ARTICLE 1. DEFINITIONS The term “Contract” means the written purchase order, contract, or agreement relating to the sale of Asphalt, mix, or other rock materials from Seller to Buyer. The term “Seller” means E.R. Snell Contractor, Inc. or its subsidiary(ies) or affiliate(s) providing the Products or services under the Contract. The term “Buyer” means any individual, corporation, government, or other entity that is to purchase the Products or services pursuant to the Contract. The term “Products” means the goods or materials sold by Seller and purchased by Buyer under the Contract. The term “Parties” means the Buyer and Seller.
ARTICLE 2. CONTRACT CANCELLATION, AMENDMENT Once Seller has issued a confirmation of an order, the applicable Contract shall not be cancelled or amended by Buyer without prior written notice of such cancellation or amendment to Seller. In the event of cancellation or amendment of a Contract, Seller may charge Buyer a fee for the cancellation or amendment.
ARTICLE 3. PRICING, PRICE ADJUSTMENTS Product pricing and taxes (where applicable) will be invoiced based on the price set forth in the Contract.
ARTICLE 4. TAXES Any tax, excise, or governmental charge imposed upon the value added to or the production, sale, storage, or use of any Product sold under the Contract, which Seller may be required to pay, shall be paid by Buyer to Seller if not expressly included in the purchase price for the Product. Buyer shall provide Seller, upon request, with properly completed exemption certificates for any tax from which Buyer claims exemption for which Buyer will indemnify Seller for any inaccuracy therein. Seller may terminate this Contract on thirty (30) days prior written notice if prevented from passing through to Buyer any tax or charge, whether or not of the same class or kind listed above. If Buyer fails to provide the appropriate exemption certificate, Buyer will remain liable for any such taxes.
ARTICLE 5. REMEDIES No remedy of Seller against Buyer is intended to be exclusive, but each remedy of Seller shall, to the maximum extent allowed by law, be cumulative and in addition to any other remedy referred to herein or otherwise available to Seller. The exercise or beginning to exercise by Seller of any one or more remedies shall not preclude the simultaneous or later exercise by Seller of other remedies. All remedies of Seller shall, to the maximum extent allowed by law, survive any and all terminations of any agreements between Seller and Buyer. To the maximum extent allowed by law, no delay or failure on the part of Seller in exercising any right, remedy, power, or privilege of Seller shall operate as a waiver thereof.
ARTICLE 6. INVOICING Seller will determine the actual quantity of Product and invoice Buyer. Buyer shall remit payment to Seller in U.S. currency in accordance with the payment term designated in the applicable invoice, not to exceed thirty (30) days. If credit is extended, Seller at any time may revoke credit or modify the terms and conditions of future extensions of credit. Buyer agrees to pay all invoices within the terms stated on such invoice not to exceed thirty days and agrees to all terms contained in invoices supplied by Seller, as may be amended from time to time. If the applicable invoice does not provide a payment term, payment is due within thirty (30) days after the invoice date. In the event payment is not timely made, Buyer also agrees to pay a time-price difference charge (service charge) of the lesser of 1 ½ % per month (18 % per annum) or the maximum lawful rate on all overdue amounts commencing the day after the due date and to pay all collection costs incurred by Seller in enforcement of the Contract, including court costs, actual reasonable attorney’s fees, and collection agency fees, within the standards of the industry, but not less than 25% of the unpaid amount of principal plus any accumulated service charge, all without relief from valuation and appraisement laws. In addition, in the event Buyer fails to make timely payment, any or all future sales of Product by Seller to Buyer may be withheld by Seller without waiving any right, power, remedy, or privilege of Seller. Buyer will also be responsible for any charges applied because of any check, debit, or electronic transfer not honored.
ARTICLE 7. TITLE; RISK OF LOSS Title, risk of loss or damage, and liability for any Product priced F.O.B. point of origin shall pass to Buyer as Product enters the receiving equipment.
