HD Supply Facilities Maintenance ("HDSFM") Terms of Sale ("Terms")
FORMATION. THESE TERMS OF SALE GOVERN EXCLUSIVELY ALL PRODUCT PURCHASES AND PREVAIL OVER ANY ADDITIONAL OR INCONSISTENT TERMS IN ANY BUYER DOCUMENT, which are expressly objected to and shall not be binding upon Seller unless specifically accepted in writing by Seller's authorized representative.
Prices. Prices are subject to change without notice. No math or clerical errors are binding on HDSFM. Prices do not include any sales, excise, or other tax by any federal, state or local authority. Buyer shall reimburse any taxes imposed upon sales or shipments unless HDSFM receives an acceptable tax exemption certificate. All prices and other terms shall be kept confidential except to the extent Buyer is legally required to disclose.
Delivery. HDSFM is not liable for delay or default in delivery resulting from any cause beyond HDSFM's reasonable control, including, but not limited to, governmental action, 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, and acts of God (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event: (a) the time for HDSFM performance shall be extended reasonably and the Parties shall adjust all affected dates accordingly; (b) the purchase price shall be adjusted for any increased costs to HDSFM resulting from such Force Majeure Event; and (c) Buyer shall not be entitled to any other remedy. Partial shipments are permitted at HDSFM'S discretion.
Warranty. HDSFM is a reseller of goods only, and as such does not provide any warranty for the goods it supplies. Notwithstanding this AS-IS limitation, HDSFM shall pass through to Buyer any transferable manufacturer's standard warranties. BUYER AND PERSONS CLAIMING THROUGH BUYER SHALL SEEK RECOURSE EXCLUSIVELY FROM MANUFACTURERS FOR ANY DEFECTS IN OR FAILURES OF GOODS, AND THIS SHALL BE THE EXCLUSIVE RECOURSE OF BUYER AND PERSONS CLAIMING THROUGH BUYER FOR DEFECTIVE GOODS, WHETHER THE CLAIM SOUNDS IN CONTRACT, TORT, STRICT LIABILITY, PURSUANT TO STATUTE, OR FOR NEGLIGENCE. BUYER MAY PASS THESE TERMS TO SUBSEQUENT BUYERS AND USERS OF GOODS. HDSFM EXCLUDES AND DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. HDSFM ASSUMES NO RESPONSIBILITY WHATSOEVER FOR ANY INTERPRETATION OF PLANS, CODES OR SPECIFICATIONS PROVIDED BY BUYER, AND BUYER'S ACCEPTANCE AND USE OF GOODS SHALL BE PREMISED ON BUYER'S FINAL APPROVAL OR BY BUYER'S RELIANCE ON ARCHITECTS, ENGINEERS, OR OTHER THIRD PARTIES RATHER THAN ON HDSFM'S INTERPRETATION. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT, WHETHER IN CONTRACT, WARRANTY, INDEMNITY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING DIRECTLY OR INDIRECTLY OUT OF THE PERFORMANCE OR BREACH OF THESE TERMS, SHALL HDSFM BE LIABLE FOR: (A) 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 OR CAUSED BY SELLER'S BREACH OF THIS AGREEMENT; (B) ANY CLAIM THAT PROPERLY IS A CLAIM AGAINST THE MANUFACTURER; OR (C) ANY AMOUNT EXCEEDING THE AMOUNT PAID TO HDSFM FOR GOODS WHICH ARE SUBJECT OF SUCH CLAIM(S). ALL CLAIMS MUST BE BROUGHT WITHIN ONE YEAR OF ACCRUAL OF A CAUSE OF ACTION.
Indemnification. Buyer shall indemnify, defend, and hold Seller its officers, directors, employees 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 furnished hereunder, as well as any negligent, intentional, or tortious act or omission of Buyer or any material breach by Buyer of these Terms.
Title and Risk. When goods are delivered to Buyer, however delivered, the F.O.B. point shall be Buyer's designated delivery site where title and risk of loss shall pass to Buyer. 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 3 calendar days after receipt of the short or damaged shipment, contacts Seller, written notice fully describing the alleged shortage or damage. Partial shipments are permitted at Seller's discretion.
Changes and Returns. No credit for returns shall be given without HDSFM'S written authorization. All returns are subject to a restocking charge.
Payment. Payment terms are net 30 days from delivery, and all orders are subject to HDSFM'S continuing credit approval. If Buyer's credit becomes unsatisfactory HDSFM, in its sole discretion, may suspend or cancel performance, or require different payment terms, including cash on delivery or in advance of shipment. HDSFM may also require an advance deposit of up to 100% of the price for any specially manufactured goods. Payment must be made by cash, check, or money order, or other tender approved by HDSFM. HDSFM may 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 HDSFM obtains judgment against Buyer. HDSFM may exercise setoff or recoupment to satisfy Buyer's outstanding debt. Buyer shall have no right of setoff.
Export. Buyer shall not export or re-export, directly or indirectly, any part of the goods or related technology obtained from HDSFM except in accordance with applicable export laws and regulations of the U.S. Further, a Buyer that is a non-U.S. company or citizen shall similarly limit any export or re-export activity to that which would be deemed compliant with U.S. export laws and regulations if performed by a U.S. company or citizen.
Collection. Buyer shall pay HDSFM all expenses of collection, suit, or other legal action brought as a result of the commercial relationship between them, including, but not limited to, all attorneys' fees, and collection costs incurred pre-suit, through trial, on appeal, and in any administrative or bankruptcy proceedings.
Disputes. All disputes arising out of or related to the business relationship between Buyer and HDSFM shall be governed exclusively by the laws of Georgia, excluding its conflicts of laws rules. 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 waived. The Parties waive all right to a jury trial.
Termination. If Buyer fails to comply with these Terms, HDSFM may terminate or restrict any order immediately upon notice to Buyer. Buyer certifies that it is solvent and that it will advise HDSFM immediately if it becomes insolvent. Buyer shall send HDSFM written notice of any changes in the form of ownership of Buyer's business within 5 days of such changes. Buyer and HDSFM are the only intended beneficiaries of this document, and there are no third party beneficiaries.
Invalidity. 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.
Survival. These Terms shall survive termination, cancellation and completed performance of any sale as long as necessary to allow the aggrieved party to fully enforce its rights.
Sole Recourse. Vendor's sole recourse for any damages, wrongs, claims, suits, actions, liabilities, losses, costs (including reasonable attorney fees and costs), expenses, judgments or damages in any way arising out of or relating to this Agreement is limited solely to a claim against HD Supply Support Services. In no event shall Vendor bring any claim against any direct or indirect member, manager, partners, owner, officer, director, employee, agent, representative or Affiliate of HD Supply Support Services, or any successor of any of the foregoing (each, an "Excluded Person"). Each Excluded Person shall also be deemed entitled, insofar as may be necessary or useful to it, to the protections and benefits of this Agreement. Each Excluded Person is free to enforce this paragraph directly.