Terms and Conditions
- AGREEMENT. Purchaser and The Quikrete Companies, LLC for itself and/or on
behalf of one or
more of its subsidiaries (“Seller”) acknowledge, understand and agree that the
Purchaser's Credit
Application, if any, the Quotation, if any, the specifications stated in the Quotation and these
Standard Terms
and Conditions (collectively, the “Agreement”) shall collectively form the sole and
entire agreement
by, under and pursuant to which Purchaser shall purchase from Seller, and Seller shall
manufacture and sell to
Purchaser, the materials described in the Quotation (the "Materials”). This Agreement
supersedes any
and all prior or contemporaneous oral or written agreements between the parties regarding the
same.
Any different or additional terms or conditions contained in Purchaser's acceptance of the
Quotation, or any
document or instrument constituting this Agreement, whether by purchase order or otherwise, are
hereby objected
to by Seller and shall have no effect on, and not become part of, the terms and conditions of
this Agreement.
Additional terms, changes, and alleged subsequent agreements shall not be effective unless and
until any of the
same are in writing and signed by Seller’s and Purchaser’s authorized
representatives.
Notwithstanding any subsequent changes made to the Quotation, these Standard Terms and
Conditions (in the form
originally referred or attached to the Quotation) shall continue in full and unvaried force and
effect except to
the extent modified by written agreement signed by Seller’s and Purchaser’s
authorized
representatives.
Purchaser's signature to the Quotation, direction to manufacture of the Materials, acceptance of
delivery of the
Materials or the payment for the Materials, shall be deemed an acceptance of these Standard
Terms and
Conditions. Seller may elect not to manufacture or deliver any Materials until Purchaser returns
a signed copy
of the Quotation.
- DELIVERY AND ACCEPTANCE. Delivery of the Materials shall be made pursuant to a
delivery
schedule agreed to by Purchaser and Seller. Purchaser agrees to give the Seller reasonable
notice of the time
and rate of deliveries. Seller shall not be deemed to have failed to comply with such schedule
for any delay
where such delay is caused by acts of God, acts of civil or military authority, epidemics, war,
riot or any
other reason or cause beyond Seller’s control. In connection with any such delay, the
agreed delivery
date(s) shall be extended for a period equal to the duration of the delay.Â
Seller's responsibility for delivery shall cease FOB shipping point or, if Seller agrees to
deliver, FOB
jobsite, at the curbside or street or frontage of the address of delivery. Seller reserves the
right to charge
Purchaser at the applicable rate for any waiting time at the jobsite in excess of one (1)
hour.
The type and quantity of Materials delivered and detailed on the delivery ticket must be
inspected by Purchaser
at the time of delivery for compliance with the Agreement. Variations between actual quantities
of Materials
delivered and those shown on the delivery ticket must be noted on all copies of the delivery
ticket signed by
Purchaser. Invoice charges will be based on the quantities shown on the delivery ticket.
Title and risk of loss of each of the Materials shall remain with Seller until delivery of such
Materials to the
delivery location specified in this Agreement. Purchaser hereby grants Seller a first priority
security interest
in all such Materials until such time as Seller is paid in full all amounts due under this
Agreement. Purchaser
further agrees to execute any and all documents that may be required for Seller to perfect such
security
interest.
Standard Materials sold under this Agreement may be returned by Purchaser for credit only with
Seller's prior
written consent and only if, in Seller's sole opinion, the Materials to be returned are in
re-saleable
condition. Seller will deduct from any such credit any and all restocking fees, loading and
unloading costs,
disposal fees, and any costs of repair and delivery costs to and from Purchaser's jobsite.
Custom-designed and
special Materials of other than normal and standard design regularly sold by Seller may not be
returned. The
Purchaser will be liable to pay for any custom-designed or special Materials not taken by the
Purchaser.
- PRICING AND PAYMENT. Unless stated otherwise herein, prices for the Materials
quoted are
subject to material availability and shall remain firm for a period of thirty (30) days after
the date of the
Quotation; thereafter, prices for the Materials are subject to change by Seller. Pricing for
ordered, but
undelivered, Materials are subject to change at any time to account for cost increases and
volatility in respect
of materials, fuel, energy, and transportation. Prices quoted are based on minimum truckload
lots and are
subject to increase should Purchaser request delivery in lots smaller than truckload. Prices
are applicable
only to the project specified in the Quotation, are available only to the Purchaser, and are
only for the
quantities stated in the Quotation.