ARTICLE 8. INDEMNIFICATION Buyer agrees to release, indemnify, and hold harmless Seller from any and all claims and liability for any damage to property or injury to person or persons resulting from, or alleged to have resulted from, Buyer’s purchase, use, sale, or distribution of the Product sold by Seller.
ARTICLE 9. MEASUREMENT/INSPECTION Any claim for deficiency in quantity or quality of any Product and/or service shall be conclusively waived unless Buyer, within thirty (30) days after Buyer first learns of the deficiency, gives written notice of such claim to Seller at its indicated address; and, where practicable, gives Seller or Seller's agents an opportunity to inspect such Product and/or service. Any claim of any other kind (not relating to quantity or quality) based on or arising out of any transaction hereunder shall be waived conclusively unless Buyer gives written notice to Seller at its indicated address within thirty (30) days after the event, action or inaction to which such claim relates. Quality disputes will be resolved through a testing method reasonably agreed upon by Seller and Buyer.
ARTICLE 10. LIMITED WARRANTY SELLER WARRANTS THAT IT HAS GOOD TITLE TO THE PRODUCTS SOLD HEREUNDER. IN ADDITION, SELLER WARRANTS THAT, AT THE TIME PRODUCT IS LOADED, PRODUCT SOLD HEREUNDER MEETS THE MUTUALLY AGREED-UPON CURRENT SPECIFICATIONS FOR THE PRODUCT, AS SET FORTH IN THE AGREEMENT OR, IF NO AGREEMENT, IN THE SALES CONFIRMATION. UPON THE EARLIER OF SUCCESSFUL COMPLETION OF OFFICIAL TESTING OF THE PRODUCTS OR 180 DAYS AFTER DELIVERY OF THE PRODUCT, ALL WARRANTIES AND SELLER’S OTHER DUTIES WITH RESPECT TO THE PRODUCTS SHALL TERMINATE AND BE CONCLUSIVELY PRESUMED TO HAVE BEEN SATISFIED, AND ALL LIABILITY HEREUNDER SHALL TERMINATE AND NO ACTION FOR BREACH OF ANY WARRANTY OR DUTY MAY BE COMMENCED. ANY OTHER WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IS EXPRESSLY DISCLAIMED. ANY WARRANTY OR GUARANTEE IS LIMITED TO REPAIR OR REPLACEMENT OF THE PRODUCTS.
ARTICLE 11. LIMITATION OF LIABILITY Defective or nonconforming Products may be replaced by Seller without additional charges, or in lieu thereof, at Seller’s option, Seller may refund the purchase price upon return of the Products at Seller’s expense. NOTWITHSTANDING THE ABOVE, REGARDLESS OF THE CIRCUMSTANCES, SELLER’S TOTAL LIABILITY TO BUYER FOR ANY AND ALL CLAIMS, LOSSES OR DAMAGES ARISING OUT OF ANY CAUSE WHATSOEVER, WHETHER BASED IN CONTRACT, NEGLIGENCE OR OTHER TORT, STRICT LIABILITY, STATUTE, BREACH OF WARRANTY OR OTHERWISE, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCTS IN RESPECT TO WHICH SUCH CAUSE AROSE. IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, LOST PROFITS, LOST SALES, PUNITIVES DAMAGES, INJURY TO PERSONS OR PROPERTY, OR ANY OTHER COMMERCIAL LOSS, DAMAGE OR EXPENSE ARISING OUT OF OR IN CONNECTION WITH THE USE, LOSS OF USE, PERFORMANCE OR REPLACEMENT OF THE PRODUCT. Any cause of action that Buyer may have against Seller which may arise under this Contract must be commenced within one (1) year after the cause of action has accrued. The remedies set forth in this Limitation of Liability section are EXCLUSIVE and no other remedy or remedies are available to Buyer. Buyer and Seller agree that the remedies contained herein are adequate remedies.
