conflicting terms and conditions in any way altering or modifying these Terms are deemed material, and are expressly objected to and rejected hereby. These Terms cannot be modified, canceled, rescinded or waived except by a written agreement reviewed and signed by Seller’s authorized representative. No modification or alteration of these Terms shall result by Seller’s shipment of goods following receipt of Buyer’s purchase order, or other documents containing additional, conflicting or inconsistent terms. Buyer’s assent to the Terms shall be conclusively presumed from Buyer’s acceptance of any shipment of goods or materials from Seller. There are no terms, conditions, understandings, or agreements other than those stated herein, and all prior proposals and negotiations are merged herein. These Terms are binding on the Parties, their successors, and permitted assigns.
2. Prices in Seller quotes are subject to change without notice, and all such prices expire and become invalid if not accepted within 30 days from the date of issue, unless otherwise noted by Seller in writing. Any mathematical, stenographic or clerical errors are not binding on Seller. Prices shown do not include any sales, excise, or other governmental tax or charge payable by Seller to any federal, state or local authority. Any taxes now or hereafter imposed upon sales or shipments will be added to the purchase price, and Buyer shall reimburse Seller for any such tax or provide Seller with an acceptable tax exemption certificate. All prices and other terms provided to Buyer shall be kept confidential except to the extent a Party is required by law to disclose the same.
3. Seller is a reseller of goods only, and as such does not provide any warranty for the goods it supplies hereunder. Notwithstanding this as-is limitation, Seller shall pass through to Buyer any transferable manufacturer’s standard warranties with respect to goods purchased hereunder. BUYER AND PERSONS CLAIMING THROUGH BUYER SHALL SEEK RECOURSE EXCLUSIVELY FROM MANUFACTURERS IN CONNECTION WITH ANY DEFECTS IN OR FAILURES OF GOODS, AND THIS SHALL BE THE EXCLUSIVE RECOURSE OF BUYER AND PERSONS CLAIMING THROUGH BUYER, WHETHER THE CLAIM OF BUYER OR THE PERSON CLAIMING THROUGH BUYER SHALL SOUND IN CONTRACT, TORT, STRICT LIABILITY, PURSUANT TO STATUTE, OR FOR NEGLIGENCE. BUYER SHALL PASS THESE TERMS TO SUBSEQUENT BUYERS AND USERS OF GOODS. SELLER EXCLUDES AND DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT, WHETHER IN CONTRACT, WARRANTY, INDEMNITY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING DIRECTLY OR INDIRECTLY OUT OF THE PERFORMANCE OR BREACH OF THESE TERMS, SHALL SELLER BE LIABLE FOR (a) ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL OR SIMILAR DAMAGES SUCH AS LOSS OF USE, LOST PROFITS, ATTORNEYS’ FEES OR DELAY DAMAGES, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR CAUSED BY SELLER’S BREACH OF THIS AGREEMENT, (b) ANY CLAIM THAT PROPERLY IS A CLAIM AGAINST THE MANUFACTURER, OR (c) ANY AMOUNT EXCEEDING THE AMOUNT PAID TO SELLER FOR GOODS FURNISHED TO BUYER WHICH ARE THE SUBJECT OF SUCH CLAIM(S). ALL CLAIMS MUST BE BROUGHT WITHIN ONE YEAR OF SHIPMENT OF GOODS.
4. Unless otherwise specifically agreed to by Seller in writing, all delivery times and dates are estimates only and Seller does not guaranty the timeliness of any shipment. Seller shall not be liable for delay or default in delivery resulting from any cause beyond Seller’s reasonable control, including, but not limited to, governmental action, strikes or other labor troubles, fire, damage or destruction of goods, wars (declared or undeclared), acts of terrorism, manufacturers’ shortages, availability or timeliness of transportation, materials, fuels, or supplies, and acts of God (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event: (a) the time for Seller’s performance shall be extended reasonably and the Parties shall adjust all affected dates accordingly; (b) the purchase price shall be adjusted for any increased costs to Seller; and (c) Buyer shall not be entitled to any other remedy.
5. Unless otherwise quoted, prices shall be those in effect at time of shipment, which shall be made F.O.B. shipping point. Title and risk of loss shall pass to Buyer at the applicable F.O.B. point, which for goods not delivered in Seller’s own vehicles shall be when Seller delivers the goods to the common carrier.
6. Unless otherwise agreed in writing, payment terms are net 30 days from delivery, payable in United States of America (“U.S.”) dollars. No retainage shall be withheld from Seller by Buyer. Buyer’s obligation to pay seller is not contingent upon receipt by buyer of payment from buyer’s customer or anyone else. All orders are subject to Seller’s continuing approval of Buyer’s credit. If Buyer’s credit is not approved or becomes unsatisfactory to Seller then Seller, 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, Seller may in its discretion require an advance deposit of up to 100% of Seller’s selling price for any specially manufactured goods ordered by Buyer hereunder. Seller accepts the following methods of payment: check, credit card, ACH, or cash. If your preferred method of payment is credit card, the credit card must be provided at the time the order is placed. Otherwise a three percent (3%) processing fee will be added to Buyer’s account if Buyer uses a credit card to pay at a later date. Buyer authorizes Seller to apply all payments made at Seller’s discretion unless otherwise directed in writing at the time of payment. Past due accounts bear interest at the lesser of 1.5% per month or the maximum rate permitted by applicable law, continuing after Seller obtains judgment against Buyer. Seller may exercise setoff or recoupment to apply to or satisfy Buyer’s outstanding debt. Buyer shall have no right of setoff hereunder, the same being expressly waived hereby. Seller expressly reserves its right to file liens if payment is not received for its materials and expressly disclaims any waiver of lien rights language which may be contained in any future agreements between the Parties hereto. Seller reserves all rights to invoice and be paid for materials provided to Buyer and any terms contained in any of Buyer’s purchase orders or other documents that purport to limit in any way the time or manner within which Seller may invoice are hereby waived by Buyer.
7. Buyer shall pay Seller all costs and expenses of collection, suit, or other legal action brought as a result of the commercial relationship between them, including, but not limited to, all reasonable attorneys’ and paralegals’ fees, and collection costs, incurred pre-suit, through trial, on appeal, and in any administrative or bankruptcy proceedings.
8. This Agreement, Buyer’s account, and the business relationship between Buyer and Seller shall be governed by and construed in accordance with the laws of North Carolina without regard to conflicts of laws rules. The Parties agree that any legal action arising under or related to this Agreement shall be brought only in Guilford County, North Carolina, and any right to object to such venue or to assert the inconvenience of such forum is hereby waived.
9. If Buyer fails to comply with these Terms, Seller may terminate or restrict any order immediately upon notice to Buyer. Buyer certifies that it is solvent and that it will advise Seller immediately if it becomes insolvent. Buyer agrees to send Seller written notice of any changes in the form of ownership of Buyer’s business within 5 days of such changes. Buyer and Seller are the only intended beneficiaries of this document, and there are no third party beneficiaries.
10. 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.