Terms and Conditions of Sale
NORTHERN CONSTRUCTION SUPPLIES, LLC
TERMS AND CONDITIONS OF SALE
All transactions are governed by Seller’s Terms and Conditions of Sale. Any proposal that includes different or additional terms that vary from NORTHERN CONSTRUCTION SUPPLIES, LLC (“Seller”) Terms and Conditions of Sale are objected to and disallowed. Notwithstanding the foregoing, any such counterproposals by Buyer shall not operate as a rejection of the contract of sale, but as a rejection of the additional or different term(s).
1. Formation of Contract
An order is deemed by Seller to be an offer to purchase, which Seller may accept or reject in its sole discretion. Seller’s acceptance of an offer to purchase is binding on Seller only if made by written instrument or, if not by written instrument, by shipment of the products ordered (and acceptance by shipment shall only be binding as to the portion of the order actually shipped by Seller). Any automatic or computer generated response to an order by Seller’s electronic mail system or otherwise shall not be deemed acceptance of an order. Seller’s acceptance is subject to Seller’s Terms and Conditions of Sale stated herein.
2. Price
All prices noted in Seller’s quote are firm for thirty (30) calendar days from the date of the quotation, unless otherwise stated on the quotation. If Buyer signed this quotation within the time period specified in the quotation, then those prices are firm for shipments delivered within thirty (30) days from the date of this quotation, subject to the other paragraphs of these Terms and Conditions of Sale. All shipments not shipped after the thirty (30) day period are subject to increases in price, shipping costs, and other applicable costs. The products on this quote shall be subject to Seller’s standard manufacturing variations, tolerances, and classifications. This quotation is based on quantities requested by Buyer and are not guaranteed to be sufficient for Buyer’s purposes. If the quotation includes delivery by Seller, Seller shall deliver to the location specified by Buyer in the quotation and the delivery may be subject to the Seller’s Delivery terms below.
3. Payment
Buyer shall pay for the goods within thirty (30) calendar days from the date of Seller’s invoice. In the event of a late payment, Seller is entitled to treat Buyer’s entire account(s) as immediately due and payable without notice or demand. All past due amounts will be subject to a service charge accruing at a rate of up to 1.5% per month. Buyer is not entitled to set-off any amounts due to Seller by Buyer in connection with any transaction governed by these terms
4. Cost of Delivery, Taxes and Other Charges
Buyer shall pay the costs of delivery of the products. Buyer shall pay all sales, use, excise or similar taxes, or other charges, which Seller is required to pay, or to collect and remit, to any Government (national, state or local) and which are imposed on or measured by the sale.
Seller will make a good faith effort to deliver goods in accordance with Buyer’s schedule. Seller assumes no responsibility or liability for Seller’s non-performance caused by a force majeure event including, but not limited to an act of God, war, labor disputes, civil unrest, accidents, pandemics, the inability to obtain materials or goods, delays of carriers, contractors or suppliers, or any other causes beyond Seller’s control.
5. Delivery, Transfer of Property and Risk of Loss
Deliveries of products hereunder shall be (a) F.O.B. Seller’s warehouse or other facility if the Buyer chooses to pick up the products or the Buyer designates a common carrier or Buyer authorizes the Seller to select a common carrier to pick up products at the Seller’s warehouse or other facility or (b) F.O.B. Jobsite in the event that Seller provides delivery services as requested by the Buyer. Seller shall have no further responsibility for the products, and title and all risk of damage to or loss or delay of the products shall pass to Buyer upon acceptance by a common carrier at Seller’s warehouse or other facility or the Seller’s delivery F.O.B. to the Buyer’s jobsite. In each case Buyer shall bear all costs of shipping the products ordered unless otherwise specified. Seller reserves all rights permitted by law with respect to delivered products including, without limitations, the rights of recession, reclamation, repossession, resale, replevin and stoppage in transit until the full amount due from Buyer in respect of all delivered products has been paid. Seller may initiate delivery of products hereunder in installments. Buyer shall be invoiced separately for each such installment.
6. Delay
Seller shall not be liable for any loss or damage caused by delay in furnishing any products or services hereunder, or delay in any other performance provided for under these Terms and Conditions of Sale. Delay in the delivery of any products or the furnishing of any services hereunder shall not relieve Buyer from the obligation to accept and pay for the balance of any such products or services ordered hereunder. Seller is not liable for any loss or damage caused by delay due to COVID-19 or similar virus.
