Terms and Conditions

 

1. Terms

Customer may submit orders to Cameron Ashley Building Products, Inc. (“CABP”) electronically (including via EDI) or in writing at prices quoted by CABP for the purchase of goods (“Goods”), the type and quantity of which will be established in separate Contracts (as defined below) between CABP and Customer. CABP may accept or reject any order from Customer. All sales by CABP to Customer are subject to these Terms and Conditions of Sale (the “Terms”). A binding sale contract (“Contract”) will arise only when CABP confirms the customer’s order in writing or begins execution of the customer’s order.  Each order shall specify (i) the quantity of Goods being ordered, (ii) prices for the Goods, and (iii) payment terms granted by CABP.  CABP reserves the right to refuse, cancel or delay any order placed by Customer and accepted by CABP when Customer is delinquent in payments or when Customer has failed to perform any of its material obligations under these Terms.  Such refusal, cancellation or delay of any shipment shall not be deemed a breach or default of these Terms by CABP.  CABP reserves the right to discontinue the sale of any product at any time.  These Terms may only be altered with specific written consent from a corporate officer of CABP and addressed to Customer.  The parties agree that these Terms shall prevail over any conflicting terms and conditions in any purchase order or any other instrument or document provided by Customer. Any additional or different terms or conditions in any purchase order or other instrument or submission from Customer shall be deemed objected to by CABP without the need of any further or additional notice of objection, and such additional or different term shall be of no effect or in any way binding upon CABP.

2. Delivery and Quantity

Information about delivery periods is indicative and non-binding unless a written confirmation from CABP expressly states the contrary.  CABP shall use commercially reasonable efforts to meet such shipping dates, but CABP will not be liable for any direct or indirect costs, damages, or penalties, including, without limitation, incidental, special or consequential damages, including the loss of business or loss of profits resulting from any delay in the delivery of Goods.  For deliveries made by CABP’s trucks, Customer shall provide suitable roadways or approaches to points of delivery to the extent controlled by Customer. Partial deliveries are permitted.

3. Payment and Credit; Expenses; Rebates

The prices for the Goods covered by a Contract exclude all transportation costs, freight, insurance and special handling and packaging, or any required federal, state or local sales or other taxes, duties, export or custom charges, brokerage or other fees, for which costs Customer shall be fully responsible. Customer shall pay for all Goods ordered on its behalf and received by Customer or their designee per the payment terms printed on the invoice or confirmation submitted by CABP. CABP may establish credit terms for Customer, and may change those credit terms, create or change credit limits, or cease extending credit from time to time in its sole and absolute discretion, without notice to Customer.  For the avoidance of doubt, Customer is liable for the cost of all Goods ordered, even if such orders exceed Customer’s credit limit, either at the time of order or any time in the future.  Customer shall pay all costs for: special packing, shipping or other handling requested by Customer and agreed to by CABP, extra charges of carriers for Customer delays in unloading trucks or containers and other costs incurred by CABP as a result of actions by or requests from Customer.  CABP’s standard service charge in effect at the time will be applied to each returned or rejected payment from Customer. Customer shall pay all invoices regardless of any dispute that may exist as to delivered or undelivered Goods, subject to a credit to Customer’s account in the event CABP, in its reasonable discretion, determines that Customer’s dispute is valid. Customer shall not withhold, offset, or debit any amounts owed to Customer by CABP.  At CABP’s sole and absolute discretion, failure to pay an invoice by the due date may result in forfeiture of any rebate or discount extended to Customer by CABP.

4. Late Payments: Consequences and Cost of Enforcement

If the Customer (i) fails to make a payment when due, (ii) becomes insolvent, (iii) undergoes a change in ownership, (iv) files a voluntary bankruptcy proceeding, or has an involuntary bankruptcy petition filed against it without obtaining a discharge of that petition within 75 days, (v) has a receiver appointed over all or any of its assets, or (vi) any other action or event occurs that CABP determines in its sole and absolute discretion adversely impacts the conditions under which credit was extended to Customer, then Customer is in material breach of these Terms, and Contracts relating to these Terms, and: (a) all amounts outstanding to all CABP companies will become due immediately; (b) CABP will have the right to cancel any pending orders; and (c) Customer shall pay a finance charge on all amounts outstanding at a rate equal to amount currently charged by the applicable CABP company, not to exceed the lesser of 2% per month or the highest rate permitted by applicable law, all without prejudice to any other rights CABP may have, including any right to claim actual damages. Customer will pay all costs of collection of any amounts due to CABP, including court costs, reasonable fees and charges of attorneys and their firms (or in-house counsel) and other expenses. In the event of a default CABP may, in its sole and absolute discretion, apply any payments first to attorney’s fees and any costs/expenses, then to any accrued and unpaid interest, and then to any remaining balance due and owing under the outstanding invoices.