Payment terms are net 30 days, without retention or set-off. Seller will submit invoices to
Purchaser upon each
delivery of Materials pursuant to the Agreement. Purchaser’s obligation to pay Seller will
not be delayed
or conditioned upon installation of the Materials furnished pursuant to the Agreement,
Purchaser’s receipt
of payment from any third-party, or any disputes between Purchaser and the Owner.
Past due amounts will accrue interest at the rate of eighteen percent (18%) per annum or the
maximum rate
allowed by law, whichever is less. Should Purchaser fail to pay when due any amount payable to
Seller under the
terms of this Agreement, after ten (10) days written notice without cure, Seller may: (a) make
demand upon
Purchaser for assurances of payment, including but not limited to, requesting immediate payments
of all amounts
then due and owing to Seller under this Agreement; and/or requesting payment in advance of
delivery of all
future amounts to become due under this Agreement; (b) suspend future deliveries; (c) file a
claim of lien and,
if applicable, a claim on bond; (d) terminate this Agreement; or (e) take such other actions as
Seller
determines are necessary to secure its right to payment.
Seller may exercise the right of set-off under this Agreement as to any sums owed by Seller
and/or its
affiliates under any other contract or agreement with Purchaser and/or its affiliates.Â
Purchaser agrees to pay
Seller any and all collection fees, attorneys’ fees, and court costs incurred by Seller in
collecting any
amounts due under this Agreement.
If during the life of this Agreement, Purchaser's financial responsibility or credit standing
becomes impaired
or his method of paying accounts become unsatisfactory to Seller, Seller reserves the right to
require Purchaser
to make payment in advance or give satisfactory security or guarantee that the invoices will be
promptly paid
when due and if Purchaser fails to do so, Seller reserves the right to cancel this
Agreement.
- TAXES. In the absence of an exemption or resale certificate reasonably
acceptable to Seller
and to the respective taxing authority, all federal, state, and local taxes, assessments, fees,
duties and
charges levied by reason of this Agreement are in addition to the prices set forth in the
Quotation and shall be
the sole responsibility of, and paid by, Purchaser.
- LIMITED WARRANTY AND LIABILITY DISCLAIMER. Seller warrants its Materials to be
free of
manufacturing defects and meet technical properties set forth in the technical data sheet. This
warranty does
not cover standard manufacturing variations, color variations/matching or efflorescence. Seller
is not
responsible for installation of the Materials or defective conditions caused by installation,
structural
movement, substrate failure, abuse, impact, abrasion or alteration of the Materials,
earth-shifts, excessive or
unforeseen site conditions, acts of God, application of chemicals to the Materials or
determining suitability of
the Materials for intended uses and applications. Purchaser is responsible for determining
suitability of the
Materials for the intended uses and applications and assumes all risks thereof. Liability under
this warranty,
if found to be defective, is LIMITED to the replacement of the defective item of Materials (as
purchased), or at
Seller’s option, the refund of the purchase price of the defective item of Materials.Â
This warranty is
valid for a period of one (1) year from the purchase of the Materials and is non-transferable.Â
In the event of
a claim under this warranty, notice must be given to Seller, together with original proof of
purchase, at its
headquarters by sending a letter to: The Quikrete Companies, LLC a/s Warranties, 5 Concourse
Parkway, Atlanta,
GA 30328. THIS WARRANTY IS ISSUED AND ACCEPTED IN LIEU OF ANY AND ALL OTHER EXPRESS OR IMPLIED
WARRANTIES OF
ANY KIND OR NATURE AND EXPRESSLY EXCLUDES LIABILITY FOR LABOR, FREIGHT AND OTHER COSTS
ASSOCIATED WITH REMOVAL
AND REPLACEMENT OF THE DEFECTIVE PRODUCT AND FOR INDIRECT, SPECIAL, INCIDENTAL AND CONSEQUENTIAL
DAMAGES,
INCLUDING, WITHOUT LIMITATION, ANY LOSSES DUE TO DELAYS INCURRED BY THE PURCHASER OR ANY OTHER
PARTY.
Seller makes no warranty whatsoever with respect to goods, products, accessories or parts
furnished by Seller
but not manufactured by Seller, which carry only the warranty, if any, in the applicable
manufacturer’s
warranties (if any) to the extent permitted by the terms of such warranty between Seller and
such
manufacturer.
This warranty supersedes the warranty found at /product-warranty/.
