Terms and Conditions of Sale "Terms"
TERMS AND CONDITIONS OF SALE (“Terms”)
1. Parties. All references in this document to “Seller” include White Cap Supply Holdings, LLC and any parent, subsidiary, or affiliate thereof (including any division of the foregoing) whether or not performing any or all of the scope hereunder or specifically identified herein. All references in this document to “Buyer” include any parent, subsidiary, or affiliate of the entity placing the order. Buyer and Seller may be referred to in these Terms individually as a “Party” and collectively as the “Parties”.
2. General. All sales to Buyer are subject to these Terms, which shall prevail over any additional or inconsistent terms of Buyer’s purchase order or other Buyer documents. Additional or different terms and conditions in any way altering or modifying these Terms are expressly rejected by Seller and shall not be binding upon Seller unless specifically accepted in writing by Seller’s authorized representative. No modification or alteration of these Terms shall result by Seller’s shipment of goods or provision of services (such goods and services hereinafter collectively referred to as “Goods”) following receipt of Buyer’s purchase order or other documents containing additional, conflicting, or inconsistent terms. These Terms are binding on the Parties and their successors and permitted assigns. All agreements, notices, disclosures, and other communications Seller provides to Buyer electronically shall satisfy any legal requirements that such communications be in writing. No representations, inducements, promises, or agreements, whether oral or written, have been made by Seller, or anyone acting on Sellers’ behalf, that are not contained herein, and any prior agreements, promises, negotiations, or representations between the Parties are superseded by these Terms. Buyer acknowledges and agrees it has not relied on any representations, inducements, promises, or agreements, whether oral or written, by Seller, or anyone acting on Seller’s behalf, that are not contained herein. All product information on Seller’s website or in Seller’s catalog or other marketing materials is provided by the applicable manufacturer and/or supplier and shall not be deemed a representation, warranty, or claim of Seller. Seller reserves the right to accept or reject any order of Buyer.
3. Prices. Prices on Seller’s website, in Seller’s catalogs, or in Seller’s quotes are subject to change without notice, and all such prices expire and become invalid if not accepted within 10 calendar days from the date of issue, unless otherwise noted by Seller in writing. Price extensions, if made, are for Buyer’s convenience only. Any pricing-related mathematical, stenographic, or clerical errors are not binding on Seller. Prices shown do not include any sales, excise, use, or other governmental tax or charge payable by Seller to any federal, state, or local authority. Any taxes now or hereafter imposed upon Goods will be added to the purchase price, and Buyer shall reimburse Seller for any such tax or provide Seller with an acceptable tax exemption certificate. Buyer shall keep all prices and other terms confidential except to the extent disclosure is required by law.
4. Grant of Security Interest. To secure Buyer’s payment and performance, Buyer grants to Seller a continuing purchase money security interest in all Goods sold to or for the benefit of Buyer by Seller and all accounts receivable or proceeds from the sale thereof until Buyer pays Seller in full for such Goods. Seller’s purchase money security interest is explicitly limited to outstanding obligations between Buyer and Seller. Buyer authorizes Seller to file a financing statement or other document in the filing office of any jurisdiction(s) Seller deems appropriate to perfect Buyer’s security interest. Buyer waives its right to receive a verification statement evidencing the registration of a UCC Financing Statement or UCC Change Statement.
5. Force Majeure. Seller shall not be liable to Buyer or any third party claiming through Buyer for delay or default in delivery resulting from any cause beyond Seller’s reasonable control, including, but not limited to, strikes or other labor troubles; fire, damage, or destruction of Goods; wars (declared or undeclared); acts of terrorism; manufacturers’ shortages; availability or timeliness of transportation, materials, fuels, or supplies; voluntary or mandatory compliance with any governmental act, regulation, or request; epidemic, pandemic, global health emergency, order by governmental authorities, or restrictions on travel or trade related to the foregoing; and acts of God (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event: (a) the time for Seller’s performance shall be reasonably extended; and (b) the purchase price shall be adjusted for any increased costs to Seller resulting from such Force Majeure Event.