5. Risk of Loss

The rights and obligations of CABP and Customer respectively with respect to shipment and delivery, risk of loss or damage and insurance (collectively, “Delivery Terms”) shall be determined by reference to Incoterms 2022. In the event that: (a) Goods are picked up by Customer at CABP’s warehouse, Delivery Terms shall be Ex Works CABP’s Warehouse; (b) Goods are shipped by CABP to Customer by CABP’s own trucks, Delivery Terms shall be Delivered Duty Paid Customer’s Address or Delivery Duty Paid Address Directed by Customer, as applicable; (c) Goods are shipped by CABP to Customer by commercial carrier, whether selected by CABP or Customer, Delivery Terms shall be Free Carrier CABP’s Warehouse; and (d) Good are drop shipped by CABP’s supplier to Customer, Delivery Terms shall be Free Carrier Supplier’s Address.

6. Limits on Warranties, Damages and Actions

CABP warrants that the Goods will be as described on the written order confirmation (or, if there is no written order confirmation, on the invoice). CABP hereby assigns to Customer any assignable or transferable manufacturers’ warranties provided by the manufacturer of the Goods sold. CABP does not give any warranty with respect to Goods manufactured by others. THE GOODS SOLD UNDER THIS AGREEMENT ARE PURCHASED BY THE CUSTOMER “AS IS” AND CABP DOES NOT PROVIDE ANY WARRANTY FOR THE GOODS, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES THAT THE GOODS ARE OF MERCHANTABLE QUALITY OR THAT THE GOODS CAN BE USED FOR ANY PARTICULAR PURPOSE.

Customer acknowledges that it has not been induced by any statements or representations of any person with respect to the quality or condition of the Goods and that no such statements or representations have been made. The Customer acknowledges that it has relied solely on the investigations, examinations, and inspections as the Customer has chosen to make and that CABP has afforded the Customer the opportunity for full and complete investigations, examinations, and inspections.

Customer will be liable for any loss resulting from any failure to apply all professional standards, customary instructions and written instructions from CABP or the manufacturer, if any, in relation to any Goods. CABP will not be liable for damage caused to third parties, or for consequential or indirect loss. CABP’s sole liability under these Terms, and warranty, or on any other basis, is limited to either replacement of the product or a refund of the purchase price at CABP’s sole option; CABP will not be liable for labor costs or for consequential damages under any circumstances, regardless of whether those damages were foreseeable. Nothing in this paragraph excludes or restricts liability for death or personal injury to the extent proximately caused by CABP’s gross negligence or intentional misconduct.

IN NO EVENT SHALL CABP BE LIABLE UNDER THIS AGREEMENT TO THE CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, SHUTDOWN OR SLOWDOWN COSTS, INCONVENIENCE, LOSS OF BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR OTHER ECONOMIC LOSS, 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. THE LIABILITY OF CABP, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER UNDER THIS AGREEMENT, REGARDLESS OF LEGAL THEORY, SHALL NOT BE GREATER THAN THE ACTUAL PURCHASE PRICE OF THOSE GOODS WITH RESPECT TO WHICH SUCH CLAIM IS MADE.

NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THESE TERMS MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT.

7. Deadlines for Inspection, Claims and Returns

Customer shall promptly check each delivery and shall note in writing on the bill of lading any discrepancies between the delivery and the bill of lading and shall sign the bill of lading, or other acknowledgment of receipt, and have the driver sign the bill of lading, or other confirmation, before the driver leaves Customer’s premises; otherwise CABP will not give credit for any discrepancies. Customer shall inspect all Goods purchased and notify CABP in writing of any claimed defect or nonconformity, other than latent or hidden defects, by the end of the fifth business day after the day of delivery. In the absence of such notice, Customer will be deemed to have accepted the Goods as delivered, and CABP shall have no liability whatsoever. Customer shall retain Goods damaged in transit and defective Goods for inspection by CABP for two weeks after notifying CABP of the damage or defect, or longer if so requested by CABP, and shall return such Goods to CABP at CABP’s request and expense. CABP will have no liability whatsoever for any defect or non-conformity for which it is not notified, or if the relevant Goods are not made available for inspection in the manner required by this paragraph.  Goods may only be returned with the prior written approval of an authorized CABP representative, and subject to CABP’s return policies, including handling or restocking charges.

