These terms and conditions (“Terms”) apply to the submission by an applicant (“Customer”) of a credit application for Frensco Building Products Inc. (“Seller”). Your submission of the application to Seller is an agreement to be bound by these Terms. These Terms are subject to change by Seller without prior written notice at any time, in its sole discretion, and this Application/Agreement is conditioned upon Seller’s approval of the Customer for credit.
1. Acceptance of Terms. Customer acknowledges and agrees the agreement between Seller and Customer relating to the goods and/or materials (“Products”) sold by Seller to Customer. Customer’s acceptance of the Products is expressly conditioned on Customer’s acceptance of these Terms and Conditions. Customer’s acceptance is limited to these Terms and Conditions, and no different, inconsistent and/or additional terms and conditions submitted by Customer in acknowledging or accepting these Terms and Conditions or in issuing any purchase orders, releases, shipping instructions or other documents in connection with the Products, whether prior or subsequent, shall modify or amend these Terms and Conditions or be valid or binding against Seller, unless specifically accepted by Seller in writing. In the event of any conflict, discrepancy or inconsistency between these Terms and Conditions and the terms and conditions contained in any document submitted by Customer, these Terms and conditions shall govern even if Customer’s document expressly limits acceptance to Customer’s terms and conditions. No course or pattern of dealings or conduct between Seller and Customer and no usage of trade shall be relevant to determine the meaning or intent of these Terms and Conditions even though the accepting or acquiescing party has knowledge of the nature of the performance and an opportunity for objection.
2. Order. Customer may submit purchase orders (collectively, “Purchase Order”) to Seller orally, telephonically, electronically or in writing at prices quoted by Seller. Seller may accept or reject any order. All sales by Seller to Customer are subject to the terms and conditions set forth on this form. A binding sale contract will arise only when Seller confirms the customer’s order in writing or begins execution of the customer’s order, as price quotations or other communications from Seller do not constitute offers. Seller reserves the right to discontinue the manufacture or sales of any product at any time. The terms of this Application/Agreement may only be altered with specific written consent from a corporate officer of Seller addressed to Customer.
3. Changes. Orders arising hereunder may be changed or amended only by written agreement signed by both Customer and Seller, selling forth the particular changes to be made and the effect, if any, of such changes on the price and time of delivery. Customer may not cancel and the Purchase Order unless such cancellation is expressly agreed to in writing by Seller. In such event, Seller will advise Customer of the total charge for such cancellation, and Customer agrees to pay such charges, including, but not limited to, storage and shipment costs, costs of producing nonstandard materials, costs of purchasing non-returnable materials, cancellation costs imposed on Seller by its suppliers, and any other cost resulting from cancellation of the Purchase Order by Customer which is permitted by Seller. Certification of such costs by Seller’s independent public accountants shall be conclusive on the parties hereto.
4. Shipment and Delivery. Information about delivery periods is indicative and non-binding unless a written confirmation form Seller expressly states the contrary. Seller shall use commercially reasonable efforts to meet such shipping dates, but Seller will not be liable for any direct or indirect costs or damages, including without limitation incidental or consequential damages, resulting from late deliveries. For deliveries by Seller’s trucks, Customer shall provide suitable roadways or approaches to points of delivery to the extent controlled by Customer. Partial deliveries are permitted.
5. Payment. Customer shall pay all invoiced amounts due to Seller upon receipt of Seller’s invoice. Customer shall make all payments in U.S currency to the account and address directed by Seller. Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
6. Late Payment. If the Customer (i) fails to make a payment when due, (ii) becomes insolvent, (iii) undergoes a change in ownership, (iv) files a voluntary bankruptcy proceeding, or has an involuntary bankruptcy petition filed against it without obtaining a discharge of that petition within 75 days, (v) has a receiver appointed over all or any of its assets, or (vi)takes any other action that Seller determines in its sole discretion adversely impacts the conditions under which credit was extended, then Customer is in material breach of the contract and: (a) all amounts outstanding to all Seller companies will become due immediately; (b) Seller has the right to cancel any pending orders; and (c) Customer shall pay a finance charge on all amounts outstanding at a rate equal to amount currently charged by the applicable Seller company, not to exceed the lesser of 1.5% per month or the highest rate permitted by applicable New York law, all without prejudice to any other rights Seller may have, including any right to claim actual damages. Customer will pay all costs of collection of any amounts due to Seller, including court costs, reasonable fees and charges of attorneys and their firms (or in-house counsel) and other expenses. In the event of a default Seller may, in its sole discretion, apply any payments made first to attorney’s fees and any costs/expenses, then to any accrued and unpaid interest, and then to any remaining balance due and owing under the respective outstanding invoices.