6. Warranty. Seller is a reseller of Goods only and does not provide any warranty for the Goods it supplies hereunder. Notwithstanding the foregoing limitation, Seller shall pass through to Buyer any transferable manufacturer’s standard warranty with respect to Goods purchased hereunder. EXCEPT AS SET FORTH HEREIN, NO WARRANTY OR AFFIRMATION OF FACT OR DESCRIPTION, EXPRESS OR IMPLIED, IS MADE BY SELLER. BUYER AND PERSONS CLAIMING THROUGH BUYER (COLLECTIVELY, “CLAIMANT”) SHALL SEEK RECOURSE EXCLUSIVELY FROM THE RELEVANT MANUFACTURER IN CONNECTION WITH ANY DEFECTS IN OR FAILURES OF GOODS, AND THIS SHALL BE THE EXCLUSIVE RECOURSE OF CLAIMANT FOR DEFECTIVE GOODS, WHETHER THE CLAIM SHALL SOUND IN CONTRACT, TORT, STRICT LIABILITY, PURSUANT TO STATUTE, OR FOR NEGLIGENCE. BUYER SHALL PASS THESE TERMS TO SUBSEQUENT BUYERS AND USERS OF THE GOODS. SELLER EXCLUDES AND DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON‑INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. SELLER ASSUMES NO RESPONSIBILITY WHATSOEVER FOR INSTALLATION OF GOODS; USE, MISUSE, ALTERATION, OR MODIFICATION OF GOODS; OR SELLER’S INTERPRETATION OF PLANS OR SPECIFICATIONS PROVIDED BY BUYER. SELLER DOES NOT CERTIFY OR GUARANTEE ANY GOODS COMPLY WITH ANY STATUTES, LAWS, CODES, ORDINANCES, OR REGULATIONS.
7. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT, WHETHER IN CONTRACT, WARRANTY, INDEMNITY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, SHALL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR SIMILAR DAMAGES, SUCH AS LOSS OF USE, LOST PROFITS, ATTORNEYS’ FEES, OR DELAY DAMAGES, EVEN IF SUCH DAMAGES WERE FORESEEABLE. SELLER’S LIABILITY FOR ANY CLAIM SHALL NOT EXCEED THE AMOUNT PAID TO SELLER FOR THE GOODS THAT ARE THE SUBJECT OF SUCH CLAIM. ALL BUYER CLAIMS MUST BE BROUGHT WITHIN ONE YEAR OF ACCRUAL OF A CAUSE OF ACTION.
8. Indemnification. Buyer shall indemnify, defend, and hold Seller and its officers, directors, employees, contractors, and agents harmless from any and all costs (including attorneys’ and accountants’ fees and expenses), liabilities, and damages resulting from or related to any third party (including Buyer’s employees) claim, complaint, and/or judgment arising from Buyer’s use of any Goods, any negligent, intentional, or tortious act or omission of Buyer, or any breach of these Terms by Buyer.
9. Freight, Title and Risk of Loss. If delivery occurs in Seller’s own vehicles, shipments shall be delivered F.O.B. Buyer’s designated delivery site. In all other cases, the F.O.B. point shall be Seller’s store or warehouse, and all responsibility and costs of shipping and delivery beyond Seller’s store or warehouse shall be borne by Buyer. Title and risk of loss shall pass to Buyer at the applicable F.O.B. point. All claims for shortage of Goods or for loss or damage to Goods as to which Seller has the risk of loss shall be waived unless Buyer, within three business days after receipt of the short or damaged shipment, gives Seller written notice fully describing the alleged shortage or damage. Partial shipments are permitted at Seller’s discretion.
10. Changes and Returns. Any change in product specifications, quantities, destination, shipping schedules, or any other aspect of the scope of Goods must be agreed to in writing by Seller and may result in a price and/or delivery adjustment by Seller. No credit for Goods returned by Buyer shall be given without Seller’s written authorization. All returns are subject to a restocking charge. The following items are not returnable: (a) special/customized product, including fabricated and custom made‑to‑order direct items; (b) hazmat items; (c) items shipped outside of the United States; (d) non‑catalog items and volume purchases with the exception of defective or expired products; (e) warranty items; or (f) factory direct items.