Customer acknowledges that it has not been induced by any statements or representations of any person with respect to the quality or condition of the Goods and that no such statements or representations have been made. The Customer acknowledges that it has relied solely on the investigations, examinations, and inspections as the Customer has chosen to make and that CABP has afforded the Customer the opportunity for full and complete investigations, examinations, and inspections.

8. Waivers and Unforeseen Events (Force Majeure)

A waiver by either party of a default will not be considered a continuing waiver but applies only to the specific provision and specific occurrence identified in the waiver. CABP shall not be responsible for delays or other failures to perform caused by terrorism, riots, wars, strikes, lockouts or other labor trouble, fire, flood, pandemic, or other casualty, natural disasters or acts of God, shortage of materials, unavailability of transportation or other supply chain issues, failure of computer systems, destruction or loss of electronic records, plant shutdown or other causes or events beyond CABP’s control.  Such causes or events do not excuse Customer’s payment obligations.

9. Purchase Money Security Interest

As collateral security for the payment of the purchase price of the Goods, the Customer hereby grants to CABP, a lien on and security interest in and to all of the right, title, and interest of the Customer to the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds of the foregoing. The security interest granted is intended to constitute a purchase money security interest under the Uniform Commercial Code and analogous state law.

10. Governing Law and Litigation

The validity, construction and performance of each Contract to which these Terms apply, relating to a transaction between CABP and Customer for the purchase of Goods under these Terms, is governed by South Carolina law (applied without regard to South Carolina conflicts of law principles). The parties agree to the non-exclusive jurisdiction of the State and Federal courts for Greenville County, South Carolina to hear any disputes relating to transactions between the parties, without prejudice to CABP’s right to bring litigation in the courts of Customer’s location. CABP AND THE CUSTOMER VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER OF THEM MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS APPLICATION AND EACH CONTRACT TO WHICH THESE TERMS AND CONDITIONS APPLY.

11. Anticorruption

Customer shall comply with all applicable anti-bribery laws of the USA (including the Foreign Corrupt Practices Act) or other country, as applicable.  If CABP determines reasonably and in good faith that there may be a breach of any of these laws by Customer, CABP has the right to take any action necessary to avoid potential liability to CABP.

12. Export Control Regulations

All Goods of CABP are subject to the export control laws of the USA and Customer shall not divert or resell the Goods contrary to such laws.

13. Indemnification

Customer shall indemnify, defend and hold CABP harmless from all claims, damages and expenses (including attorneys’ fees) arising out of Customer’s (a) breach of these Terms, (b) possession, use, handling, storage, sale, processing or any disposition of the Goods, and (c) errors, omissions, negligence or other wrongful conduct of Customer and its customers, users, agents or subcontractors. In any matter to which this paragraph applies, CABP shall have the right to select and retain counsel of its own choosing, all at Customer’s expense, and to participate in the defense.

14. Miscellaneous

Customer will pay all sales, use, excise and other taxes due with respect to sales to Customer by CABP. Customer may not assign any order or Contract without CABP’s written consent. If any term or condition of this document is held by a court of competent jurisdiction to be unenforceable, the remaining terms and conditions shall remain in full force and effect. This document is binding upon and shall inure to the benefit of the respective successors and permitted assigns of the parties, but Customer shall not assign or otherwise transfer these Terms, any Contract, or any performance thereunder without the express written consent of CABP. Any attempted assignment or transfer without the required consent of CABP, including a change in control of Customer, will result in a material breach, subject to the terms of paragraph 4.  Nothing in these Terms requires Customer to purchase from CABP, nor CABP to sell to Customer. To the extent CABP and Customer currently have a separately executed written agreement as to the terms/conditions of sale, these Terms shall supersede and control to the extent the provisions of these Terms conflict with or were not included in any previous written agreement(s).