ARTICLE 12. BUSINESS STANDARDS Buyer shall prevent its employees, agents, or representatives from making, providing, or offering gifts, entertainment, payments, loans, or other consideration to employees, agents, or representatives of Seller for the purpose of influencing those persons to act contrary to the best interests of Seller. This obligation shall apply to the activities of the employees of Buyer in their relations with the employees of Seller and their families and/or third parties. In addition, upon request, each Party shall make known to the other its current policies on ethics and conflicts of interest and other policies, and shall be expected to conduct its activities in compliance with its own policies.
ARTICLE 13. CONFIDENTIALITY Buyer agrees to treat as confidential any proprietary or confidential information disclosed to it by Seller, including the contents of the Contract and the pricing of the Product, and except as necessary for the performance thereof, or as required by law, shall make no disclosures with respect to such matters without the express written consent of Seller.
ARTICLE 14. MODIFICATION No modification of a Contract shall be of any force or effect unless such modification is in writing and signed by the Parties and no modification shall be effected by the acknowledgment or acceptance of purchase order forms containing terms or conditions at variance with those set forth herein. With respect to these Terms and Conditions of Sale for Asphalt, none of the terms set forth herein may be modified, except as permitted herein, without Seller’s signature.
ARTICLE 15. ASSIGNMENT Seller may assign its rights and obligations hereunder to any corporation, subsidiary of or affiliated with Seller or any buyer that buys all or substantially all of the assets related to the performance of this Contract. Buyer shall not assign this Contract in whole or in part without the prior written consent of Seller.
ARTICLE 16. WAIVER No waiver by either Party of any breach of any of the terms and conditions herein contained shall be construed as a waiver of any succeeding breach of the same or any other term or condition.
ARTICLE 17. CHOICE OF LAW AND JURISDICTION This Contract shall be construed and enforced under the laws of the State of Georgia, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. The Parties submit to the exclusive personal jurisdiction of the courts of Gwinnett County, Georgia, with respect to any matter or thing arising out of this Contract or pursuant thereto.
ARTICLE 18. ENTIRETY OF AGREEMENT Except to the extent Buyer and Seller have both signed a separate document governing the sale of Products or provision of the services (including a Credit Application for an Asphalt Account), these Terms and Conditions of Sale for Asphalt constitute the sole and exclusive agreement between Seller and Buyer for the purpose stated herein. If such a separate agreement signed by both Parties exists and any of these Terms and Conditions of Sale for Asphalt are inconsistent with the terms of that agreement, the terms of that agreement shall govern. Should any provision of the Terms and Conditions of Sale for Asphalt be determined to be inconsistent with or contrary to applicable law, such provision will be deemed amended or omitted to conform without affecting any other provision or the validity of the Terms and Conditions of Sale for Asphalt. Any document incorporating or otherwise accepting these Terms and Conditions of Sale for Asphalt, whether signed manually or with an electronic signature, and transmitted to Seller in electronic format by electronic transmission, shall be deemed to have the same legal effect as an original signed copy.
General Provisions of Sale for Asphalt
This application and the information contained herein is a request for the extension of credit. The Applicant authorizes E.R. Snell Contractor, Inc. to obtain a written or oral credit report from any credit reporting agency. The Applicant further authorizes any bank or commercial business with whom the Applicant is doing or has done any type of business to give any and all necessary information to E.R. Snell Contractor, Inc. to re-investigate the Applicant’s credit status from time to time, as E.R. Snell Contractor, In. reserves the right to limit or terminate any extension of credit to the Applicant.
The undersigned does hereby certify that he/she is authorized to sign the Application on behalf of the Applicant; that the information contained herein is true; that the Applicant will advise E.R. Snell Contractor, Inc. in writing, at the address shown below, if there are any changes which occur with respect to any of the information and until such advice is given, E.R. Snell Contractor, Inc. may continue to rely on the information; the Applicant will promptly pay when due and all indebtedness that Applicant may now or hereafter owe to E.R. Snell Contractor, Inc.
