CENTEX MATERIALS LLC
TERMS AND CONDITIONS OF SALE OF GOODS
(Applicable to all purchases and sales of CENTEX MATERIALS LLC products (“Products”))
1. ACCEPTANCE. These Terms and Conditions contain the full understanding of the Parties and supersede all other agreements, written or oral, regarding the subject matter set forth herein. These Terms and Conditions shall supersede the terms and condition of Buyer’s order and no prior or subsequent understanding, agreement, term, conditions or trade custom at variance with or supplemental to these Terms and Conditions shall be binding on the Seller. Seller’s offer to sell Products to Buyer is expressly conditioned on Buyer’s acceptance of these Terms and Conditions. Execution by Buyer of any documentation or instrument incorporating these Terms and Conditions and/or acceptance or delivery of the Products hereunder shall constitute acceptance of these Terms and Conditions. Products will be deemed accepted by Buyer unless Seller is notified in writing of non-acceptance within ten (10) days after receipt by Buyer. Any claim with respect to a Product sold hereunder, including claims based on shortages of goods, will be waived if not brought in writing within ten (10) days of receipt of shipment or delivery. Buyer’s rights with respect to Products rightfully rejected will be limited to the rights set forth in Article 7 below. No Product may be returned without Seller’s written consent.
2. TITLE AND RISK OF LOSS. Unless otherwise expressly agreed in writing, Products are to be delivered to Buyer at Seller’s facility and such Products shall be F.O.B. Seller’s facility and title to and risk of loss of the Products purchased hereunder shall pass to Buyer upon pick up by Buyer at Seller’s facility. Buyer represents that any such carrier shall be a motor carrier under 49 U.S.C. 13102 (14), duly registered with the Department of Transportation pursuant to 49 U.S.C. 13902 and 13905 with a Motor Carrier Safety Rating of “Satisfactory.”
3. WEIGHT AND SHIPMENT. Unless Buyer provides transportation or indicates shipping instructions at the time of placing its order, Seller shall, without liability, select the route and carrier by which shipment will be forwarded. Except as otherwise agreed herein, quotations and sales are F.O.B. point of shipment, and weight as determined by Seller’s scales and methods of measurement shall govern. Freight expense, standby or detention charges, fleeting, local switching, demurrage, car service or destination, terminal or cleaning charges shall be borne by Buyer. BUYER ACKNOWLEDGES AND AGREES THAT PRODUCT IS LOADED INTO TRUCKS AS REQUESTED BY BUYER (OR ITS AUTHORIZED CARRIER). BUYER ASSUMES ALL RESPONSIBILITY FOR SUCH LOADING AND TRANSPORTATION OF THE PRODUCT (INCLUDING ENSURING THAT THE PRODUCT IS PROPERLY SECURED FOR TRANSPORTATION), AND HEREBY IRREVOCABLY DISCLAIMS ANY AND ALL CLAIMS, RIGHTS OR CAUSES OF ACTION AGAINST SELLER WITH RESPECT THERETO.
4. TERMS OF PAYMENT. Upon approval of Buyer’s credit, all invoices will be due at the gross amount and payable not later than 30 days after the invoice date. Any amount unpaid after such date will bear interest from the invoice date until paid, at the interest rate of 1½% per month, or at the maximum rate allowed by law, whichever is less. In addition to the interest, upon any breach or default, Seller shall be entitled to all rights under the Uniform Commercial Code, all rights in law and at equity, all court costs, collection agency and attorney’s fees and expenses. If at any time financial responsibility of the Buyer becomes impaired or unsatisfactory to Seller, cash payment or security satisfactory to Seller may be required in advance of shipment. If Buyer fails to deliver such cash payment or security, fails to comply with any other term of sale or fails to make a payment when due, Seller reserves the right to cancel all unfilled orders without notice and Buyer shall remain liable for all unpaid accounts, including service charges. Each shipment shall be considered a separate and independent transaction and payment therefor shall be made accordingly.
5. SECURITY INTEREST. Seller shall have the right, at its option, to retain a security interest in the Products sold or shipped and to require Buyer to execute a security agreement and financing statements to be filed under the application filing provisions of the Uniform Commercial Code of the state in which the Product is located. Buyer hereby grants such security interest to Seller.
