Terms and Conditions of Sale
All product sales of Continental Building Materials, its subsidiaries or affiliates (collectively, “Continental BM”) shall be subject to the following Terms and Conditions of Sale (“Terms and Conditions of Sale”):
1. Any order from a purchaser of Continental BM products (“Purchaser”), whether relating to a quotation or offer by Continental BM (“Continental BM Quotation”), or otherwise, shall not constitute an acceptance by Continental BM until such order has been accepted by Continental BM in writing.
2. Continental BM reserves the right to modify any Continental BM Quotation until written acceptance by Continental BM of an applicable order from Purchaser.
3. These Terms and Conditions of Sale shall be applicable to, and incorporated by reference into, any sale, or documentation relating to the sale, of Continental BM’s products. To the extent there is a conflict between these Terms and Conditions of Sale, and the terms and conditions of any other documentation, including without limitation, a purchase order or request for quotation, such conflicting terms and conditions are rejected and are of no effect.
4. Continental BM reserves the right to correct all typographical and clerical errors in any Continental BM Quotation, proposal, acknowledgment, or invoice.
5. Continental BM reserves the right to revise or otherwise modify these Terms and Conditions of Sale from time to time. Any revised Terms and Conditions of Sale will be posted on Continental BM’s website, and will thereafter be immediately effective for sales of Continental BM products.
6. Stated shipment and delivery times for Continental BM products are estimates which shall commence upon (i) the date of Continental BM’s written acceptance of Purchaser’s orders, and (ii) Continental BM’s receipt of all required information from Purchaser. Continental BM shall not be liable to Purchaser or Purchaser’s customers for any damages relating to failure to deliver Continental BM products on a specified date.
7. Purchaser shall not return for credit or refund any Continental BM products without the prior written approval of Continental BM.
8. Any freight costs relating to Continental BM products returned due to Purchaser’s error shall be borne by Purchaser. Subject to the preceding sentence, all returns must be accompanied by a written return authorization issued by Continental BM, such that any unauthorized returns will be rejected.
9. Prior to each use of any product of Continental BM, the user must always read and follow the warnings and instructions on the product’s most current product label, Product Data Sheet, and Safety Data Sheet. Nothing contained in any Continental BM literature or materials relieves the user of the obligation to read and follow the warnings and instructions for each Continental BM Product as set forth in the current product label, Product Data Sheet and Safety Data Sheet prior to use of the product.
10. LIMITED WARRANTY. Continental BM warrants product for one year from the date of purchase to be free from manufacturing defects if used as directed within the product’s shelf life. User determines suitability of product for intended use and assumes all risks. Purchaser’s and/or User’s sole remedy shall be limited to the purchase price or replacement of this product exclusive of any labor costs. NO OTHER WARRANTIES EXPRESS OR IMPLIED SHALL APPLY INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CONTINENTAL BM SHALL NOT BE LIABLE UNDER ANY LEGAL THEORY FOR SPECIAL OR CONSEQUENTIAL DAMAGES. CONTINENTAL BM SHALL NOT BE RESPONSIBLE FOR THE USE OF THIS PRODUCT IN A MANNER TO INFRINGE ON ANY PATENT OR ANY OTHER INTELLECTUAL PROPERTY RIGHTS HELD BY OTHERS.
11. All prices of Continental BM products shall be in United States Dollars (USD) (“Product Pricing”). Continental BM may change its Product Pricing at any time without notice.
12. Unless otherwise agreed to in writing between Continental BM and Purchaser, (i) the delivery terms of the Continental BM products shall be Ex Works from the applicable Continental BM facility, and (ii) risk of loss of the Continental BM products shall pass to Purchaser upon delivery to Continental BM’s designated carrier.
13. Unless otherwise agreed to in writing between Continental BM and Purchaser, payment for Continental BM products shall be due simultaneously with delivery of such products.
14. If a payment is not made by Purchaser when due, a late charge will be paid by Purchaser from the due date until the date of the actual collection by Continental BM, calculated at the highest interest rate permitted by law (“Late Charge”). Such Late Charge shall be in addition to, and not in lieu of, Continental BM’s other rights and remedies for Purchaser’s default or nonperformance.
