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Terms and Conditions of Sale

Any sale of products (including the performance of after-sale services and the supply of spare or replacement products) (each “Product”, and collectively, “Products”) by Continental Building Products Operating Company LLC or any of its affiliates, subsidiaries, or divisions (collectively “seller”) shall be subject to the following terms and conditions. By ordering any Products, or by receiving any services from Seller, Buyer agrees to these terms and conditions and also represents to Seller that, at the time Buyer submits its order, and at the time Buyer receives delivery of the Products, buyer is, and will be solvent.

  1. Acceptance of Purchase Order. These terms and conditions shall not be varied except by a written document executed by an officer of Seller and which document expressly references an agreement by Seller to vary these terms and conditions. If the terms and conditions stated in Buyer’s purchase order or other documents are inconsistent with these terms and conditions, or if Buyer’s terms and conditions or documents seek to create any benefit for Buyer or impose any liability or obligation upon Seller which is greater or different than those in these terms and conditions, Seller’s acceptance shall constitute a counter-offer which incorporates these terms and conditions, and Buyer shall be deemed to have accepted Seller’s terms and conditions as part of the Seller’s counter-offer, unless Buyer notifies Seller to the contrary by writing within five (5) days after receiving Seller’s acceptance, in which event Seller may, but shall not be required to, revoke Seller’s acceptance. Seller’s acceptance of Buyer’s purchase orders or other offers is expressly conditioned upon Buyer’s assent to these terms and conditions, and additional, conflicting, or inconsistent terms and conditions, other than those contained herein, shall have no force or effect and shall not constitute any part of the agreement between Buyer and Seller.
  2. Terms of Payment. A prompt payment discount in the amount stated on the invoice will be allowed if payment is received by the discount date indicated on the invoice, provided no past due balances are outstanding at such time. Invoices not paid by the cash discount date are payable in full in accordance with the terms indicated on the invoice. Invoices not paid by such due date shall be considered past due and shall bear interest at the rate of one and one-half percent (1.5%) per month (eighteen percent (18%) per annum) or the maximum rate permitted by applicable law, if lower, thereafter until paid.
  3. Credit. If Buyer becomes insolvent or if Seller reasonably believes that Buyer’s ability to pay is doubtful, Seller reserves the right to require, without limitation, (i) payment in advance, (ii) that satisfactory security be posted, and/or (iii) that guaranty be made that the invoice amount will be paid promptly when due. If Buyer fails to deliver such payment, security, and/or guaranty, fails to comply with any other term of sale, or fails to make a payment when due, Seller reserves the right to cancel all unfilled orders without notice, and Buyer shall remain liable for all unpaid accounts including service charges. Buyer represents that it is solvent and agrees to pay for the Products according to these terms and conditions. Seller reserves the right to change a credit line without notice.
  4. Prices. Prices quoted are subject to any sales, use or production tax that may be applicable at the time of shipment. If the price quoted herein includes transportation charges, such prices shall be adjusted to reflect applicable changes in the transportation charges and any taxes on transportation charges.
  5. Shipments, Title, and Risk of Loss. Prices and terms for all Product shall be EXW – Seller’s plant (Incoterms 2010). Any and all claims for shipping loss or damage must be made by Buyer directly to the carrier.
  6. Cancellation. Buyer may not cancel or terminate for convenience or direct suspension of manufacture, except with the written consent of Seller and payment of Seller’s cancellation charges. If Buyer requests cancellation of a delivery after a carrier has departed from Seller’s plant, Seller shall endeavor to reconsign to another consignee. If Seller is able to reconsign, the cost of reconsignment shall be borne by Buyer. If Seller is unable to reconsign, all carrier charges from and returning to the Seller’s plant shall be borne by Buyer.
  7. Buyer’s Acceptance of Product. Buyer shall have the right and obligation to inspect the Product upon receipt, and such Product shall be deemed in conformity with the contract and accepted by the Buyer unless written notice of rejection, revocation of acceptance or breach of warranty, as the case may be, is received by the Seller within thirty (30) days after the Buyer’s receipt of the Product. All claims must be supported by Buyer’s and carrier’s written acknowledgements as to loss, shortage, or damage. ALL CLAIMS NOT SUBMITTED IN STRICT COMPLIANCE WITH THIS PROVISION, WHICH IS RECOGNIZED BY THE PARTIES AS REASONABLE, SHALL BE CONCLUSIVELY AND FINALLY WAIVED AND FOREVER BARRED.