11. Payment. Unless otherwise agreed in writing, payment terms are net 30 days from delivery, payable in United States of America (“U.S.”) dollars. Notwithstanding the foregoing, all orders are subject to Seller’s continuing approval of Buyer’s credit. Seller, in its sole discretion, may suspend or cancel performance, or require different payment terms, including, but not limited to, cash on delivery or in advance of shipment. In addition, Seller may, in its discretion, require an advance deposit of up to 100% of Seller’s selling price for any specially-manufactured Goods. Payments due hereunder shall be made in the form of cash, check, money order, ACH, or other tender approved in writing by Seller. Buyer shall pay any surcharge Seller may assess for processing credit card payments. Surcharges will only be assessed where legally permitted and only in accordance with card brand regulations. Seller may, in its sole discretion, apply Buyer’s payment against any open charges. Past due accounts bear interest at the lesser of 1.5% per month or the maximum rate permitted by applicable law, continuing after Seller obtains judgment against Buyer. Seller may exercise setoff or recoupment to apply to or satisfy Buyer’s outstanding debt. Buyer shall have no right of setoff hereunder, the same being expressly waived hereby. Seller expressly reserves its right to file liens in the ordinary course of business per applicable law and expressly disclaims any request or requirement for a waiver of lien rights by Buyer. Seller reserves all rights to invoice and be paid for Goods provided to Buyer, and any terms contained in any of Buyer’s purchase orders or other documents that purport to limit in any way the time or manner within which Seller may invoice Buyer are hereby waived by Buyer.
12. Destination Control Statement. Export sales of Goods are subject to the following: THESE ITEMS ARE CONTROLLED BY THE U.S. GOVERNMENT AND AUTHORIZED FOR EXPORT ONLY TO THE COUNTRY OF ULTIMATE DESTINATION FOR USE BY THE ULTIMATE CONSIGNEE OR END‑USER(S) HEREIN IDENTIFIED. THEY MAY NOT BE RESOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF TO ANY OTHER COUNTRY OR ANY PERSON OTHER THAN THE AUTHORIZED ULTIMATE CONSIGNEE OR END‑USER(S), EITHER IN THEIR ORIGINAL FORM OR AFTER BEING INCORPORATED INTO OTHER ITEMS, WITHOUT FIRST OBTAINING APPROVAL FROM THE U.S. GOVERNMENT OR AS OTHERWISE AUTHORIZED BY U.S. LAW AND REGULATIONS.
13. Collection Costs. Buyer shall pay Seller all costs and expenses of collection, suit, or other legal action brought as a result of the commercial relationship between them, including, but not limited to, all actual attorneys’ and fees, costs, and expenses and collection costs, incurred pre‑suit, through trial, on appeal, and in any administrative or bankruptcy proceedings. Any cause of action Seller has against Buyer may be assigned without Buyer’s consent to any affiliate, parent, or subsidiary of White Cap Supply Holdings, LLC.
14. Disputes. These Terms, Buyer’s account, any order of Goods, and the business relationship between Buyer and Seller shall be governed by and construed in accordance with the laws of the State of Georgia without regard to its conflict of laws rules, and specifically excluding the UN Convention on Contracts for the International Sale of Goods. The Parties agree that any legal action arising under or related to this Agreement shall be brought in Cobb County, Georgia, and any right to object to such venue or to assert the inconvenience of such forum is hereby waived. The Parties waive all rights to A TRIAL BY jury.
15. Termination. If Buyer fails to comply with these Terms, Seller may immediately terminate or restrict any order upon notice to Buyer. Buyer certifies it is solvent and will advise Seller immediately if it becomes insolvent. Buyer agrees to send Seller written notice of any changes in the form of ownership of Buyer’s business within five business days of such changes. Buyer and Seller are the only intended beneficiaries of this document, and there are no third-party beneficiaries.
16. Severability. The invalidity or unenforceability of all or part of these Terms will not affect the validity or enforceability of the other terms. The Parties agree to replace any void or unenforceable term with a new term that achieves substantially the same practical and economic effect and is valid and enforceable.
17. Safety Data Sheets. Safety Data Sheets (“SDS”) for OSHA defined hazardous substances are prepared and supplied by the manufacturers of Goods. SELLER MAKES NO WARRANTIES AND EXPRESSLY DISCLAIMS ALL LIABILITY TO BUYER WITH RESPECT TO THE ACCURACY OF THE INFORMATION OR THE SUITABILITY OF THE RECOMMENDATIONS IN ANY SDS. BUYER IS SOLELY RESPONSIBLE FOR ANY RELIANCE ON OR USE OF ANY SUCH INFORMATION, AND FOR USE OR APPLICATION OF ANY GOODS. Any SDS can be located and printed free of charge from Seller’s website.
18. Privacy. Seller’s Privacy Policy is published at Privacy Policy and is incorporated herein by this reference.
19. Survival. These Terms survive termination, cancellation, or completed performance of any sale as long as necessary to allow the aggrieved Party to fully enforce its rights.