7. Returns
Returns will not be accepted after thirty (30) calendar days from the date of purchase. Material subject to damage of any kind may not be returned. All returns must be approved prior to attempting to return materials to Seller. Buyer bears the full cost of handling and returning items. Seller will charge Buyer a 25% restocking fee or $100, whichever is greater, for all standard and commonly stocked materials. All special materials may only be returned at the sole discretion of the Seller and a minimum of 50% restock fee will be applied.
8. Cancellation
If Buyer makes a written request to Seller to cancel this order, Seller in its sole discretion, and only by written notice to Buyer, may authorize Buyer to cancel this order provided Seller has not purchased special materials for the order or started fabrication on any materials. In that event, Seller shall charge Buyer a CANCELLATION CHARGE of (a) up to 25% of the order price on standard stocked materials, and (b) 100% of the order price for custom or non-standard items, plus any applicable restocking fees.
9. Inspection
Buyer shall inspect the products promptly upon receipt for non-conformity (including but not limited to non-conformity for quantity, quality, and/or defects). All claims for damage, shortage, and errors in shipment or improper delivery must be made to Seller on day of delivery. Buyer is responsible for any damage to the material during unloading.
10. Seller’s Rights
If Buyer should fail in any manner to fulfill the terms and conditions hereof, Seller may defer further shipments until such default is cured. Remedies provided herein shall be in addition to, and not in lieu of, other remedies that may be available to Seller. If for any reason, the quantities of the products covered hereby or of any materials used in the production of the products reasonably available to Seller shall be less than Seller’s total needs for its own use and for sale, Seller may allocate its available supply of products among its existing or prospective purchasers and/or its own departments, divisions and affiliates in such manner Seller deems proper in Seller’s sole discretion, without thereby incurring liability on account of the method of allocation determined or its implementation or for failure to perform this Agreement.
11. Excuses for Non-performance
If the manufacture, transfer or receipt by either party of any products covered hereby is prevented, restricted or interfered with by reason of any event beyond the reasonable control of the party so affected, such party shall be excused from making or taking deliveries hereunder to the extent of such prevention, restriction or interference, and neither party shall be liable to the other for default or delay in performing, except with respect to Buyer’s payment obligations.
12. Limitation of Liability
No claim by Buyer of any kind including, but not limited to, claims for indemnification, whether as to quality or amount of product delivered or non-delivery, shall be greater in amount then the purchase price for the products in respect of which damages are claimed. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, OR LOSS OF DATA, ARISING OUT OF, OR AS A RESULT OF, THE SALE, DELIVERY, SERVICING, USE OR LOSS OF THE PRODUCTS SOLD HEREUNDER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.
13. Disclaimer of Warranties
THE WARRANTIES SET FORTH HEREIN OR IN SELLER’S WARRANTY DOCUMENTS WITH RESPECT TO A PRODUCT ARE THE ONLY WARRANTIES MADE BY SELLER IN CONNECTION WITH THE PRODUCTS AND THE TRANSACTIONS CONTEMPLATED AS A RESULT OF THIS SALE. SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS TO BUYER OR ANY OTHER PERSON OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, AND SELLER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PRODUCTS SOLD HEREUNDER ARE SOLD ONLY TO THE SPECIFICATIONS SPECIFICALLY SET FORTH BY THE SELLER IN WRITING. SELLER’S SOLE OBLIGATION FOR A REMEDY TO BUYER SHALL BE REPAIR OR REPLACEMENT OF NON-CONFORMING PRODUCTS. BUYER ASSUMES ALL RISK WHATSOEVER AS TO THE RESULT OF THE USE OF PRODUCTS PURCHASED, WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS OR SUBSTANCES.
14. Disputes and Governing Law
These Terms and Conditions of Sale shall be governed by, and interpreted and construed in accordance with, the laws of the State of North Dakota, U.S.A., excluding the United Nations Convention of the International Sale of Goods. Any dispute, claim or controversy arising out of or relating to these Terms and Conditions of Sale shall be resolved in the competent court of the State of North Dakota, to which exclusive jurisdiction the parties hereby submit themselves.
15. Relationship
Performance under these Terms and Conditions of Sale does not make either party the employer, agent, or legal representative of the other for any purpose whatsoever, each party shall be acting as an independent contractor. Neither party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of or in the name of the other party.