  8. Security Interest/Agreement. To secure payment and performance of all obligations Buyer hereby grants to Seller a continuing security interest in all Products, including inventory, equipment, and goods, manufactured by or distributed by Seller, whenever sold, consigned or delivered, directly or indirectly, to or for the benefit of Buyer by Seller, wherever located, now owned and hereafter acquired including but not limited to all Gypsum board, Drywall, Defense Board, and joint compound, with a Brand, label or Trade Name as Continental Building Products, accessions, accessories, supplies and parts including repossessions and returns; and all proceeds from the sale thereof; and all existing or subsequently arising accounts and accounts receivable and supporting obligations which may from time to time hereafter come into existence during the term of this security agreement. Seller’s security interest is explicitly limited to outstanding obligations between Seller and Buyer. Buyer shall keep the goods free of any adverse lien, security interest, or encumbrance until Seller has been paid in full. Seller shall have all remedies of a secured party under the Uniform Commercial Code.
  9. Warranty. SELLER REPRESENTS THAT THE PRODUCTS SOLD HEREUNDER WILL BE FREE OF MATERIAL DEFECTS AT THE TIME OF MANUFACTURE. EXCEPT AS PROVIDED IN THE IMMEDIATELY PRECEEDING SENTENCE, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED (WHETHER WRITTEN, ORAL, STATUTORY, OR ARISING BY PREVIOUS COURSE OF DEALING OR USAGE OF TRADE), INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLER MAKES NO GUARANTY OF FINISHED WORK WHATSOEVER. Any Product which is not manufactured by Seller is not warranted by Seller, and shall be covered only by the express warranty, if any, of the manufacturer thereof.
  10. Exclusive Remedy. BUYER’S EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER IS THE DELIVERY BY SELLER OF ADDITIONAL QUANTITIES OF THE PRODUCT IN REPLACEMENT OF THE NONCONFORMING PRODUCT OR THE REFUND OF THE PURCHASE PRICE FOR THE PRODUCT WHICH IS COVERED BY THIS WARRANTY AT THE SELLER’S OPTION. Buyer shall pay all installation, removal and transportation costs (other than transportation of replacement product to the original stated destination, if any) incurred in effecting performance of thus warranty. Buyer and Seller agree that the exclusive remedy provided for in these terms and conditions does not cause the contract to fail of its essential purpose. SELLER SHALL HAVE NO OBLIGATION OR LIABILITY TO BUYER OR ANY OTHER PERSON OF ANY TYPE FOR INCIDENTAL, SPECIAL OR, CONSEQUENTIAL DAMAGES, LOSS OF PROFIT OR OTHER COMMERCIAL LOSS, OR ANY OTHER LOSS, DAMAGE OR EXPENSE ARISING OUT OF OR IN CONNECTION WITH THE USE, LOSS OF USE, NONPERFORANCE OR REPLACEMENT OF THE PRODUCT, whether such loss, damage or expense arose out of (i) a beach of any warranty or any other provision of the contract between Buyer and Seller, (ii) any negligence or other tort liability on the part of Seller, (iii) Seller’s strict liability, or (iv) any other legal theory. Seller shall have no obligation as to any Product which has been improperly stored or handled, or which has not been properly maintained by any person other than Seller.
  11. Electronic Conditions. In the event that any signature on this credit application is delivered by facsimile transmission or in a digital format via e-mail delivery, such signature(s) shall create a valid and binding obligation of the signatory with the same force and effect as if such facsimile or digital signature were an original thereof.
  12. Applicable Law/Forum Selection/Time for Bringing Claims. Buyer’s purchase order, these terms, and the rights and obligations of Seller and Buyer with respect to any sale of Products shall be governed in all respects by the substantive, internal laws of the Commonwealth of Virginia, without regard for conflict of laws principles. Buyer hereby submits itself to the personal jurisdiction of the Federal and State Courts located in Fairfax County, and Buyer and Seller agree that all legal proceedings arising between the parties shall only be instituted in the U.S. District Court for the Eastern District of Virginia, Alexandria Division, or the courts of the Commonwealth of Virginia, Fairfax County. Buyer shall assert and file (or be thereafter barred from asserting) any and all claims against Seller arising out of Seller’s sale of Product within one (1) year after Buyer’s rights with respect to such claim(s) first accrue.
  13. Legal Expenses. In the event Buyer fails to comply with the provisions of these terms or any invoice and/or fails to make any payments in connection with the purchase of any Product, Seller shall be entitled to recover its reasonable attorney’s fees and all other costs and expenses incurred in connection with any legal action Seller takes to enforce its rights under these terms, including without limitation, expert witness fees, court reporter fees, and collection expenses, whether or not such action proceeds to judgment.