6. LIMITED WARRANTY. The Products shall conform to ASTM, ACI or other state or local specifications (if and as applicable) to such Products as of the time title and risk of loss pass to Buyer per Section 2 hereof. Seller, having no control over the use of the Product does not guarantee finished work, nor shall Seller be responsible for the condition of the Product after delivery to the Buyer. Charges incident to inspection or testing made by or on behalf of Buyer to determine compliance with specifications shall be paid for by Buyer. EXCEPT FOR THE LIMITED WARRANTY MADE ABOVE IN THIS ARTICLE 6, SELLER SPECIFICALLY DISCLAIMS ANY OTHER WARRANTY, INCLUDING ANY EXPRESS WARRANTY, ANY IMPLIED WARRANTY OF MERCHANTABILITY OF GOODS, AND ANY IMPLIED WARRANTY OF FITNESS OF GOODS FOR ANY PARTICULAR PURPOSE, ALL OF SUCH WARRANTIES ARE EXCLUDED AND SPECIFICALLY DISCLAIMED BY SELLER.
7. LIMITATION OF REMEDIES. THE SOLE AND EXCLUSIVE REMEDY OF BUYER OR ANY OTHER PARTY AGAINST SELLER FOR ALL CLAIMS OF ANY KIND, WHETHER BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, FOR ANY LOSS OR DAMAGES ARISING OUT OF, CONNECTED WITH OR RESULTING FROM, THE SALE OR FAILURE TO SELL PRODUCTS SHALL BE REPLACEMENT OF SUCH PRODUCT SOLD HEREUNDER, F.O.B SELLER’S PLANT OR TERMINAL OR, AT SELLER’S OPTION, REFUND OF THE PURCHASE PRICE PAID FOR THE PRODUCT. NO OTHER REMEDY SHALL BE AVAILABLE TO BUYER (INCLUDING, BUT NOT LIMITED TO INDIRECT OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST SALES, PUNITIVE DAMAGES, INJURY TO PERSONS OR PROPERTY OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL LOSS.)
8. TECHNICAL INFORMATION; HAZARDS AND PRECAUTIONAL PROCEDURES. Any technical information or assistance Seller or its affiliates provide is given and accepted at Buyer’s risk and is not a warranty or a specification. Buyer agrees that it will familiarize itself with all hazards and precautionary procedures with respect to the handling, transportation or use of the Product and will manage the Product accordingly. A Safety Data Sheet (SDS) with complete safety information is available from Seller. BUYER AGREES TO CONVEY THIS WARNING AND TO PROVIDE COPIES OF ALL APPROPRIATE SDS TO ALL PERSONS WHO MAY PURCHASE, USE OR COME INTO CONTACT WITH THE PRODUCTS.
9. INDEMNIFICATION. Seller shall not be liable to Buyer for, and Buyer agrees that it will indemnify and hold Seller, its members, managers, directors, officers, employees and agents (“Seller Indemnitees”) harmless from and against, any damage, injury of expense (including, without limitation, penalties and fines assessed by governmental authorities and reasonable attorneys’ fees and expenses) incurred by or asserted against any Seller Indemnitee by reason of, in whole part, any act or omission on the part of Buyer or any of its directors, officers, employees or agents. Such acts or omissions may include, but are not limited to, breaches of these Terms and Conditions, including failure to convey the warnings and safety information required by law, including the warnings and safety information contained and referenced herein.
10. DUTIES AND TAXES. All duties and taxes of any governmental authority payable in respect to the purchase and sale of goods and/or the delivery of the goods to the point of delivery are for the account of Buyer, except as otherwise set out herein.
11. FORCE MAJEURE AND ALLOCATION. Seller shall not be liable for any expense, loss or damage resulting from any failure or delay in manufacturing, shipping or delivering Products caused by Government actions, regulations, orders or rulings, acts of God, acts of war , acts of public enemy, fire, strikes, lockouts, breakdowns, accidents, inability to secure rail cars, trucks, barges or other materials, delays in transportation, acts or omissions of Buyer or any other events or other conditions beyond Seller’s control, whether similar or dissimilar to the above-mentioned acts or occurrences. During times of shortage or delay, Seller shall have the right to allocate in its discretion among its customers any available Product. In no event shall Seller be obligated to purchase material from others in order to enable it to deliver Product to Buyer hereunder.
12. GENERAL. Failure of Seller to exercise any right shall not be deemed a waiver of any rights of Seller. Any oral statements made by Seller’s salespersons about the Product do not constitute warranties, shall not be relied upon by Buyer, and are not part of the contract for sale. All of the terms and conditions of purchase and sale are embodied in this writing. If Buyer fails to comply with the terms of payment or with any other terms of sale, Seller shall have the right, in addition to all other rights hereunder and at law, to terminate any unfilled orders without liability. 13. GOVERNING LAW. Buyer’s order and all claims relating to or arising out of Buyer’s order and the Products shall be governed by the laws of the state where Seller’s facility is located.
13. GOVERNING LAW. Buyer’s order and all claims relating to or arising out of Buyer’s order and the Products shall be governed by the laws of the state where Seller’s facility is located.