MASTER SALES AGREEMENT – STANDARD TERMS AND CONDITIONS OF BMC STOCK HOLDINGS, INC. AND ITS SUBSIDIARIES AND AFFILIATES. (Effective Date: October 1, 2016)
The following Standard Terms and Conditions shall apply to all sales of goods consummated on or after the Effective Date and all installation services contracted for on or after the Effective Date by BMC West, LLC; BMC East, LLC; and Coleman Floors, LLC and all of their predecessors, successors and assigns and/or any operating subsidiary or other affiliate (each such entity is referred to herein as “Dealer”):
- Prices: Unless specifically provided otherwise in a written quote or estimate, all quoted prices are valid only for 30 days from the date of the quote. All price quotes are valid only for the quantity, type and grade of materials and
services quoted. All prices quoted without sales or use tax shall have such tax added thereto. Plans, estimates and take-off quantities are solely estimates and are not guaranteed.
- Terms: Unless otherwise agreed in writing by Dealer for a particular order, account or market, payment to Dealer is due in full by the 10th of the month following the date of invoice. **EXCEPTION TO TERMS** IF A CONSTRUCTION LOAN IS OBTAINED, OR TAKE-OUT OR OTHER PERMANENT FINANCING IS OBTAINED, OR FUNDS GENERALLY DESIGNATED FOR PAYMENT OF BUILDING MATERIALS OR INSTALLATION SERVICES ARE ADVANCED TO CUSTOMER PRIOR TO THE DUE DATE SET FORTH ABOVE, PAYMENT TO DEALER IS DUE AND PAYABLE AT THE TIME OF SUCH LOAN, CLOSING OR ADVANCE OF FUNDS AND SUCH FUNDS SHALL BE HELD IN TRUST FOR THE BENEFIT OF DEALER. If all amounts due for such materials and services are not paid immediately after such loan closing or advance of funds, the officers or other individuals signing for Customer shall automatically and unconditionally become joint and several personal guarantors of the payment of said amounts.
- Time Price Differential (Service Charge): A TIME PRICE DIFFERENTIAL (SERVICE CHARGE) EQUAL TO THE LESSER OF 1.5% PERCENT PER MONTH OR THE MAXIMUM RATE PERMITTED BY LAW SHALL BE ADDED TO ALL INVOICES NOT PAID WHEN DUE UNDER PARAGRAPH 2, ABOVE.
- Waivers of Lien: Upon written request, Dealer shall execute and deliver a conditional partial or final lien waiver submitted by Customer in customary form or statutorily prescribed form where applicable, only upon receipt of payment in full for the invoice(s) to which such lien waiver relates. Dealer shall execute and deliver an unconditional partial or final lien waiver only after the check or other form of payment has cleared the financial institution on which it is drawn and Dealer has irrevocably received good funds.
- Credit Information: Customer and each of its owners and other principals individually grants Dealer permission to investigate and verify its or his/her individual credit information at the sole discretion of Dealer for the purposes of extending credit to Customer and thereafter renewing, maintaining and enforcing the terms of such extension of credit.
- Credit Reporting: Customer grants Dealer permission to report credit information to proper persons and/or credit bureaus.
- Restocking: All unused stock materials returned to Dealer for credit are subject to a handling charge of up to 25%. No credit for returns is allowed on special millwork, special order items, nonstock items, other specialty merchandise, or on dirty, weathered, damaged or unusable merchandise.
- Alteration or Revocation of Credit Line by Dealer: Any extension of credit by Dealer, and any agreement by which Dealer agrees to perform work or provide services to or for the benefit of Customer is subject to continuing review and approval by Dealer and/or its affiliated entities of Customer’s creditworthiness, payment history and financial condition. Dealer and/or its affiliated entities may at any time and from time to time modify the limits of any credit available to Customer and the terms and conditions upon which credit will be extended to Customer. Any waiver granted by Dealer in a particular instance shall not be deemed a waiver of any other or subsequent events or instances, and any delay or failure by Dealer to strictly enforce the terms of this Agreement shall not constitute a waiver of Dealer’s rights or an amendment of this Agreement unless set forth in a writing duly executed by an authorized Dealer representative. These terms and conditions supersede all prior or contemporaneous agreements, unless otherwise specifically agreed in writing by Dealer and Customer, and govern all sales of material and
installation services provided by Dealer and/or its affiliated entities to Customer. Dealer shall be under no obligation to extend or maintain credit at any time.
- Delivery and Acceptance: Delivery of material to the construction site constitutes delivery to Customer, regardless of whether Customer or its agent is physically present at time of delivery. Customer acknowledges and agrees that electronic records evidencing the time and place of such delivery shall be good and sufficient records for all purposes. Customer shall be conclusively deemed to have accepted such goods effective upon delivery, subject to the following sentence. Notwithstanding the foregoing acceptance, Customer may reject and Dealer will replace, any goods proven to be damaged, defective or non-conforming at the time of delivery, provided Customer provides written notice of such rejection along with reasonable supporting evidence of such conditions within five (5) days after delivery. Dealer shall seek to accommodate Customer’s requested delivery schedule, but shall not be responsible for failure or delay in delivery of materials. Customer waives any claims for damages arising by virtue of delay in delivery of material by Dealer, regardless of the cause of delay.
