SALES TERMS AND CONDITIONS 

(effective 1 September 2021) 

OVERVIEW: 

These terms and conditions (“Terms and Conditions”) shall govern the sale by Allied Construction Technologies, Inc. (the “Company”) of its “Products” to buyer (the "Buyer”). These Terms and Conditions shall supersede all previous communications, agreements or contracts, and no term, condition, or trade custom in conflict or inconsistent herewith shall be binding upon Company unless agreed to in writing.

PURCHASE  DOCUMENTS:   The Terms and Conditions of this contract shall apply to all sales whether or not expressly referred to in each purchase order, invoice, or other document of purchase or delivery issued by Company or Buyer. Except as otherwise provided in this contract, no modification of these terms and conditions will be valid unless made in writing and signed by the party to be bound. No modification shall be affected by the acknowledgement or acceptance of purchase orders, invoices or shipping instructions or other forms containing terms or conditions at variance with or in addition to those set forth herein. Buyer’s acceptance of the Company’s Products shall be equivalent to Buyer’s assent to the Terms and Conditions hereof. In the event Buyer’s terms and conditions of purchase conflict with the Terms and Conditions herein the Parties hereby agree that all payment, warranty, liability and indemnity terms in these Terms and Conditions will supersede any related terms in Buyer’s terms and conditions of purchase.

PRICES:  Prices are subject to change without notice and the price for the product shall be the prices in effect at the time of shipment. Prices are exclusive of sales taxes unless sold by the Company in the Commonwealth of Virginia.

ORDER CHANGES: Any request to change any order with respect to quantity or packaging must be communicated in writing prior to shipment. If such changes result in increased cost or time to complete the manufacture of the product(s) or if there is a decrease in the quantity requested which invalidates any discounts offered by Company, then the price and timing of the original order shall be adjusted accordingly. Buyer agrees to pay any increased costs associated with the changes. Once Orders have been accepted by Company, no changes with respect to specifications will be made or allowed unless they are requested and accepted in writing and the resulting new price and delivery time are agreed upon by both Parties in writing. Additional costs for changes, including any costs for additional engineering, will be reflected in the new price. Cancellations are subject to cancellation charges which are determined in the sole discretion of the Company.

PAYMENT TERMS: Products may require full or partial payment in advance or upon delivery, may require other security for payment or performance, or may impose such other credit or payment terms as Company deems appropriate in its sole discretion. Sums not paid when due shall bear interest at a rate of 1.5% per month, or the maximum rate permitted by law, whichever is less. Buyer may not withhold or set-off payment for products delivered for any reason whatsoever. Company reserves the right, among other remedies, either to terminate the sale or to suspend future deliveries upon failure of Buyer to make any payment pursuant to these Terms and Conditions or any other contract between the parties hereto. Buyer shall reimburse Company in full for all damages, costs and expenses, including reasonable attorneys’ fees, which Company incurs with respect to Buyer’s breach of these Terms and Conditions or any collection efforts by Company to recover past due amounts from Buyer.

SECURITY INTEREST: If applicable, until all amounts due have been paid in full, Company hereby retains a security interest in the Product and has all rights of a secured party under the Uniform Commercial Code, including, without limitation, the right to take possession of the Product without legal process and the right to require Buyer to make the Product available to the Company at a place reasonably convenient to both parties. At Company’s request, Buyer shall execute any financing statement or statements submitted by Company in order that Company’s security interest in the Product may be perfected.

CREDIT TERMS: If applicable, credit terms are subject to Company’s continuing approval of Buyer’s credit, and if, in Company’s sole judgment Buyer’s credit or financial standing is impaired so as to cause Company to deem itself insecure, Company may withdraw the extension of credit and require other payment terms. Buyer agrees to submit such financial information, from time to time, as may be reasonably requested by Company for the establishment and/or continuation of credit terms.

SHIPMENTS AND FREIGHT COSTS: Buyer shall allow for adequate lead time and shall specify by purchase order or otherwise in writing to Company the quantity and delivery dates desired for deliveries of the product. Company will endeavor to comply with the Buyer’s wishes as so expressed. However, the Company shall not be liable for delay or short shipment caused by reasons beyond Company’s control.  Shipping and/or delivery dates are estimates only and Company shall not be liable for any delay or discrepancy in the shipping or delivery of products. Company reserves the right to make deliveries in installments. Delay in delivery of one installment shall not entitle Buyer to cancel other installments.

All shipments are FOB shipping point, unless specifically noted as freight allowed or FREE Shipping. A minimum charge may be applicable for orders. Any applicable freight costs will be added to the invoice unless Buyer specifies “Collect” on purchase order.

DELIVERY INSPECTIONS AND CLAIMS: Buyer shall inspect all purchases immediately upon their arrival and shall mark on Bill of Lading all noted defects of any kind prior to the carrier leaving. Do Not Accept Any Products That Are Leaking Due to Transport Damage, MORE ON DISPOSAL and INFOTRAC. Claims resulting from losses, shortages or damage in transit must be acknowledged on the delivery papers at receipt. Buyer shall further promptly notify Company of any delivery of any damaged product(s) purchased from Company, or of any complaint whatsoever Buyer may have concerning delivery. Buyer’s failure to give such notice and to note such damage constitutes a waiver of any claim against Company relating to the damaged product. Any claim for any other cause not specifically set forth in these Terms and Conditions shall be deemed waived and released by Buyer unless made in writing within five (5) business days after Buyer’s receipt of the Product(s).