  14. Confession of Judgment. Buyer hereby irrevocably authorizes and empowers any attorney-at-law to appear in any court of record and to confess judgment against Buyer for any unpaid amounts owed to Seller as evidenced by an affidavit signed by an authorized representative of Seller setting forth the amount then due, attorneys’ fees plus cost of suit, and to release all errors, and waive all rights of appeal. If a copy of these terms and their corresponding contract, verified by an affidavit, shall have been filed in the proceeding, it will not be necessary to file the original as a warrant of attorney. Buyer waives the right to any stay of execution and the benefit of all exemption laws now or hereafter in effect. No single exercise of the foregoing warrant and power to confess judgment will be deemed to exhaust the power, whether or not any such exercise shall be held by any court to be invalid, voidable, or void: but the power will continue undiminished and may be exercised from time to time as Seller may elect until all amounts from Buyer to Seller have been paid in full. Buyer hereby waives and releases any and all claims or causes of action which Buyer might have against any attorney acting under the terms of authority or causes of action which Buyer has granted herein arising out of or connected with the confession of judgment hereunder.
  15. Authority of Buyer’s Representatives. Seller shall be entitled to assume that orders given and documents or receipts executed by employees of the Buyer customarily relied upon shall have been validly authorized by Buyer and that Buyer will be responsible therefore, unless Seller is otherwise informed in writing in advance.
  16. Force Majeure. Seller shall not be liable to Buyer on other person for Seller’s failure to perform hereunder or its delay in manufacturing, shipping or delivering the Product due to any contingency beyond its control, including but not limited to acts of God, fires, floods, wars, insurrections, riots, civil disturbance, sabotage, accidents, strikes, labor disputes, lock-outs, shortages of supplies or materials, carriers’ or suppliers’ delays or defaults, inability to procure materials from the usual sources of supply, or requirements or limitations of a governmental authority of any kind. Upon the occurrence of any such event, Seller may, at its option, delay shipment or performance, or apportion existing supplies among customers or cancel the contract without any liability to Buyer for such action; provided, however, that Buyer agrees to pay to Seller upon its standard terms the purchase price of the Product delivered in accordance with the contract. In no event shall Seller be obligated to purchase materials from others in order to enable it to deliver Product to Buyer hereunder.
  17. Modification; Assignment; Waiver. Without Seller’s prior written consent (i) no modification or amendment of the contract between Seller and Buyer, including these terms and conditions, shall be binding upon Seller, and (ii) Buyer may not assign any of its rights or obligations under the contract by operation of law or otherwise. Seller’s failure to endorse any term or condition or to exercise any of its rights shall not constitute a waiver or relinquishment of any such term, condition or right and shall not affect Seller’s right to enforce strict compliance with the contract.
  18. Severability. Should any portion or clause of these terms be found to be invalid, illegal, void, voidable, or unenforceable for any reason whatsoever, these terms shall be read as if they did not contain said portion or clause. Buyer and Seller intend for any such invalid portion or clause to be severable from the remainder. Any such clause or portion and its severance shall not affect the validity or effect of the remaining provisions of these terms.
  19. Indemnification. Seller shall not be liable to Buyer for, and Buyer agrees that it will indemnify and hold and save Seller harmless from and against any damages, injury or expense (including, without limitation, penalties and fees assessed by governmental authorities and reasonable attorneys’ fees and expenses) incurred by or asserted against Seller by reason of, in whole or in part, any act or omission on the part of the Buyer or any of its directors, officers, employees or agents. Such acts or omissions may include, but are not limited to, failure to convey the warnings and safety information required by law, including the warnings and safety information contained herein,
  20. Equal Opportunity Employer. The “Equal Opportunity Clause” as prescribed by Federal Executive Order and Regulation is incorporated herein by reference and is made a part of this contract as it fully set forth herein.
  21. Fair Labor Standards Act. Seller hereby certifies that the Product sold pursuant to these terms and conditions is manufactured in compliance with the applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act, as amended, and all Regulations and Orders of the United States Department of Labor issued under Section 14 thereof.
  22. Material Safety Data Sheets. The Seller agrees to provide Buyer with applicable material safety data sheets (MSDS) at the time of the initial purchase and at a minimum annually thereafter. Seller may satisfy such requirement by making MSDS information available on its website. Buyer agrees to convey the pertinent information/warnings contained therein to all persons who may purchase, use or come in contact with said Products in accordance with applicable governmental requirements.
  23. Application of Unapplied Cash and Open Credit. Seller reserves the right to apply any rebate, unapplied cash, or open credit to unpaid invoices in Buyer’s account that have a past due balance over 61 days or that contain disputed liabilities.
  24. Successors/Assignability of Debt. These terms and conditions shall inure to the benefit of, and be binding upon the successors and assigns of Seller and Buyer, Seller has the unconditional and absolute right to assign to any party of its choosing, without notice to Buyer, (i) any claims arising under these terms and conditions and (ii) any and all debt owed by Buyer to Seller.