- Discounts: In the event any of Customer’s accounts with Dealer or its affiliated entities becomes delinquent or is in default at any time, or if Dealer or any of its affiliated entities files any lien against any project of Customer, all discounts and rebates otherwise available to Customer are subject to revocation at the discretion of Dealer.
- Default: Should any default be made in any of the terms hereunder, all amounts owed by Customer shall become immediately due and payable. In the event the account is referred for collection, Customer and any guarantors of Customer’s account shall pay all costs and expenses of collection to the extent permitted by law including, but not limited to, attorneys’ fees and court costs incurred by Dealer.
- Deadline for Submitting Customer Claims for Adjustments: All claims for incomplete, damaged, defective or nonconforming materials MUST be made in writing within five (5) days of delivery or they shall be waived. Any claims for adjustments or corrections of billings must be made within five (5) days of receipt of invoice or they shall be waived.
- Jurisdiction; Applicable Law: The parties consent that any action between parties to this agreement may be brought in any jurisdiction in which Dealer conducts business, at the sole option of Dealer. With respect to sales of materials not involving installation services, this Agreement shall be governed by and enforced in accordance with the laws of the state in which the majority of goods purchased by Customer are delivered. With respect to each project for which Dealer provides installation services, these terms and conditions shall be governed by and enforced in accordance with the laws of the state in which such project is located.
- ASSIGNMENT OF MANUFACTURERS’ WARRANTIES ON PRODUCTS MANUFACTURED BY OTHERS: ALL MANUFACTURERS’ WARRANTIES APPLICABLE TO MATERIAL PROVIDED BY DEALER BUT MANUFACTURED BY OTHERS SHALL BE ASSIGNED TO CUSTOMER TO THE EXTENT PERMISSIBLE BY LAW AND BY DEALER’S AGREEMENTS WITH SUCH MANUFACTURERS.
- LIMITED WARRANTY ON INSTALLED SERVICES AND ON PRODUCTS MANUFACTURED BY DEALER: ALL INSTALLATION SERVICES PERFORMED BY DEALER OR ITS SUBCONTRACTORS ARE WARRANTED TO BE FREE OF MATERIAL DEFECTS IN WORKMANSHIP FOR A PERIOD OF ONE (1) YEAR FROM SUBSTANTIAL COMPLETION OF SUCH SERVICES. ALL ROOF TRUSSES, FLOOR TRUSSES, WALL PANELS AND OTHER STRUCTURAL COMPONENTS MANUFACTURED BY DEALER OR ITS AFFILIATED ENTITIES ARE WARRANTED TO BE FREE OF MATERIAL DEFECTS IN WORKMANSHIP OR MATERIALS FOR A PERIOD OF ONE (1) YEAR FROM THE DATE OF DELIVERY OF SUCH COMPONENTS TO CUSTOMER. CERTAIN OTHER MANUFACTURED GOODS THAT ARE MANUFACTURED SPECIFICALLY FOR AND SOLD BY DEALER AND/OR ITS AFFILIATED ENTITIES UNDER PROPRIETARY PRIVATE LABEL BRANDS MAY BE COVERED BY A SEPARATE MANUFACTURER’S LIMITED PRODUCT WARRANTY SUPPLIED WITH SUCH PRODUCT(S), WHICH SEPARATE WARRANTY CONSTITUTES THE EXCLUSIVE WARRANTY APPLICABLE TO SUCH PRODUCTS.
- NO OTHER WARRANTIES: EXCEPT AS EXPRESSLY PROVIDED IN THE FOREGOING TWO PARAGRAPHS, THERE ARE NO WARRANTIES MADE WITH RESPECT TO THE FURNISHING OF INSTALLATION SERVICES OR MATERIALS BY DEALER OR ITS AFFILIATED ENTITIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
- LIMITATION OF REMEDIES: IN NO EVENT SHALL DEALER BE LIABLE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT OR ANY OTHER LEGAL THEORY. CUSTOMER ACKNOWLEDGES THAT ENFORCEMENT OF THE WARRANTIES SET FORTH HEREIN SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER. CUSTOMER WAIVES ALL OTHER REMEDIES, WARRANTIES, GUARANTIES AND LIABILITIES, EXPRESS OR IMPLIED, AND ACKNOWLEDGES THAT NEITHER DEALER NOR ITS AFFILIATED ENTITIES SHALL HAVE ANY LIABILITY OTHER THAN AS EXPRESSLY SET FORTH HEREIN.
- Applicability; Conflicting Provisions and Order of Precedence: These Standard Terms and Conditions shall govern and apply to any purchases, whether for materials or services, made by Customer from Dealer, or any division, affiliate or predecessor thereof, at any time whatsoever, whether past, present or future. In the event that any of these Standard Terms and Conditions conflict with terms of any other existing or future agreement between Dealer and Customer, including, without limitation, any work orders, purchase orders or other documents issued by Customer relating to any material purchases, installation services or jobs (whether or not signed by Dealer), then in each instance, these Standard Terms and Conditions shall prevail in all respects, notwithstanding any language in such other agreement or document to the contrary. Customer hereby acknowledges that this provision is a material inducement to Dealer in establishing a trade account for Customer and extending any payment terms or credit to Customer.
- Changes to these terms and conditions will be posted on our website.