16. Mechanical Lien and Bond Claims
Upon Seller’s request, at any time, Buyer will provide Seller with any documents necessary for Seller to maintain full mechanics lien rights and/or full bond claim rights under applicable state law or contract or bond provision.
17. Notices
Notices permitted or required to be given hereunder shall be deemed sufficient if given by registered or certified mail postage prepaid, return receipt requested, addressed to the respective addresses of the parties as set forth herein. Notice shall be effective upon the earlier of (a) receipt by the party to which notice given, or (b) on the seventh (7th) business day following the date such notice was posted.
18. Modification
These Terms and Conditions of Sale shall not be deemed or construed to be modified, amended, rescinded, canceled or waived, in whole or in part, except by written amendment signed by the parties hereto.
19. Misprints
In the event that an item is listed on Seller’s website at an incorrect price or with incorrect information due to an error in pricing or product information, Seller reserves the right to correct or cancel an order at any time, and/or edit an order to reflect the correction, and/or correct the error on the website.
20. Documentation
All documentation supplied by Seller to Buyer pursuant to this Agreement shall be in the English language and in the standards and measurement then being used by Seller.
21. Waiver
No failure by either the party to take action or assert any right hereunder shall be deemed to be a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right.
22. Severability
If any provision of this contract shall be declared unenforceable, only that portion necessary shall be modified or stricken and all other provisions shall remain in full force and effect.
23. No Assignment
This contract between Buyer and Seller is not transferable by either party without the prior written consent of the other party, except that Seller may assign this Agreement without Buyer’s consent if the assignment is to a to an affiliate or if the assignment is carried out as part of a merger, restructuring, or reorganization, or sale or transfer of all or substantially all of Seller’s assets.
24. Force Majeure
Seller does not assume the risk of and shall not be liable for failure to perform an obligation caused by fire, strike, labor stoppages or other disturbances, acts of God, war, riot, quarantine, civil unrest, accidents, pandemics, the inability to obtain materials or goods, delays of carriers, contractors or suppliers, or any other causes beyond Seller’s control. Upon occurrence of any such event, the time for Seller’s performance shall be extended reasonably, the purchase price shall be adjusted for any increased costs to Seller resulting therefrom, and Buyer shall not be entitled to another remedy.
25. Compliance with Laws; Export Laws
Buyer shall be responsible for obtaining all licenses and permits and for satisfying all formalities as may be required to import and deliver the products ordered hereunder to the shipping address requested by Buyer. Buyer shall supply Seller on a timely basis with information and documentation requested by Seller in order to permit Seller to export the products for use by Buyer hereunder. Buyer shall not dispose of any U.S. origin products, know-how, technical data, documentation or other products or materials furnished to it pursuant to this Terms and Conditions of Sale, to any party or in any manner which would constitute a violation of the export control regulations of the United States now or hereafter in effect if that disposition was made by a U.S. corporation, or a non-U.S. corporation subject to those regulations. Seller will use its best efforts to assist Buyer in obtaining such approvals.
26. Read and Understood
BUYER AGREES THAT IT: (A) HAS READ THESE TERMS AND CONDITIONS OF SALE; (B) UNDERSTANDS ITS OBLIGATIONS HEREIN; AND (C) HAS BEEN PROVIDED WITH A REASONABLE CHANCE TO SEEK INDEPENDAENT LEGAL ADVICE WITH RESPECT TO SAME.
27. Entire Agreement and Miscellaneous
These Seller’s Terms and Conditions of Sale are the sole and exclusive statement of the parties’ understanding and agreement with respect to the transactions contemplated by this sale, notwithstanding any other terms that might be contained in any purchase order or other document received from Buyer or submitted to Seller. These Terms and Conditions of Sale constitute the entire agreement between the parties regarding the subject matter hereof and can only be modified or changed in writing and signed by authorized representatives of both parties. No waiver by Seller of any of Seller’s Terms and Conditions of Sale or any breach hereof shall constitute or be deemed to be a waiver of any such term or any such breach in any other case. No waiver shall be deemed to occur as a result of the failure to enforce any term or condition of these Seller’s Terms and Conditions of Sale. The paragraph headings are for convenience only and shall not be used in interpreting or construing these Seller’s Terms and Conditions of Sale.
Northern Construction Supplies, LLC
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Lance Allard, President