7. Quotation. All quotations are valid for 15-30 days from date of issue on standard materials and 24 hours on any lumber, panel, and metal products unless otherwise stated in writing, subject to manufacturers price adjustments to reflect any increased costs in effect at the time of shipment.
8. Risk of Loss. Delivery of Products shall be made EXW Seller’s facility (Incoterms 2010). Unless otherwise set forth in an applicable Sales Confirmation, Seller shall not be liable for any Product(s) lost, damaged, or destroyed while in transit, and Customer acknowledges and agrees that any risk of such loss, damage, or destruction transfers to, and is assumed by, Customer upon delivery of Products(s) to a common carrier or when otherwise placed in transit. As collateral security for the payment of the Products, Customer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted hereunder constitutes a purchase money security interest under the Uniform Commercial Code (“UCC”)
9. Returns and Claims. Written authorization must be obtained from Seller prior to return of any Products. Upon Seller’s verification of defect, Seller retains the option to replace or issue credit, at seller’s option, for the defective product. Seller shall have the right, prior to return, to inspect at Customer’s warehouse for any Products claimed to be defective or nonconforming. Risk of loss or damage to any Products returned to Seller for adjustment shall remain with Customer until they are received by Seller. Shipping charges for returned Products will be paid by Seller only for Products replaced pursuant to warranty. Otherwise, such charge will be Customer’s responsibility. Any Products returned for credit must be in fully sellable condition as new merchandise and must be accompanied with an invoice, and subject to Seller’s return policies, including handling charges.
10. Purchase Money Security Interest. As collateral security for the payment of the purchase price of the goods, the Customer hereby grants to Seller, a lien on the security interest in and to all of the right, title, and interest of the Customer to the goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto the replacements or modifications thereof, as well as all proceeds of the foregoing. The security interest granted constitutes a purchase money security interest under the Uniform Commercial Code and analogous state law.
11. Governing Law and Litigation. The validity, construction and performance of this application and performance of each contract to which these Terms and Conditions apply is governed by New York law. The parties agree to the non-exclusive jurisdiction of the State and Federal courts for Queens, New York to hear any disputes relating to transaction between the parties, or each contract to which these Terms and Conditions apply, without prejudice to Seller’s right to bring litigation in the courts of Customer’s location. SELLER AND THE CUSTOMER VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER OF THEM MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS APPLICATION AND EACH CONTRACT TO WHICH THESE TERMS AND CONDITIONS APPLY.
12. Anticorruption. Customer shall comply with all applicable anti-bribery laws of the USA (including the Foreign Corrupt Practices Act) or other country. If Seller determines reasonably and in good faith that there may be a breach of any of these laws, Seller has the right to take any action necessary to avoid potential liability to Seller.
13. Indemnification. Customer shall indemnify, defend and hold Seller harmless from all claims, damages and expenses (including attorney’s fees) arising out of Customer’s (a) breach of this Application/Agreement, (b) possession, use, handling, storage, sale, processing or any disposition of the goods, and (c) errors, omissions, negligence or other wrongful conduct of Customer and its customers, users, agents, or subcontractors. In any matter to which this paragraph applies, Seller shall have the right to select and retain counsel of its own choosing, all at Customer’s expense, and to participate in the defense.
14. Miscellaneous. Customer may not assign any order or contract without Seller’s written consent. If any term or condition of this Application/Agreement is held by a court of competent jurisdiction be unenforceable, the remaining terms and conditions shall remain in full force and effect. This Application/Agreement is binding upon and shall inure to the benefit of the respective successors and permitted assigns of the parties, but Customer shall not assign or otherwise transfer this Application/Agreement without the express written consent of Seller. Any attempted assignment or transfer without the required consent of Seller, including a change in control of Customer, will result in a material breach, subject to the terms of paragraph 6. This Application/Agreement is not requirement contract, and nothing herein requires Customer to purchases from Seller, nor Seller to sell to Customer. To the extent Seller and Customer currently have a written agreement as to the terms/conditions of sale, this Application/ Agreement shall supersede and control to the extent the provisions of this Application/Agreement conflict with or were not included in any previous written agreement(s).