15. Title to all Continental BM products sold to Purchaser shall remain in the name of Continental BM until full payment has been made by Purchaser, and to the extent applicable, Continental BM reserves a security interest in, and Purchaser hereby grants to Continental BM, a security interest in the Continental BM products sold pursuant to Purchaser and the proceeds thereof, with the right of Continental BM to take possession and dispose of the Continental BM products and such proceeds if any such amount is not paid when due. Purchaser agrees to execute and deliver, upon Continental BM’s request and at Purchaser’s expense, any and all instruments, including without limitation, financing statements under the Uniform Commercial Code (“UCC”) and amendments thereto, which Continental BM may deem necessary or desirable in order to evidence record or perfect such title and security interest, and Purchaser specifically authorizes Continental BM to file such instruments with such information in any jurisdiction deemed necessary by Continental BM without the signature or any authorization of Purchaser, to the extent permitted by law. With each order, Purchaser represents to Continental BM that Purchaser is solvent. In the event of Purchaser’s default, Continental BM shall have the rights of a secured party, including, without limitation, those rights under the UCC.
16. Purchaser shall indemnify, defend, and hold harmless Continental BM Corporation, its parent, subsidiaries, and affiliates, and its and their officers, directors, employees, agents, successors and assigns from and against, any and all losses, lawsuits, judgments, liabilities, damages, injuries, fines, costs or expenses (including reasonable attorney’s fees and expenses) (collectively, “Losses”), including but not limited to, Losses incurred in connection with or alleged with regard to, or otherwise relating to any claim, demand, proceeding, action, or suit by any third party (collectively, “Claims”), in each case arising from Purchaser’s use, application, or installation of Continental BM products, or otherwise relating to Purchaser’s obligations under these Terms and Conditions of Sale.
17. Notwithstanding anything to the contrary, Continental BM shall not be liable for any failure to perform or delay to the extent caused by any event or circumstance which is beyond the control of Continental BM, including without limitation, Acts of God, fires, floods, hurricanes, earthquakes, accidents, explosions, wars, acts of terrorism, embargoes, delays of carriers, sabotage, strikes, labor disturbances, act of governmental authority, state of emergency, pandemic, epidemic, shortages of power, or lack of, or inability to obtain, sources of materials, fuel, supplies, or equipment.
18. Detection of fraud is critical in preventing business losses. To prevent losses from fraudulent activities, including unauthorized communications and/or unauthorized access to financial, account, or other sensitive information (“Fraudulent Activities”), Continental BM encourages Purchaser to implement measures within its systems and processes to detect Fraudulent Activities. For any investigation relating to Fraudulent Activities, Purchaser shall cooperate in such investigation and take all appropriate corrective measures. To the extent that Purchaser incurs any losses relating to Fraudulent Activities, Purchaser assumes responsibility and Continental BM shall not be liable for any such losses, including financial or reputational.
19. Continental BM does not routinely change banking information, so all emails regarding banking changes should be treated as an unauthorized request.
20. These Terms and Conditions of Sale constitute the entire agreement between Continental BM and Purchaser relating to the sale of Continental BM’s products.
21. These Terms and Conditions of Sale and the obligations of Purchaser hereunder shall not be assigned, delegated, or transferred, by operation of law or otherwise, without the prior written consent of Continental BM.
22. If any provision of these Terms and Conditions of Sale is held by a court of competent jurisdiction to be void or unenforceable, such provision shall have no effect upon the enforceability of any other provision of these Terms and Conditions of Sale.
23. CHOICE OF LAW. These Terms and Conditions of Sale, and all matters relating to the sale of Continental BM products, shall be governed by, and construed in accordance with, the laws of the State of California, without giving effect to its conflicts of laws principles.
24. FORUM/JURISDICTION. Any dispute relating to these Term and Conditions of Sale, and all matters relating to the sale of Continental BM products, shall be subject to the exclusive jurisdiction and venue in the state and federal courts located in the State of California.