- LIMITATION OF LIABILITY. Seller's liability on any claim for loss or damage
arising from this
Agreement, or the fabrication or sale of any of the Materials pursuant to this Agreement,
whether based on
contract, warranty, tort (including negligence) or other grounds, shall not exceed the price of
the Materials
actually received from Purchaser by Seller under this Agreement with regard to which such claim
for loss or
damage is made. Neither Seller nor Purchaser will be liable to the other party, or any third
party beneficiary,
whether as a result of breach of contract, warranty, tort (including negligence and strict
liability) or other
grounds, for special, consequential, incidental, punitive (if allowed by law) or other indirect
damages of any
kind, including, but not limited to loss of data, loss of profits or revenue, loss of use of the
Materials
furnished by Seller pursuant to this Agreement or any associated product, cost of capital, cost
of substitute
products, facilities, services, downtime costs, or claims, or for liquidated damages (delay or
otherwise)
incurred by such party from any third party.
- INDEMNIFICATION. To the fullest extent permitted by applicable law, each party
(the
“Indemnifying Party”) agrees to indemnify, defend and hold harmless the other party
and its
affiliated companies along with its respective officers, directors, owners, employees and agents
(collectively
the "Indemnitees") from and against all claims, damages, losses, liens, causes of
action, suits,
judgments and expenses (including but not limited to reasonable attorneys’ fees) of any
person or entity,
to the extent arising out of, any injury, death or destruction of property, but only to the
extent caused by or
arising from the negligent acts or omission of the Indemnifying Party, it’s employees, any
subcontractor,
supplier or person or entity over which it controls or exercises control over (collectively,
“Claims”); provided, that the Indemnifying Party shall have no obligation to
indemnify for any
Claims to the extent caused by or arising from the negligence or willful misconduct of any
Indemnitee and
provided further that “Claims”, for purposes hereof, shall not include damages,
compensation or
benefits payable under any insurance policies, workers' compensation acts, disability benefit
acts, or other
employees' benefit acts.
Seller shall indemnify, defend and hold harmless the Indemnitees from and against all claims,
damages, losses,
liens, causes of action, suits, judgments and expenses (including but not limited to reasonable
attorneys’
fees) to the extent arising from any claims made by third parties that the use or sale of the
Materials
infringes any United States patent covering the Materials. Provided, however, this paragraph
will not apply in
the event that the infringement results from use of the Materials in combination with other
materials, goods, or
manufacturing processes.
- ASSIGNMENT. Neither party shall assign this Agreement or any interest herein
without the prior
written consent of the other party, and any attempted assignment, whether by operation of law or
otherwise,
shall be void without such prior written consent.
- ±·°¿°Õ±õ°ä·¡.Ìý Any notice required to be sent to Seller shall be in writing and sent
by Certified
Mail, postage prepaid, to the Seller’s office set forth on the Quotation, or as specified
in the
applicable paragraph in this Agreement, with a copy to Seller, 5 Concourse Parkway, Suite 1900,
Atlanta, Georgia
30305, Attention: Legal Department. Any notice required to be sent to Purchaser shall be in
writing and sent by
Certified Mail, postage prepaid, to the Purchaser’s office set forth on the Quotation.
- SEVERABILITY. If any term, provision, covenant, or condition of this Agreement
is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the
provisions shall
remain in full force and effect and shall in no way be affected, impaired, or invalidated. The
parties agree
that each term and provision of this Agreement shall be construed according to its fair meaning
and not strictly
for or against any party.
- VENUE AND CHOICE OF LAW. The parties hereto agree that venue for any action
brought for the
breach of or the enforcement of this Agreement will lie in the county of the Project site
described in the
Quotation. This Agreement shall be governed by and shall be construed in accordance with the
laws of the state
of the Project site described in the Quotation, without regard to its conflicts of law
provisions. AS A MATERIAL
INDUCEMENT TO ENTER INTO THIS AGREEMENT, BOTH PARTIES WAIVE THE RIGHT TO TRIAL BY JURY IN ANY
PROCEEDING ARISING
OUT OF OR RELATED TO THIS AGREEMENT.
- °Â´¡±õ³Õ·¡¸é.ÌýÌý Failure or inability of either party to enforce any right hereunder
shall not waive
any right in respect to any other or future rights or occurrences.
- CORRECTIONS. Seller reserves the right to correct typographical or clerical
errors appearing
in the Quotation or other documents constituting the Agreement.
Effective July 2024
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