1. Payment Terms. All sales are PAYABLE BY CASH AT THE TIME OF DELIVERY unless otherwise indicated on the face of the invoice. Payments on an approved open account are due and payable on the 10th of month following purchase. If any past due amounts appear on Buyer’s account, then cash discounts are not allowed. In case of transfer of business by Buyer, insolvency of Buyer, or suit or action against Buyer begun by any creditor, then the account becomes immediately due. All payments apply ﬁrst to accrued service charges, then to costs, expenses and penalties, and then to oldest past due invoices. A convenience fee may be imposed on purchases paid by credit card.
2. Service Charge. Amounts unpaid by the end of the month following purchase are past due and incur a SERVICE CHARGE of 1.75% per month (an ANNUAL PERCENTAGE RATE of 21%). Service Charges are compounded monthly.
3. Collection. If the account is referred to an attorney for collection, then Buyer agrees to pay reasonable attorney's fees and court costs. If a bond or lien is involved, then Seller shall also recover from the bond or lien (a) all service charges assessed against Buyer, and (b) reasonable attorney fees and court costs incurred (i) attempting to collect from Buyer or surety, or (ii) realizing on liens. A lien includes mechanics, material, construction, or other type of lien. A bond includes a payment, performance, or other kind of bond (such as a bond under the federal Miller Act, as amended, and its successors, or any state, municipal or other government bond law, or any private bond). A $20.00 charge is assessed on each returned check. Buyer agrees to pay expenses incurred in realizing on liens and security interests, and all penalties assessed by law.
4. Delay. Seller is not responsible for delays caused, or contributed to, by (a) accidents, (b) strikes, (c) riots, (d) shortage of material or labor at the producing mill, (e) carrier shortages, (f) interference with, obstruction or blocking of transportation routes, (g) damage to the carrier, (h) damage to goods by carrier, or (i) other causes beyond Seller’s control. No claims for loss or damage will be allowed Buyer. Seller shall execute order as soon as the cause of delay is removed and conditions permit. If delays are excusable, then Seller’s increased cost of performance (including cost of expedited orders) shall be added to the contract price. If Buyer does not, after notice, immediately consent to the increased price, then Seller has the right to cancel the unshipped portion of the order.
5. Cancellation. An order shall not be cancelled except by mutual consent. Seller is not required to consent to cancellation if Seller agreed to purchase the goods from a supplier who fails or refuses to cancel the order.
6. Quantity. Unless otherwise speciﬁcally agreed in writing, Seller can increase or decrease the quantity by not more than10% when necessary to(a) avoid waste, (b) avoid breaking customary shipping units, (c) allow for breakage, or (d) allow for size of equipment.
7. Returns. Only normal inventory goods can be returned for credit. Credit is issued to purchaser only in the amount of the invoice price of the goods less a minimum 20% return charge as determined by Seller. No credit is allowed for damaged merchandise, and a credit request must be accompanied by invoice number. Special order goods cannot be returned unless prior arrangements are made with the manufacturer and pursuant to the manufacturer’s return charge policy.
8. Shipment. Unless otherwise stated on face of invoice, Seller is only required to deliver goods to carrier at place of shipment and is not required to deliver goods to destination. After delivery, costs incurred, and risk of loss are for Buyer’s account. An authorized agent for the Buyer will check in, verify, and sign for all goods shipped to the Buyer or the Buyer’s jobsite.
9. Claims. Claims for shortage or damage are not allowed unless made at time of delivery. If shipment is F.O.B. Buyer, then Buyer shall resolve all claims for shortage or damage directly with
carrier unless Buyer in writing requests Seller to assist in claim resolution. All other claims are waived by Buyer unless Buyer notiﬁes Seller in writing within ten days after delivery of goods. Shortage claims must be accompanied by afﬁdavit. Damage claims must be accompanied by written statement of transportation agents. Goods must be held intact at destination until inspection and settlement.
10. Back Charges. Back charges resulting from problems caused by the Seller shall not be allowed unless the Seller has had 72 hours from the receipt of written notice to begin correcting the problem (Saturdays, Sundays, and Holidays excluded).
11. Security Interest. Buyer agrees that Seller retains a security interest in the goods until Seller is paid in full. The goods are described on the face of the invoice. Buyer will sign any documents and pay all fees necessary to perfect Seller’s security interest.
12. Errors. Seller may correct at any time all extension and price errors on an order, acknowledgement or invoice.
13. Retainage. Seller is not liable for retainage unless the goods are being installed by the Seller.
14. Acceptance. This document modiﬁes all prior terms of sale unless timely objection to modiﬁcation is made in writing to Seller. Acceptance is limited to the terms of sale set forth in this document. Seller objects to any additional terms of the Buyer.
15. Authority of Sales Personnel. No sales person or agent of the Seller, other than the Seller’s credit manager, has any authority to change the terms of sale set forth in this document.
16. Law. The terms of sale shall be construed according to Idaho law. The Buyer and Seller agree that the jurisdiction and forum shall be the courts of Idaho, and venue shall be in Boise, Idaho.
DISCLAIMER AND LIMITATION OF WARRANTIES AND REMEDIES
1. Manufacturer Warranty. If goods supplied by seller are covered by an assignable warranty of a manufacturer, then seller assigns to the buyer all such assignable warranties. Buyer is solely responsible to determine the nature and scope of the manufacturer’s warranty.
2. Seller Warranty:
A. Limited Warranty. In addition to any manufacturer warranty, seller (i) supplies the goods “as is and with all defects,” and (ii) makes no warranties either express or implied regarding title, quality or conformity of the goods, including the warranty of merchantability or ﬁtness for a particular purpose, except the following express warranties: (a) the title conveyed is good, and its transfer rightful; (b) the goods shall be delivered free of any security interest, lien or encumbrance, except for seller’s lien rights and security interest, and (c) the goods to be shipped will conform to the description, grade, and condition of the goods invoiced according to applicable grading rules.
B. Remedies. The buyer’s exclusive remedies for a breach of any warranty by seller is to return the goods to seller for a refund of the purchase price, or repair, or replacement. All goods returned to seller shall be shipped to “fob seller”, and seller shall return ship the goods “fob seller”. Seller has the exclusive right to select the remedy. Seller may select any one of the remedies irrespective of whether the nonconforming goods have been incorporated into or installed upon a project or job.
C. Limitation of Liability. Seller expressly excludes liability for (i) consequential damages, tort damages, strict liability damages, and liquidated damages, (ii) any costs related to the removal of any goods, and (iii) any costs related to the installation of repaired or replacement goods.
3. Use or Installation of Goods. Unless seller actually uses or installs the goods, seller is not responsible for, and makes no representations regarding, the use or method of installation of the goods. If seller does use or install the goods, then seller is liable only for seller’s breach of contract or negligence and is not under any circumstances liable for acts or omissions of any other party (including owner, contractor, sub-contractor, design professional, or agent).