CANCELLATIONS & RETURN OF PRODUCT(S):  Because of the nature of the Company’s Products, a Buyer’s order of Products is not subject to cancellation or return by Buyer after shipment by the Company. Under very limited/special circumstances, the Company may grant a written return authorization if requested by Buyer (and accepted by Company) within 15 days of order having been shipped. Authorized returns must be shipped using the carrier selected by Company and routed to the location of Company’s choice. Buyer is responsible for all freight charges (two-way) plus a 25% restocking fee. Returns must be shipped in their original unopened cartons and accepted by the Company as having been received in a condition suitable for resale.

LIMITED LIABILITY:  Upon the acceptance of the Company’s Product from the transport carrier, the Buyer assumes all responsibility and liability for loss and damage to the product or resulting from the handling, storage or use of the Product, whether used singly or in combination with other products. Company’s liability with respect to the Product and under this contract shall be limited to the purchase price of the product supplied hereunder in respect of which damages are claimed. Company shall in no event be liable for any direct or indirect, special, consequential, incidental, or other damages from any source whatsoever.

Company shall not be liable to Buyer, Buyer’s customers or any person or entity for  any incidental, consequential, special, or indirect damages (including, without, limitation lost profits or business interruption losses) as a result of supplying product to Buyers or others and whether arising in tort, contract or otherwise. In no event shall Company be liable for damages to property, or for death, disability, or other injuries to persons, arising out of the use of its products, including any product which was not kept out of the reach of children and animals. Company’s exclusive liability and Buyer's sole remedy in the event of a non-conforming product shall be replacement of the defective product with conforming product. In no event shall Company’s total liability exceed the purchase price of the product at issue.

WARRANTY: The Company’s Product(s) are sold on the condition that 1) the Buyer is a licensed Professional Contractor with documented experience in using products equivalent to those the Company sells, and 2) the Buyer is experienced in selecting appropriate products and determining their suitability for the Buyer’s own purpose before adoption.

Therefore, It is the Buyer’s obligation to test the suitability of any Company Product for a planned application prior to using it. The Company assumes no warranties written, expressed, or implied as to the workmanship of the installer, any specific methods of application, or the suitability of the product for a specific purpose under environmental conditions present at the time of installation.

Company warrants that the materials purchased by Buyer are free of manufacturer’s defects and further guarantees to replace any material which is determined by Company, in its sole discretion, to not be in conformity with Company’s Product Data Sheets and Safety Data Sheets accompanying the ordered Product(s). most current published specifications. Company further warrants that the product(s) delivered will be produced in an ISO 9001 manufacturing facility. Additional warranty terms are stated on the product label/product data sheet and supersede the terms herein. No claims will be considered until the product in question has been inspected by a Company representative.

COMPANY MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND DISCLAIMS EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS.

INDEMNITY: Buyer shall assume full responsibility for the use of the products and shall defend, Indemnify, and hold harmless Company and its respective affiliates, officers, directors, shareholders, employees, agents and representatives from and against any and all losses, liabilities, claims, damages, demands, costs and expenses (including without limitation attorneys' fees and court costs) arising out of or relating to same. Buyer acknowledges receipt of and familiarity with Company’s labeling and literature concerning the product(s) and will forward such information to its employees who Handle, process, or sell such product(s) and to customers of such product(s), where applicable.

FORCE MAJEURE: In the event of failure by the Company to manufacture, supply or ship any of the Products herein by reason of any fire, explosion, riot, strike, walk out, labor controversy, flood, shortage of water, power, labor, terrorism, default or failure of the freight carriers, or any other cause beyond the reasonable control of the Company, omitted in whole or in part while such inability remains in effect shall be cancelled.

ALLOCATION: If, due to any of the events specified above (“Force Majeure”), Company is unable to supply Buyer’s total demands of Products specified in the contract, Company may allocate its available supply among its Buyers and its own requirements on a pro rata basis if practical, but in any event in its sole discretion.

GOVERNING LAW: This agreement shall be governed by and construed in Accordance with the laws of the Commonwealth of Virginia and all parties consent to jurisdictions and the courts located in the Cities of Norfolk and Virginia Beach, Virginia and agrees that no other courts shall be appropriate venue for any disputes arising out of the relationship between the Buyer and the Company. The parties knowingly and willingly waive any right they have under applicable law to a trial by jury in any dispute arising out of or in any way related to these Terms and Conditions or the issues raised by that dispute.

Entire Agreement: These Terms and Conditions represent the entire agreement between the parties hereto, and there are no understandings, representations, or warranties of any kind except those expressly set forth herein.

 

THE PRODUCTS ARE SOLD BY THE COMPANY WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE EXCEPT FOR THE SPECIFIC WRITTEN WARRANTY PROVIDED BY THE COMPANY AND LISTED IN WRITING ON THE COMPANY’S PRINTED LITERATURE. FURTHER, BUYER SHALL NOT BE ENTITILED TO RECOVER FROM THE COMPANY ANY CONSEQUENTIAL DAMAGES. DAMAGES TO PROPERTY, AND DAMAGES FOR LOSS OF USE, LOSS PROFITS, OR ANY OTHER INCIDENTIAL DAMAGE OTHAN THAN AS EXPRESSLY SET FORTH UNDER THE WRITTEN WARRANTY FROM THE COMPANY.